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by similar rules. When actually constructed, under authority of the State legislature, such a levee becomes the conventional or artificial bank of the river, defining the line of highwater mark in those States in which riparian ownership is held limited by that line, and entitling the riparian proprietors to accretions subsequently added thereto.1

§ 139. The legislature alone has the right to determine whether and to what extent the public convenience requires an interruption of the public right of navigation. In the absence of direct authority, the subordinate authorities of a State, such as towns, surveyors of highways, or county commissioners, are not invested with power to obstruct navi- · gable waters, whether fresh or salt, by constructing highways below high-water mark, or authorizing dams or bridges across them. In Massachusetts and other States, it is held that a general statutory authority to lay out roads and highways does not confer power to construct them across navigable waters or below the high-water mark, upon the ground that, navigable waters being of common right public highways, a general authority to lay out a new highway does not warrant the obstruction of a highway which is already in use by the public. In Connecticut such authority is held to authorize

1 Musser v. Hershey, 42 Iowa, 356, 363; New Orleans v. United States, 10 Peters, 711. See Barkley v. Levee Commissioners, 93 U. S. 258; The Police Jury v. Britton, 15 Wall. 566; Alcorn v. Hamer, 38 Miss. 652; Williams v. Cammack, 27 Miss. 209; Daily v. Swope, 47 Miss. 367; Vasser v. George, Ibid. 713; Smith v. Atlantic Railroad Co., 25 Ohio St. 91; Wright v. Thomas, 26 Ibid. 346.

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Breed, 4 Pick. 460; Kean v. Stetson, 5 Pick. 492; Wellington, Petitioner, 16 Pick. 87; Charlestown v. Middlesex Commissioners, 3 Met. 202; Henshaw v. Hunting, 1 Gray, 203; Attorney General v. Cambridge, 16 Gray, 247; Boston v. Richardson, 105 Mass. 365; Commonwealth v. Gloucester, 110 Mass. 491; Dunbar v. Vinal, 2 Dane Abr. 695; State v. Anthoine, 40 Maine, 435; State v. Wilson, 42 Maine, 9; Attorney General v. Stevens, Sax. (N. J.) 370; Tucker v. Burlington Co., Ibid. 282; Allen v. Monmouth, 2 Beas. 68.

4 Ibid.; Commonwealth v. Coombs, 2 Mass. 489; Arundel v. McCulloch, 10 Mass. 70; Wales v. Stetson, 2 Mass. 143; Commonwealth v. Charlestown, 1 Pick. 180; Springfield e. Connecti

by implication the construction of highways below high-water mark,1 or bridges with draws across navigable streams.2 In Charlestown v. Middlesex Commissioners,3 in Massachusetts, the legislature authorized a bridge to be built over a navigable stream, "either solid or on piles, leaving sufficient passage for the water," as certain commissioners might deem necessary. Under the direction of these commissioners the bridge was made solid for two-thirds of its length, and the other third, being on piles over the channel and deeper parts of the stream, afforded passage for small vessels without masts when loaded or empty. It was held that the stream was still navigable, and that the county commissioners were not authorized to locate a highway over it. In Marblehead v. Essex Commissioners, the county commissioners were held to have no jurisdiction to lay a highway along a beach forming the side of a harbor, which was not covered by the ordinary tides but by spring tides only, it appearing that the probable effect would be to lessen the usefulness of the harbor for the purpose of navigation, and to interfere with public measures for its protection and improvement. A highway may be located, without special authority from the legislature, over flats between the original high and lowwater mark which have been lawfully reclaimed and filled up; and upon an indictment for creating a nuisance in a part of a town-way laid out by the side of navigable water

cut River Railroad Co., 4 Cush. 63; Commonwealth v. Alger, 7 Cush. 53; Commonwealth v. Roxbury, 9 Gray, 451, 493; Commissioners v. Holyoke Water Power Co., 104 Mass. 446, 449; Marblehead v. County Commissioners, 5 Gray, 453; Boston & Maine Railroad Co. v. Boston & Lowell Railroad Co., 124 Mass. 368, 371; United States v. New Bedford Bridge, 1 Wood. & M. 407; Simmons v. Mumford, 2 R. I. 172, 185.

1 Groton v. Hurlburt, 22 Conn. 183; Weathersfield v. Humphrey, 20 Conn. 218; Clark v. Saybrook, 21 Conn. 313; Brown v. Preston, 38 Conn. 210;

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and above high-water mark, it is not a defence that another part of the way is below high-water mark.1

§ 140. The right to build out wharves or piers into public waters, as incident to the ownership of the adjoining land, is a riparian right, and, as such, will be considered in a subsequent chapter.2 All such structures, as well as bridges, dams, and booms, which are not authorized by the legislature, or which are not erected in accordance with the authority conferred, are public nuisances so far as they interfere with the passage of vessels, or limit such passage to a portion of the navigable channel. But it is competent for the legislature to authorize their erection even beyond the point of navigability, and the reclamation of land from the water, for the encouragement of navigation and commerce, although

1 Commonwealth v. Weiher, 3 Met. Hart v. Albany, 9 Wend. 571; 445.

2 Post, c. 5.

3 Commonwealth v. New Bedford Bridge, 2 Gray, 339; Commonwealth r. Nashua Railroad, 2 Gray, 54; Commonwealth v. Gloucester, 110 Mass. 491.

4 Williams v. Wilcox, 8 Ad. & El. 314; Dimes . Petley, 15 Q. B. 276; Attorney General . Terry, L. R. 9 Ch. 423; Attorney General v. Lonsdale, L. R. 7 Eq. 377; Atlee r. Packet Co., 21 Wall. 389; 2 Dill. 479; State v. Freeport, 43 Maine, 198; Knox v. Chaloner, 42 Maine, 150; State 2. Sturtevant, 21 Maine, 9; State Godfrey, 24 Maine, 232; People v. St. Louis, 5 Gilman, 351; Hogg r. Zanesville Manuf. Co., Wright (Ohio) 139; Clark v. Lake, 1 Scam. 229; Porter v. Allen, 8 Ind. 1; Olson r. Merrill, 42 Wis. 203; Attorney General v. Eau Claire, 37 Wis. 400; Walker . Shepardson, 2 Wis. 384; 4 Wis. 486; Barnes v. Racine, 4 Wis. 454; Yates v. Judd, 18 Wis. 118; In re Eldred, 46 Wis. 530; Newark Plank Road Co. v. Elmer, 1 Stock. 754, 790; Commonwealth v. Church, 1 Penn. St. 105;

3 Paige, 213; People v. Vanderbilt, 26 N. Y. 287; 28 N. Y. 396; 38 Barb. 282; Moore v. Commissioners, 32 How. Pr. 184; Attorney General v. Stevens, Sax. (N. J.) 370; Tucker v. Burlington Co., Ibid. 282; Allen v. Monmouth Co., 2 Beas. 68; Atkinson r. Philadelphia Railroad Co., 14 Haz. Pa. Reg. 10; Dimmett v. Eskridge, 6 Munf. 308; State v. Dibble, 4 Jones (N. C.) 107; Dana v. Jackson Street Wharf Co., 31 Cal. 118; Rhodes r. Otis, 33 Ala. 578; South Carolina Railroad Co. v. Moore, 28 Ga. 398; 24 Ga. 418; Gold v. Carter, 9 Humph. 369; Commonwealth v. Knowlton, 2 Mass. 530; Borden v. Vincent, 24 Pick. 301; Franklin Wharf Co. v. Portland, 67 Maine, 46; Plankroad Co. v. Elmer, 9 N. J. Eq. 754; People v. Gutchess, 48 Barb. 656; Selman v. Wolfe, 27 Texas, 68; Sherlock Bainbridge, 41 Ind. 35; Morrison v. Thurman, 17 B. Mon. 249; 14 Id. 371; Macon Railroad Co. v. Pate, 50 Ga. 156; State v. Merrit, 35 Conn. 314; Wisconsin River Improvement Co. v. Lyons, 30 Wis. 61; Enos v. Hamilton, 24 Wis. 658; 27 Wis. 256.

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the effect may be to confer privileges which are wholly private and exclusive in their nature.1

§ 141. Hindrances to navigation, and the necessity for legislative sanction to legalize them, may also arise by the exaction of charges and tolls from those who navigate the sea or public rivers. It is a principle of the common law that no man can take a settled and constant toll, even on his own private land, for a common passage without the king's license.2 Nor is a grant from the Crown sufficient for this purpose, unless some benefit is shown to the community at large which forms a just consideration.3 "If," says Hale, C. J., "any man will prescribe for a toll upon the sea, he must allege a good consideration; because by Magna Charta and other statutes every one has a right to go and come upon the sea without impediment." The ownership of the soil of an arm of the sea, which is not a port, does not support a claim for tolls, even on the ground of immemorial usage, from those who, in the usual course of navigation,

1 Ante, § 122; Phipp's Appeal, 28 Md. 380; Mayor r. State, 4 Ga. 26; Martin v. O'Brien, 34 Miss. 21; Yadkin Navigation Co. v. Benton, 2 Hawks (N. C.) 10; Cottrill . Myrick, 12 Maine, 222; Hannibal v. Winchell, 54 Mo. 172; Frisbie v. McClernin, 38 Cal. 568; Templeton v. Coburn, 48 Cal. 563; Eldridge v. Cowell, 4 Cal. 41; Rush v. Jackson, 24 Cal. 308; Stevens v. Walker, 15 La. Ann. 577; Pontchartrain Railroad Co. v. Orleans Navigation Co., 15 La. Ann. 404; Delaware Canal Co. v. Lawrence, 2 Hun, 163; Hoeft v. Seaman, 38 N. Y. Sup. Ct. 62; Jeffersonville v. Louisville Ferry Co., 27 Ind. 100; Bingham v. Doane, 9 Ohio, 165; Snyder v. Rockport, 6 Ind. 237. Under a charter by which the construction of a railroad is authorized "to the place of shipping lumber" on a navigable river, the road may be extended into the water to a convenient point for shipment. Peavey v. C. Railroad Co., 30 Maine, 498.

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2 Hale, De Jure Maris, c. 3; Hargrave's Law Tracts, 10, 46, 73, 78.

3 Haspurt v. Wills, 1 Mod. 47; 1 Sid. 454; 1 Vent. 71; 2 Keb. 624, 665; Warren v. Prideaux, Ibid. 104; Vinkersterne v. Ebden, 1 Salk. 248; 1 Ld. Raym. 384; Juxon v. Thornhill, Cro. Car. 132; Hill v. Smith, 4 Taunt. 520; Falmouth v. George, 5 Bing. 286; Brett v. Beales, 10 B. & C. 508; Gann v. Whitstable Free Fishers, 11 H. L. Cas. 192; Heddy v. Wheelhouse, Cro. Eliz. 558; Nottingham v. Lambert, Willes, 111; Exeter v. Warren, 5 Q. B. 773; Kingston Docks . La Marche, 8 B. & C. 42; Jenkins v. Harvey, 1 C. M. & R. 877; 1 Gale, 23. See Woolrych on Waters, 299, 303; Gunning on Tolls, passim; Coulson & Forbes on Waters, c. 9.

4 Warren v. Prideaux, 1 Mod. 105; Woolrych on Waters, 237; Matson v. Scobell, 4 Burr. 2258; Juxon v. Thornhill, Cro. Car. 132.

exercise there the common rights of passage and anchorage.1 The making of a port is, however, a consideration for toll;2 so is the keeping of a capstan and rope necessary to assist vessels; the maintenance of lights, beacons, or buoys; the cleansing of a river; the repairing of a port, or the liability to repair the same, in case repairs are not needed. And the right to collect such a charge, within the limits of a port, may be acquired by prescription.8 In Foreman v. Whitstable Free Fishers, the respondents' claim to anchorage dues was maintained upon evidence of their ownership of the soil of the anchorage, of the maintenance of buoys and beacons, and

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2 Ibid.; Vinkersterne v. Ebden, 1 Ld. Raym. 384; 1 Salk. 248; Yarmouth. Eaton, 3 Burr. 1402; Hale, De Jure Maris, c. 3; Hargrave's Law Tracts, 51; Exeter v. Warren, 5 Q. B. 773; Foreman v. Free Fishers, L. R. 4 H. L. 281. See London v. Hunt, 2 Lev. 37; Wilkes v. Kirby, 2 Lutw. 1519; Woolrych on Waters, 300; Topsell v. Ferrers, Hob. 175; London v. Hunt, 3 Lev. 37.

3 Falmouth v. George, 5 Bing. 286; Foreman. Whitstable Free Fishers, L. R. 4 H. L. 285.

4 Ibid.; Foreman 27. Whitstable Free Fishers, L. R. 2 C. P. 688; L. R. 3 C. P. 586; L. R. 4 H. L. 266; Trinity House v. Sorsbie, 3 T. R. 768, n. (a); Matson v. Scobell, 4 Burr. 2258; Poole v. Johnson, 2 W. Bl. 764; Woolrych on Waters, 304; Smithett . Blythe, 1 B. & Ad. 509; Trinity House . Clark, 4 M. & S. 288; Hamilton v. Stow, 5 B. & A. 649; Rex v. Jones, 8 East, 451; Trinity House v. Staples, 2 Chitty, 689; Vallego v. Wheeler, Cowper, 143; Rex v. Rebowe, Ibid. 583; Reg. v. Durham, 2 El. & El. 230;

Rex v. Tynemouth, 12 East, 46; Rex v. Coke, 5 B. & C. 797.

5 Ibid.; Haspurt v. Wills, 1 Mod. 47; King v. London, 4 T. R. 21.

6 Casher v. Holmes, 2 B. & Ad. 592; Jones v. Phillips, 7 Ex. 85; Wilson v. Robertson, 4 El. & BL 923; Ribble Navigation Co. v. Hargreaves, 17 C. B. 385; Harvey v. Lyme Regis, L. R. 4 Ex. 260.

7 Vinkersterne v. Ebden, 1 Salk. 248; 1 Ld. Raym. 384; 5 Mod. 359; Yarmouth v. Eaton, 3 Burr. 1402; Mersey Docks v. Gibbs, L. R. 1 H. L. 93; Foreman v. Whitstable Free Fishers, L. R. 4 H. L. 266; L. R. 3 C. P. 586; L. R. 2 C. P. 688.

8 Woolrych on Waters, 238, 305; Exeter v. Warren, 5 Q. B. 773; London v. Hunt, 3 Lev. 37; Exeter v. Trimlet, 2 Wils. 95; Wilkes ». Kirby, 2 Lutw. 1519; Yarmouth v. Eaton, 3 Burr. 1402; Sargent v. Reed, 2 Stra. 1228; 1 Wils. 91; Colton v. Smith, 1 Cowper, 47; Falmouth v. George, 5 Bing. 286; Pelham v. Pickersgill, 1 T. R. 660; Richards v. Bennett, 1 B. & C. 223; Nottingham v. Lambert, Willes, 111; Foreman . Free Fishers, L. R. 4 H. L. 281; Whitstable Free Fishers e. Foreman, L. R. 2 C. P. 683; Jenkins v. Harvey, 1 Cr. M. & R. 877. 9 L. R. 4 H. L. 266; L. R. 3 C. P. 578; L. R. 2 C. P. 688. See Aiton v. Stephen, 1 App. Cas. 456; Durham v Bishopwearmouth, 2 El. & El. 230.

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