Northwestern Union Packet Co. v. Atlee.

authorizing the erection. Its rightfulness depends, therefore, upon the general principles of the law. The respondent claims the right as riparian proprietor, and it follows, of course, that if he has the right, every other like proprietor has the same right.

Notwithstanding the able argument contained in the opinion of his honor in the court below, I have not been able to reach the conclusion that the right claimed for the respondent exists; and although, on a question of this kind, which he has so thoroughly considered, I may well distrust the correctness of my own views, still it is my duty to decide it according to my own judgment. It is not my purpose to enter upon any extended argument against the right which is set up by respondent, but only to indicate briefly the grounds of my opinion.

The paramount right attaching to the Mississippi river is the right to its free and unobstructed navigation. This is a public right. It exists in favor of the whole public, and for all vessels, small as well as large, and for rafts equally with boats. Any erection or obstruction not authorized by competent legislative enactment, which materially interferes with the paramount right of navigation, is unlawful, and comes within the legal notion of a nuisance. The analogy between the river and a highway or street, as respects public rights, is very close. The river is a highway, or waterway, for the use of the public, just the same as a street or highway; and individuals, for their own convenience, have no more right, without legislative authority, to obstruct the one than they have to encumber or obstruct the other. Their rights in both cases are confined to a reasonable use of that which is common to all, and which may not be exclusively appropriated by any.

Telegraph poles, or gas posts, or market houses, in the public streets, are, or may be, convenient and useful, not only to individuals, but to the public; but if put there with

Northwestern Union Packet Co. v. Atlee.

out legislative sanction, they are, in law, nuisances. And so with any unauthorized individual appropriation of any part of a street. Much more clearly would the law pronounce illegal any exclusive appropriation of a portion of the public way by individuals, for their own convenience, by erections or acts which would, or might, endanger the safety of the public.

The same principles apply to the rights of the public in the river. The adjacent owner may make a reasonable use of the river and the banks. He may, doubtless, land his rafts, and fasten them to the bank in front of his property. How long he might keep his logs stationary in the water, we need not inquire, for the injury to the libellant's vessel was not caused by coming in contact with logs thus moored by the riparian proprietor, but by piers of solid masonry, built at a point which the evidence establishes to be within the navigable channel of the river, even at its lowest stage. No individual can, of his own notion, and for his own advantage, abridge or infringe the rights of the public in respect to the navigation of the river. A pier built within the navigable channel, that is, at a point in the river where vessels may go, and where they have the right to go, is an unlawful structure in the eye of the law. Indeed, any permanent structure which interferes with, or which may endanger or obstruct, navigation, is unlawful, and cannot be legalized by any considerations of utility, or otherwise, except by direct legislative authority.

Accordingly, it has been held that the erection and maintenance, without legislative permission, of a dam in the Wisconsin river, at a place where it is navigable in fact, is unlawful, whether it does or does not interfere with the navigation of the river. (Wisconsin Imp. Co. v. Lyons, 30 Wis. p. 61.)

It is suggested that there is an analogy between piers like those erected by respondent and bridges across navigable

Northwestern Union Packet Co. v. Atlee.

streams. But, though bridges across such streams may be of great private convenience and public utility, still legislative sanction is necessary to legalize their existence.

Again, it is argued that the right of the respondent to build and maintain the piers in question rests, or may be rested, upon the same grounds upon which rests the right of the riparian proprietor to erect wharves and landing places for his own and the public use. Structures of the character just named, connected with the shore, when not erected in violation of legislative regulations, when they do not obstruct the paramount right of navigation, and are not nuisances in fact, have the sanction of long usage in this country, and, under the qualifications suggested, may be lawfully crected; but the right, it is said, must be understood as terminating at the point of navigability. (Dutton v. Strong, 1 Black, 23, 32; Yates v. Milwaukee, 10 Wall. 497.)

The reason why wharves and landing places are thus sanctioned is, that they are aids to navigation, and necessary for the reasonable enjoyment of the respective rights of the public and the riparian proprietor. But the right to erect piers in the navigable channel, in order to construct a boom for the protection and detention of logs until the riparian proprietor may manufacture them, rests upon no such usage; nor can such be justly said to be aids to navigation, which, it is to be remembered, is the paramount right not in the least to be infringed, without legislative sanction.

If the piers in question be considered unlawful, the liability of the defendant is clear. The pilot of the libellant's boat had no knowledge of the piers, and there was no light upon them to warn him of their existence. In my judgment, he is not to be held in fault for not knowing that there was an unlawful obstruction in the river, and standing further out in the stream. Undoubtedly, if he had known of the piers, and if they had been lighted so that he

Northwestern Union Packet Co. v. Atlee.

could have seen their location, it would have been his duty, if practicable, to have kept his boat away from them. In my opinion, the fault lies wholly with the respondent. This is clearly so, if the pier on which the boat was injured was not lawfully there. But suppose I am in error in the above view, I still think the fault is with the respondent, because of the failure to have lights upon it. The river was high; it was at a season of the year when usually there were no rafts moored in the stream, and it was not unlikely that boats might run against it. I cannot think the pilot is in fault, under these circumstances, for not having run his boat farther out in the stream. So that, in any view of the case, I consider the respondent liable for all the damages.

It is suggested that these views will occasion alarm to mill owners upon the Mississippi; but I perceive no cause for apprehension. If it should be deemed of sufficient importance, Congress would doubtless concede all necessary rights, and regulate the mode of their enjoyment. This may, perhaps, be also done by the state, in the absence of action by Congress. But, without such legislative action, it is not probable that mill owners will be disturbed in the exercise of their accustomed privileges so long as they are reasonably enjoyed, and do not esentially interfere with or endanger the paramount right of a navigator.

The decree below will be reversed, and a decree entered here for the appellant against the defendant for the $2,147.86 reported by the commissioners.

REVERSED.

NOTE. As to obstructions in navigable rivers: Addison on Torts chap. 4, sec. 1, p. 169, and cases cited.

Since the appeal in the foregoing case was taken, Congress, on the 3d day of March, 1873 (18 Stats. at Large, 606), authorized "the owners of saw mills on the Mississippi river, under the direction of the Secretary of War, to construct piers or cribs in front of their mill property, on the banks of said river, for the protection of their mills and rafts against

Winter v. Iowa, &c. Railway Co.

damage by floods and ice: Provided however, that the piers or cribs so constructed shall not interfere with, or obstruct, the navigation of said river," etc. This enactment implies that piers built in the river, and which interfere with, or obstruct, its navigation, are illegal.

The supreme court of Michigan, at the July term, 1873, decided the following points:

1. Where a brig bound for Chicago broke a boom in passing out of Manistee river, and was proceeded against under chapter 210 of the Compiled Laws of 1871, relating to "proceedings for the collection of demands against water-craft," it was held that while the act cited was meant to give relief where the vessel was at the time navigating the waters of the state, and where no remedy could be had in admiralty, it was not confined to water-craft intended for use only in the waters of this state.

Judge Campbell, dissenting from a majority of the court, held that the act was designed to authorize proceedings analagous to those in admiralty, and to create a lien not enforceable in any other way. (Brig City of Erie v. Canfields.)

2. A boom that extends no farther into the water than the landowner, with due regard to navigation, might extend it, is a structure pertaining to the adjacent land, as much as any wharf or building erected thereon, and a wrongful injury to it is not a marine injury, and the tort cannot, therefore, be redressed in admiralty. Ib.

3. The right of navigation is not so far paramount as to make booming facilities a nuisance wherever they encroach on navigable waters, and in any case the question of nuisance must depend on the particular facts. The necessity and convenience of the floatage of lumber in the Manistee river, in the region of which the manufacture of lumber is the prime industry, must be considered in any rules laid down for the public use of the stream. Ib.

LOUIS C. WINTER v. IOWA, MINNESOTA, & NORTH PACIFIC RAILWAY COMPANY.

1. The provisions of the bankrupt act apply to railway corporations, and if they commit an act of bankruptcy they may be proceeded against under that act.

2. It is not an act of bankruptcy, under section 39 of the bankrupt act, as amended July 14th, 1870 (16 Stats. at Large, 276) for a railway company to suspend and not resume payment of its commercial paper for a period of fourteen days.