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neither the board of public works, nor an acting commissioner of that board, can approve of the structure of a bridge over it. Ibid.

§ 329. A railroad company has no right to construct a bridge across the Mississippi where congress has acted in the matter and has prescribed the limitations and conditions upon which the bridge may be constructed. United States v. Milwaukee & St. Paul R. Co.,* 5 Biss., 420

$ 330. The right to cross a navigable river is equal to the right to sail up and down it, and in case of the erection of bridges each must be preserved. Silliman v. Troy, etc., Bridge Co., 11 Blatch., 274.

§ 331. The right of navigation and of crossing a navigable river are co-existent, equally important, and neither can be permitted to destroy or essentially impair the other. Columbia Insurance Co. v. Peoria Bridge Co.,* 6 McL., 70.

§ 332. Natural falls do not destroy the character of the river above them if it be navigable. Spooner v. McConnell, 1 McL., 337; 3 Am. L. Reg., 29.

§ 333. The common-law doctrine that rivers are only navigable as high as the tide ebbs and flows has no application in this country. Bowman v. Wathen, 2 McL., 376.

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§ 334. Nuisance Rights of private persons.-A private person cannot apply to a court of chancery to prevent or remove a public nuisance which does him no special injury, but he may if the nuisance is immediately injurious to himself, although it may also affect the public. A private person owning a tannery, flour-mill, saw-mill, stores and warehouses, a wharf and water-lots, and stock in a plank road leading from the town where they are situated, which is upon a river navigable for steamboats, schooners and other vessels, and from which trade is carried on with other ports, in which he participates, may enjoin a railroad company from obstructing the navigation of the bay into which that river empties, when such obstruction will materially injure the trade of that town. Works v. The Junction Railroad,* 5 McL., 425.

§ 335. The party injured has a right of action in case of obstruction of navigation, not the government as a political power. United States v. The Railroad Bridge Co., 6 McL., 517. § 336. A private person, in order to maintain a suit for preventive relief against a public nuisance such as an obstruction in a navigable stream must show that he has sustained, or is in imminent danger of suffering, some special injury. City of Georgetown v. The Alexandria Canal Co., 12 Pet., 91.

§ 337. All navigable streams should be left open, and no one has a right to obstruct the path of vessels along their channels. Where a raft has been driven by the vis major into a channel of the river so as to obstruct it, if it be allowed to remain there an unreasonable length of time, and no exertion be made by the party in charge to extricate it, such conduct would afford ample grounds for the master of a steamboat to take the necessary steps for its removal as a nuisance; but if every effort be made to remove the raft from the channel, no apprehension of a pecuniary loss on the part of the master from a reasonable delay would afford any excuse for the violent and summary destruction of the raft by the latter. Lallande v. The Steamboat C. D., Jr., Newb., 501.

§ 338. Wherever a public nuisance, as an obstruction of a navigable river, is productive of a specific injury to an individual, he may make it the foundation of an action at law, and if the injury would be irreparable a court of equity will interpose by injunction. Gilman v. Philadelphia, 3 Wall., 713.

§ 339. Injury of vessel. Although a bridge may be an obstruction to navigation, yet if an injury is sustained by a boat by a collision with it in consequence of the negligence of the persons managing the boat, the owners of the bridge are not liable. Columbus Insurance Co. v. Peoria Bridge Co.,* 6 McL., 70.

§ 340. Following the decision of the supreme court of Illinois, it is held that the city of Chicago, under that clause of its charter which provides that it may prevent and remove obstructions from its harbor, etc., was not liable for an injury caused by the collision of a vessel with a sunken rock which the harbor-master had tried to remove, but which was not stirred by his efforts. Goodrich v. City of Chicago,* 4 Biss., 18.

§ 341. A public nuisance, such as an obstruction of a navigable river which is a means of commerce between two or more states, cannot be tolerated on the ground that the community may realize some advantages from its existence. Works v. Junction Railroad,* 5 McL.,

425.

§ 342. Procedure.— An indictment at common law could not be sustained in the federal courts of the United States against a bridge over a navigable stream as a nuisance, as no such procedure has been authorized by congress. But a proceeding in equity on the ground of a private and an irreparable injury may be sustained against it by an individual or a corporation. State of Pennsylvania v. Wheeling, etc., Bridge Co.,* 13 How., 518. See CONSTITUTION AND LAWS, 1203-12.

§ 343. Where the erection of a bridge was enjoined, on the subsequent legalization of the bridge by congress the injunction was dissolved. Baird v. Shore Line R'y Co.,* 6 Blatch., 461.

§ 344. An indictment does not lie in a federal court for the erection of a bridge across navigable waters. United States v. New Bedford Bridge,* 1 Woodb. & M., 401.

§ 345. The courts of the Union having jurisdiction of the parties in a civil suit are competent to administer the common-law remedy for an injury sustained by reason of an unlawful obstruction in a navigable stream without any express legislation by congress giving the remedy and prescribing the mode of enforcement. Jolly v. The Terre Haute Draw-bridge Co.,* 3 Am. L. Reg., 29.

§ 346. Whether a state suing for the prevention of a nuisance in a navigable river of the United States must not aver that it will sustain some special and peculiar injury therefrom, such as would enable a private person to maintain a similar action in another court, quære. South Carolina v. Georgia, 3 Otto, 4.

IV. POWER OF CONGRESS OVER NAVIGABLE WATERS.

§ 347. Navigable waters of United States.- Rivers constitute navigable waters of the United States within the meaning of the acts of congress, in contradistinction from the navigable waters of the states, when they form, in their ordinary condition, by themselves or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water. The Daniel Ball, 10 Wall., 557.

§ 348. A river, to be navigable water of the United States, must be a highway for commerce with other states or foreign countries. If it does not form such a highway by its connection with other waters, and is only navigable between different places within the state, then it is only navigable water of the state, not of the United States. The Montello, 11 Wall., 411.

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§ 349. When a river is navigable.- For the purpose of determining whether a river is navigable water of the United States the mode in which commerce has been carried on is immaterial. If in its natural state it be navigable in fact by steamboats, sailing vessels, Durham boats or vessels of any kind that can float upon the water, it is navigable water. does the navigability of a stream depend upon the difficulties to be overcome, such as those occasioned by falls, rapids and sand-bars, although they may be so great, while they last, as to prevent the use of the best instrumentalities for carrying on commerce. The true test is whether the natural navigation of the river is such that it affords a channel for useful commerce. If this be so the river is navigable in fact although its navigation may be encompassed with difficulties by reason of natural barrier, such as rapids and sand-bars. The Montello, 20 Wall., 430; 7 Ch. Leg. N., 105.

$ 350. The Fox river of Wisconsin, notwithstanding its falls, rapids and sand-bars, has always been used as a highway of commerce between Lake Michigan and the Mississippi river, and for that reason is navigable water of the United States. The Fox river was included in the ordinance of 1787. Ibid.

§ 351. A river may in law be navigable although in its natural state there were obstructions to unbroken navigation. Ibid.

§ 352. Grand river, Michigan, from Grand Rapids must be considered as navigable water of the United States. From this point it is navigable in fact, and by its junction with Lake Michigan it forms a continued highway for commerce, both with other states and with foreign countries, and is thus brought under the direct control of congress in the exercise of its commercial power. The Daniel Ball, 10 Wall., 557.

§ 353. The doctrine of the common law as to the navigability of waters has no application in this country. The ebb and flow of the tide do not here constitute the test. Ibid.

§ 354. Those rivers must be regarded as public navigable rivers in law which are navigable in fact, and they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. Ibid.

§ 355. The intention of congress was clearly manifested by the act of May 18, 1796, to ordain all rivers actually navigable as common-law rivers, whether or not the tide ebbs and flows, and under this act the Detroit river is free for all purposes of navigation and trade. The Brig Empire State, Newb., 541.

§ 356. State rights. Each state has a right to the soil under navigable water within her territorial limits, subservient only to the surrender she has made to the general government,

in the constitution, of the right to regulate commerce with foreign nations and among the several states. Griffing v. Gibb, McAl., 212.

§ 357. Navigable rivers wholly within a state are not outside of state jurisdiction so long as congress does not interfere; and an abridgment of the rights of those who have been accustomed to use them, unless it comes in conflict with the constitution or a law of the United States, is an affair between the government of the state and its citizeus, of which the federal courts can take no cognizance. Transportation Co. v. Chicago, 9 Otto, 635.

§ 358. Each state owns the beds of all tide-waters within its jurisdiction, unless they have been granted away, and the tide-waters themselves, subject to the paramount right of navigation, the regulation of which in respect to foreign and interstate commerce has been granted to the United States. McCready v. Virginia, 4 Otto, 391.

§ 359. And each state may appropriate its tide-waters and their beds to be used by its people as a common for taking and cultivating fish, so far as it may be done without obstructing navigation. Ibid.

§ 360. In the improvement of navigation congress may appropriately devolve upon the discretion of executive officers the regulation of details; and an appropriation of a certain sum of money to be expended under the direction of the secretary of war for the improvement of the harbor of Savannah gives that officer the power to select the manner of improvement, and to divert the water from one channel of the river to the other if in his judgment such is a proper mode of improvement. South Carolina v. Georgia, 3 Otto, 4.

§ 361. Congress having undertaken the improvement of the Mississippi a boom company will be enjoined from floating logs down the river to the injury of the improvements. United States v. Rum River, etc., Boom Co.,* 1 McC., 397; S. C., id., 601.

§ 362. The improvement for the preservation of the Falls of St. Anthony was within the constitutional authority of congress. United States v. Rum River, etc., Boom Co.,* 1 McC.,

601.

§ 363. The authority of congress in the making of improvements in navigable waters is, when congress sees fit to exercise it, not only paramount but exclusive. So where congress has undertaken the improvement of a harbor, improvements undertaken by a state within the state will be enjoined if they are likely to injure the work undertaken by congress. United States v. City of Duluth,* 1 Dill., 469. See CONSTITUTION AND LAWS, §§ 1213–14.

§ 364. An act providing for the construction of an apron of planked timber over the crest of the Falls of St. Anthony to protect the rock and prevent the washing away of the underlying soft sandstone is within the constitutional jurisdiction of congress, whose duty it is to assume the general control, protection and improvement of the navigable rivers of the United States. United States v. Mississippi & Rum River Boom Co.,* 1 McC., 601; 3 Fed. R., 548; 10 Rep., 516.

§365. Although, ordinarily, if a right common to all is abused, or so used as to cause damage, the injured party must seek redress by an action at law, yet, where congress has assumed jurisdiction of a river in the interest of commerce, a federal court will furnish relief against any threatened injury to any improvements made under its authority. Thus an apron having been constructed, under direction of congress, over the crest of the Falls of St. Anthony, held, that unless the owners of logs would provide means to prevent their passage over the apron when let loose, or guide them into the sluice-way prepared for them, an injunction would issue. Ibid.

§ 366. The use of the Mississippi above the Falls of St. Anthony as a highway for the purpose of running logs to market is a right common to all, subject to be regulated and controlled by the federal government, or, in the absence of any such regulation, by the state within which the river lies. This common right, however, gives no immunity to individuals for injuries committed while using it. Ibid.

§ 367. Landings. The cities and towns on the Mississippi river, when authorized by the legislature, have the right to pass rules and regulations with respect to their landings, and it is the duty of the courts to respect and uphold them. Steamboat Southern Bell, Newb., 461. § 368. When a highway upon the water and another upon the land adjoin, the right of passage from one to the other is free to all. The Brig Empire State, Newb., 541.

V. MISCELLANEOUS.

§ 369. Source of a river.- A grant of land lying between two rivers includes the whole country between their sources and their mouths; and it seems that a straight line drawn from the source of one river to the source of the other will form a portion of the boundary of such a grant. Where one or both of the rivers pursue such a course that a straight line

from the source of one to the source of the other may cross one or both of them, such a case may form an exception to the rule. Reynolds v. M'Arthur, 2 Pet., 417.

§ 370. The lower court refused to grant the instruction that, according to the intent and meaning of the deed of cession from Virginia to the United States of the land lying between the rivers Scioto and Little Miami, such land is bounded by a line extending from the source or point of land farthest removed from the mouths of these rivers, from which the rain descending on the earth runs down into their respective channels, along the tops of the ridges, dividing the waters of the Scioto from the waters of the Great Miami. Held, that the instruction was properly refused. Ibid.

§ 371. Held, also, that an instruction to the effect that the sources of the two rivers must be at that point in their respective channels at which, from the union of several streams, sufficient water flows at an ordinary stage on which to navigate small vessels laden, was properly refused. Ibid.

§ 372. Held, also, that the instruction was properly refused, that the sources of the two rivers must be considered as commencing at that point in their respective channels from which the water flows at all seasons of the year. Ibid.

§ 373. An instruction to the effect that the sources of the two rivers must be fixed at that point in their respective channels farthest removed from their respective mouths at which water is found at all seasons of the year, held properly refused. Ibid.

§ 374. The court also properly refused to instruct the jury that the source of each river was at that point farthest removed from its mouth from which the rain runs into its channel. Ibid.

§ 375. The soil below low-water mark in the Chesapeake bay, within the boundaries of Maryland, belongs to the state, subject to the lawful grants of that soil by the state or the sovereign power which governed its territory before the declaration of independence. Smith v. State of Maryland, 18 How., 71.

§ 376. But this soil is held by the state not only subject to, but in some sense in trust for, the enjoyment of certain public rights, among which is the common liberty of taking fish, as well shell fish as floating fish. Ibid.

§ 377. Wherever a river is the boundary between states, it is the main, the permanent, river which constitutes that boundary. Hence, when the state of Virginia made the Ohio river the boundary between itself and Kentucky, held, that she must have intended the great river Ohio, and not a narrow bayou separated from the Kentucky side of the river by a goodly strip of land, and through the whole of which the waters of the river do not pass until they rise ten feet above the low-water mark. Handly v. Anthony, 5 Wheat., 374.

§ 378. Where a river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream; but when, as in the case of Virginia and Kentucky, one state, the former, is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly erected state extends to the river only, and the low-water mark is its boundary. Ibid.

$379. Where a river forms the boundary between two states, any gradual accretion of land, or land formed by the receding of the water, belongs to the state next which it forms. Ibid.

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§ 380. The boundary between Alabama and Georgia depends upon the construction to be given to the line mentioned in the cession by Georgia to the United States, which was a line beginning on the western bank of the Chattahoochee river where the same crosses the boundary line between the United States and Spain, running up the said Chattahoochee river and along the western boundry thereof." In determining the boundary, held, that there is ownership of the soil and jurisdiction in Georgia in the bed of the river Chattahoochee, and that the bed of the river is that portion of its soil which is alternately covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn. State of Alabama v. State of Georgia, 23 How., 505.

§ 381. Grant of exclusive right of navigation.- A grant by the legislature of Maine to a private individual of the exclusive privilege of navigating the upper part of the Penobscot river, situated wholly within the state, separated from tide-water by impassable falls and other obstacles, and not forming any part of a continuous track over which commerce is carried on between two or more states or with a foreign nation, is not in derogation of the power vested in congress to regulate commerce," etc. Veazie v. Moore, 14 How., 568.

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§ 382. Right of city on high seas. A city cannot lay out a "town way" or "public highway" for boats and vessels on the high seas, although one of the streets of the city reaches the sea. Richardson v. The City of Boston, 24 How., 188.

§ 383. Power of congress over Potomac.- The compact between Maryland and Virginia of 1785, securing the free navigation of the Potomac river, could be changed or abrogated at the pleasure of those states. And when those states ceded to the United States territory embracing a portion of such river, congress acquired the power and right to do whatever those states could formerly have done by their joint will with respect to that portion of the river in the granted territory. Mayor of Georgetown v. The Alexandria Canal Co., 12 Pet., 91. § 384. Law of Massachusetts as to flowage. It seems that the laws of Massachusetts respecting flowage do not apply to the case of machinery used by the United States for public purposes, in a place over which jurisdiction has been ceded to the United States, so as to authorize a mill owner to flow back in a way to impair in any degree the use of the machinery. United States v. Ames, 1 Woodb. & M., 76.

§ 385. The taking of sea-weed and sea-manure from a beach is a commonable right in Rhode Island. Knowles v. Nichols, 2 Curt., 571.

§ 386. Fish rights.- Where a charter granting the right to construct a dam provides for compensation to owners of fish rights below the dam, but not to those above it, the latter being injured as well as the former, it does not deprive the state of its right to require the construction of such fish ways. Holyoke Co. v. Lyman, 15 Wall., 500.

§ 387. It is settled law in Massachusetts that the right of fishing in such rivers as the Connecticut and Merrimac, even above the point where they are navigable for boats and rafts, and the right to erect and maintain dams to create water-power for mill purposes, are public rights, and the owners of the same are bound by the reasonable regulations of the state made for their protection, among which is the requirement of the owners of dams that they construct proper and suitable fishways unless expressly provided to the contrary in the grant of the privilege to construct the dam. Ibid.

§ 388. Shores of and soil under navigable waters. The shores of navigable waters and the soils under them were not granted by the constitution to the United States, but were reserved to the states respectively; and the new states have the same rights, sovereignty and jurisdiction over this subject as the original states. Pollard v. Hagan, 3 How., 212; Goodtitle v. Kibbe, 9 How., 471; Doe v. Beebe, 13 How., 25.

§ 389. By the admission of the state of Alabama into the Union that state became invested with the sovereignty and dominion over the shores of navigable rivers between high and low water mark. Consequently after such admission congress could make no grant of land thus situated. Goodtitle v. Kibbe, 9 How., 471.

§ 390. The stipulation contained in the sixth section of the act of congress of March 2, 1819, for the admission of the state of Alabama into the Union, viz., "that all navigable waters within the said state shall forever remain public highways, free to the citizens of said state and of the United States, without any tax, duty, impost or toll therefor imposed by said state," conveys no more power over the navigable waters of Alabama to the government of the United States than it possesses over the navigable waters of other states under the provisions of the constitution, and it leaves as much right in the state of Alabama over them as the original states possess over navigable waters within their respective limits. Pollard v. Hagan, 3 How., 212; Goodtitle v. Kibbe, 9 How., 471; Doe v. Beebe, 13 How., 25.

§ 391. The defendant reclaimed from the water, under authority of the legislature, certain land along the New Jersey shore. Plaintiff claimed the premises under sundry mesne conveyances from the proprietors of East New Jersey, maintaining that, by virtue of the various grants by which they became proprietors of East New Jersey, the fee of the soil under the navigable waters of that part of the state was conveyed to them as private property subject to the public use, and, as that use had ceased in the premises in question, he was entitled to their exclusive possession. The court held, however, that the soil under the public navigablewaters of East New Jersey belonged to the state, and not to the proprietors; and upon that ground gave judgment for the defendant. Den v. Jersey Co., 15 How., 426.

§ 392. When the Revolution took place the people of each state became themselves sovereign, and, in that character, held the absolute right to all their navigable waters and the soils under them for their common use, subject only to the rights since surrendered by the constitution to the general government. Martin v. Waddell, 16 Pet., 367.

WEIGHTS AND MEASURES.

§ 1. The regulation of weights and measures having been given by the constitution to congress it is doubtful whether the enactments of any state on that subject are of any validity

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