A stream so small and shoal that no logs can be driven in it without being propelled by persons traveling on its banks is private property, and not subject to any public servitude for the passage of logs: Treat v. Lord, 42 Me. 552; S. C., 66 Am. Dec. 298.

Cooley, J., delivering the opinion of the court in Thunder Bay Booming Co. v. Speechly, 31 Mich. 336, 343, S. C., 18 Am. Rep. 184, 190, said: "The possibility of occasional use during occasional and brief freshets certainly could not make a stream a public highway." In Rhodes v. Otis, 33 Ala. 578, S. C., 73 Am. Dec. 439, it was decided that a stream never before used for transportation, but used in a single instance only for floating lumber only six or seven miles, is not a navigable river; and that no use of a stream by one party alone, however valuable it may be to him, will make it a navigable stream. In Wadsworth v. Smith, 11 Me. 278, S. C., 26 Am. Dec. 525, it was held that a small stream, in its natural state not floatable, is absolutely private, and though made floatable by the owner by artificial means, is not subject to public use. In the case of Meyer v. Phillips, 97 N. Y. 485, S. C., 49 Am. Rep. 538, the defendant, claiming a prescriptive right in the public, proposed to float logs down a private stream running across the plaintiff's land whenever he chose. The floating would do some injury to the banks and to other lands of the plaintiff. In thirty years the stream had been used for floating logs by not more than twelve person, and by not more than three or four in any year, and for not more than from three to six days in any year. The court decided that the defendant had no right to float logs down this stream through the lands of the plaintiff, and that an action lay to restrain the defendant and to settle the plaintiff's rights. In Pearson v. Rolfe, 76 Me. 380, it was decided that a mill-owner is not legally bound to furnish any public passage for logs over his dam or through his mill at a time when the river at that place, in its natural condition, does not contain water enough to be floatable, although the river is generally of a floatable character. He is not bound to provide a public way for the passage of logs over his dam better than would be afforded by the natural condition of the river, unobstructed by his mills. But if one turns the waters of a navigable river from it accus. tomed bed, the public will have the right to use the stream in its new channel: Drinel v. Veazie, 44 Me. 167; S. C., 69 Am. Dec. 94. So when a public river becomes frozen over, all persons have a right to travel on the ice. And if any one cuts a hole in the ice, in or near the traveled way, he will be liable for injuries thereby sustained by those passing over the way, without fault or negligence on their part: French v. Camp, 18 Me. 433; S. C., 36 Am. Dec. 728.

DAMS IN NAVIGABLE STREAMS.-- This subject is considered at length in the note to McCoy v. Stanley, 57 Am. Dec. 692.

POWER OF STATE TO REGULATE USE OF NAVIGABLE STREAMS. - In the absence of specific legislation by Congress, the legislature of a state may authorize the erection of bridges, piers, dams, or booms in a river lying wholly within the state, although such erections may interfere with the public right of navigation: Pound v. Turck, 95 U. S. 459; Cardwell v. American Bridge Co., 113 Id. 205; Heerman v. Beef Slough Mfg. etc. Co., 8 Biss. 334; United States v. Beef Slough Mfg. etc. Co., Id. 421; Hooker v. Cummings, 11 Am. Dec. 249; Lansing v. Smith, 21 Id. 89; Attorney-General v. Stevens, 22 Id. 537; Parker v. Cutler Mill-dam Co., 37 Id. 56; Bailey v. Philadelphia etc. R. R. Co., 44 Id. 593; People v. City of St. Louis, 48 Id. 339; Moor v. Veazie, 52 Id. 655; Lorman v. Benson, 77 Id. 435. Under a legislative authority to con struct a railway between certain points, the company may build, maintain,

and repair necessary drawbridges across navigable streams, and will not be liable for a temporary obstruction of the stream in the course of such work: Hamilton v. Railroad Co., 34 La. Ann. 970; S. C., 44 Am. Rep. 451; see also City of Chicago v. McGinn, 51 Ill. 266; S. C., 2 Am. Rep. 295; Hickok v. Hine, 23 Ohio St. 523; S. C., 13 Am. Rep. 255. Both mill-owners on floatable streams and those running logs are entitled to a reasonable use of the common boom; the right of passage is the superior, but not a usurping or exclusive, right; the law authorizing mills puts some encumbrance upon the rights of passage: Pearson v. Rolfe, 76 Me. 380. Cooley, J., delivering the opinion of the court in Middleton v. Flat River Booming Co., 27 Mich. 533, 535, said: "Flat River is a stream valuable for floatage, but not for navigation in the more enlarged meaning of the term. On such a stream it cannot be said that the right of floatage is paramount to the use of the water for machinery. Each right should be enjoyed with due regard to the existence and protection of the other." The right to obtain water-power from a stream for milling purposes, and the right to use the stream for the floatage of logs, modify each other; and though the exercise of each may render the other less valuable, there is no ground for complaint if it is considerate and reasonable: Buchanan v. Grand River Log Co., 48 Mich. 364.

REMEDIES AVAILABLE TO VINDICATE PUBLIC AND INDIVIDUal Right to USE STREAMS AS HIGHWAYS. Any unlawful obstruction of the right of navi. gation is a common nuisance, and is therefore remediable by indictment: Gould on Waters, sec. 121; Hale, De Jure Maris, c. 3; Hale, De Portibus Maris, c. 7; Rex v. Russell, 6 Barn. & C. 56; Rex v. Ward, 4 Ad. & E. 384; Rex v. Grosvenor, 2 Stark. 571; Rex v. Tindall, 6 Ad. & E. 143; Regina v. Betts, 16 Q. B. 1022; Regina v. Randall, Car. & M. 496; Gates v. Blincoe, 2 Dana, 158; S. C., 26 Am. Dec. 440; Veazie v. Dwinel, 50 Me. 479; Gerrish v. Brown, 51 Id. 256; Commonwealth v. Alger, 7 Cush. 53; People v. Vanderbilt, 26 N. Y. 287; State v. Babcock, 20 N. J. L. 29; Commonwealth v. Church, 1 Pa. St. 105; Dugan v. Bridge Co., 27 Id. 303; S. C., 67 Am. Dec. 464; Sigler v. State, 7 Baxt. 493; Walker v. Shepardson, 2 Wis. 384; S. C., 60 Am. Dec. 423. Rice, J., delivering the opinion of the court in Veazie v. Dwinel, 50 Me. 490, said: "If, therefore, any person obstruct a stream which is by law a public highway, by casting therein waste material, filth, or trash, or by depositing material of any description except as connected with the reasonable use of such stream as a highway, or by direct authority of law, he does it at his peril. It is a public nuisance, for which he would be liable to an indictment and to an action at law by any individual who should be specially damaged thereby." Or a court of equity may be resorted to for relief upon an information filed by the attorney-general: Gould on Waters, sec. 121; Attorney-General v. Lonsdale, L. R. 7 Eq. 377; Attorney-General v. Terry, L. R. 9 Ch. 423; Attorney-General v. Tomline, L. R. 12 Ch. Div. 214; Georgetown v. Alexandria Canal Co., 12 Pet. 91; Yolo Co. v. Sacramento, 36 Cal. 193; Attorney-General v. Boston Wharf Co., 12 Gray, 553; Attorney-General v. New Jersey R. R. Co., 3 N. J. Eq. 136; Newark Plank Road Co. v. Elmer, 9 Id. 75; Gifford v. New Jersey R. R. Co., 10 Id. 171, 177; Attorney-General v. Delaware R. R. Co., 27 Id. 631. And when the nuisance causes both a public and a private injury, a suit in equity may be brought by information and bill: Attorney-General v. Forbes, 2 Mylne & C. 123; Attorney-General v. Lonsdale, L. R. 7 Eq. 377. If an individual sustains special injury from the existence of a public nuisance, he may maintain a bill in equity without the attorney-general: Cook v. Bath, L. R. 6 Eq. 177; United States v. Railroad Bridge Co., 6 McLean, 517; Mussey v. Hershey, 42 Iowa, 356; Treat v. Bates,

27 Mich. 390; Hickok v. Hine, 23 Ohio St. 523; S. C., 13 Am. Rep. 255; Walker v. Shepardson, 2 Wis. 384; S. C., 60 Am. Dec. 423; Potter v. Menasha, 30 Id. 492; Mississippi etc. R. R. Co. v. Ward, 2 Black, 485; Parker v. Win nipiseogee Lake Co., Id. 545.

Where a public nuisance consisting of the obstruction of a navigable river works a private injury, the party injured may have its existence restrained by injunction: 3 Pomeroy's Eq. Jur., sec. 1351; Walker v. Allen, 76 Ala. 456; People v. City of St. Louis, 5 Gilm. 351; S. C., 48 Am. Dec. 339; Hickok v. Hine, 23 Ohio St. 523; S. C., 13 Am. Rep. 255; Attorney-General v. Terry, L. R. 9 Ch. 423. In the last case, a wharf-owner drove piles into the bed of a river, extending the wharf so as to occupy three feet out of a breadth of about sixty feet available for navigation, and it was held to be such an obstruction as would be restrained at the suit of a municipal corporation empowered by act of Parliament to remove obstructions. But a court of equity will not enjoin the erection of a runway for logs, upon the ground that it will divert the course of a navigable river, unless it appears that the threatened structure will be a nuisance per se: City of St. Louis v. Knapp, 2 McCrary, 516. Where any individual's right to use a watercourse as a highway is interfered with by obstructions unlawfully caused by another, and he suffers special injury thereby, he may maintain an action for damages against the party responsible for the injury: St. Louis etc. R'y Co. v. Meese, 44 Ark. 414; South Carolina R. R. Co. v. Moore, 28 Ga. 398; S. C., 73 Am. Dec. 778; Porter v. Allen, 8 Ind. 1; S. C., 65 Am. Dec. 750; Brown v. Chadbourne, 31 Me. 9; 8. C., 50 Am. Dec. 641; Thunder Bay Booming Co. v. Speechly, 31 Mich. 336; S. C., 18 Am. Rep. 184; Watts v. Tillabawassee Boom Co., 52 Id. 203; Shaw v. Crawford, 10 Johns. 236; Briggs v. New York etc. R. R. Co., 30 Hun, 291; Dugan v. Bridge Co., 27 Pa. St. 303; S. C., 67 Am. Dec. 464; Heerman v. Beef Slough Mfg. etc. Co., 8 Biss. 334.

Where an obstruction to navigation is a public nuisance, any person may abate it, and it is generally held that the remedies by abatement and by in. dictment are in all respects concurrent and co-extensive: Gould on Waters, sec. 128. As to the right of a private person to abate a nuisance without suit, see the note to Gates v. Blincoe, 26 Am. Dec. 443, where this subject is discussed at length.

ERTY.

RIGHT OF NAVIGATOR TO LAND OR DEPOSIT GOODS ON PRIVATE PROP- We have said that the right of navigation in rivers and streams which are in fact navigable includes all such rights as are essential to the exercise of the right. This right, therefore, includes the right of anchorage, and as against other vessels, but not against riparian owners, the right to moor to wharves and to the shore: Gould on Waters, sec. 95; Original Hartlepool Collieries Co. v. Gibb, L. R. 5 Ch. Div. 713; Bainbridge v. Sherlock, 29 Ind. 364; Sherlock v. Bainbridge, 41 Id. 35; Baker v. Lewis, 33 Pa. St. 301; S. C., 75 Am. Dec. 598. And logs and rafts may be moored for a reasonable time to the shore, for the purpose of making up the rafts, or for the breaking up of the rafts, or for the purpose of enabling the owners to sell them: Gerrish v. Brown, 51 Me. 256; Hayward v. Knapp, 23 Minn. 430; Weise v. Smith, 3 Or. 445; S. C., 8 Am. Rep. 621. But the public have, as against riparian owners, and as incident to the right of navigation, no common-law right to use private lands adjoining a river or stream above high-water mark, for the purpose of mooring or of landing their goods: Gould on Waters, sec. 99; Bickel v. Polk, 5 Harr. (Del.) 325; Ensminger v. People, 47 Ill. 384; Chicago v. Laflin, 49 Id. 172, 176; Bainbridge v. Sherlock, 29 Ind. 364; Talbott v. Grace, 30 Id. 389; Sherlock v. Bainbridge, 41

Id. 35; Morgan v. Reading, 3 Smedes & M. 366; Steamboat Magnolia v. Mar· shall, 39 Miss. 109; O'Neill v. Annett, 27 N. J. L. 291; S. C., 72 Am. Dec. 364; Bell v. Gough, 23 N. J. L. 624, 677; Weise v. Smith, 3 Or. 445; S. C., 8 Am. Rep. 621; Chambers v. Furry, 1 Yeates, 167; Bird v. Smith, 8 Watts, 434; S. C., 34 Am. Dec. 483; State v. Randali, 1 Strob. 110; S. C., 47 Am. Dec. 548; Blundell v. Catterall, 5 Barn. & Ald. 268. The right to raft logs down a stream does not involve the right of booming them upon private property for safe-keeping and storage: Lorman v. Benson, 8 Mich. 18; S. C., 77 Am. Dec. 435. But in Morrison v. Thurman, 17 B. Mon. 249, S. C., 66 Am. Dec. 153, it was held that a navigator may moor his vessel to a tree upon a vacant shore, without being deemed guilty of a wrong, though it is done for convenience only, and not to avoid impending danger; and under circumstances of danger incident to navigation, that he may moor his vessel to a private shore, using such caution to avoid injury to others as circumstances will allow, and being responsible only for such damages as may arise to another from his own positive acts, or from want of proper skill or care.

The public have no right at common law to go upon the banks of navigable rivers to tow their vessels: Ball v. Herbert, 3 Term Rep. 253; Treat v. Lord, 42 Me. 552; S. C., 66 Am. Dec. 298; Reimold v. Moore, 2 Brown N. P. 15; Ledyard v. Ten Eyck, 36 Barb. 102. But by statute in Maine the owner of logs is permitted to go upon the bank of a stream to drive his logs, when necessary, upon paying for the damage done by him: Brown v. Chadbourne, 31 Me. 9; S. C., 50 Am. Dec. 641; Hooper v. Hobson, 57 Id. 273.

RIGHTS OF OWNER OF PROPERTY STRANDED ON ANOTHER'S LAND: See note to Forster v. Juniata Bridge Co., 55 Am. Dec. 509, where this subject is discussed.

WHAT CONSTITUTES NUISANCE, AND REMEDY THEREFOR: See Norcross v. Thoms, post, infra, and note; Gerrish v. Brown, ante, p. 569.

THE PRINCIPAL CASE IS CITED to the point that a stream which in its natu. ral state is capable of being used for important purposes of navigation, as for floating logs, must be regarded as a public highway: Thunder Bay Booming Co. v. Speechly, 31 Mich. 342; S. C., 18 Am. Rep. 184.

NORCROSS V. THOмS.

[51 MAINE, 503.]

NUISANCE IS Distinguishable from Trespass, SINCE IT CONSISTS IN US OF ONE'S OWN PROPERTY in such a manner as to cause injury to the property or other right or interest of another.

LAWFUL AS WELL AS UNLAWFUL BUSINESS MAY BE CARRIED ON so as to prove a nuisance. It is the injury, annoyance, inconvenience, or discomfort thus occasioned that the law regards, and not the particular business from which these result.

PARTY INJURED BY NUISANCE MAY RECOVER COMPENSATION IN CIVIL SUIT upon proof of special and peculiar damage to himself, though the nuisance be public, rendering the guilty party liable to indictment. BUSINESS OF BLACKSMITH MUST BE CARRIED ON SO AS NOT TO INJURE OTHERS, and it is a nuisance where it is carried on in a shop twelve feet distant from a hotel, and causes, by reason of the cinders, dust, and ashes arising from the shop, serious annoyance and inconvenience to the guests of the hotel, and consequent loss to the hotel-owner.

CASE for damages from an alleged nuisance. The defendant, it was proved, moved a blacksmith's shop to within twelve feet of the plaintiff's hotel, and by reason of the black cinders, dust, and ashes which arose from the shop, the plaintiff was injured in his property, and incurred inconvenience and loss. The defendant maintained that a blacksmith's shop is not in itself a nuisance, and that he was not liable as for maintaining a nuisance unless he carried on the shop in an extraordinary or unusual manner. The judge instructed that if the defendant erected, continued, or used said shop for the exercise of his trade, and by reason thereof the plaintiff was injured in his property, comfort, or convenience, the jury would be authorized to infer that the defendant was guilty of nuisance and liable in damages. Verdict was for the plaintiff, and the defendant excepted.

F. A. Wilson, for the defendant.
Briggs, for the plaintiff.

By Court, DICKERSON, J. This is an action on the case for an injury sustained on account of an alleged nuisance. This form of action, as its name imports, is the appropriate remedy for injuries arising in particular cases which do not fall within the ancient and technical formulas, and which would otherwise be without remedy.

It is not practicable to give a precise, technical definition of what constitutes a nuisance at common law. Blackstone, in his Commentaries, volume 3, page 215, defines a nuisance to signify "anything that worketh hurt, inconvenience, or damage." "All the acts," says Bishop, 3 Crim. Law, sec. 848, "put forth by man, which tend directly to create evil consequence to the community at large, may be deemed nuisances, where they are of such magnitude as to require the interposition of courts." The only accurate method of ascertaining the meaning of the term "nuisance" at common law is to examine decided cases, adjudged to be or not to be nuisances.

A nuisance is distinguishable from trespass, since it consists in a use of one's own property in such a manner as to cause injury to the property, or other right, or interest of another. It is the injury, annoyance, inconvenience, or discomfort thus occasioned that the law regards, and not the particular business, trade, or occupation from which these result. A lawful as well as unlawful business may be carried on so as to prove a nuisance. The law, in this respect, looks with an impartial