level does not make that a river which would otherwise be a lake. So the fact that a river swells out into broad, pond-like sheets, with a current, does not make that a lake which would otherwise be a river. But where it is admitted that the water is not a lake, nor a pond, the only criterion by which to determine whether it is a river, is the existence of a current, and not the appellations which may have been given to the water.1

(b) When Lake Is Running Stream.-Yet a lake fed by streams and having a natural channel, and whose waters find exit by percolation in a perceptible current through a bed of gravel, has been held a running stream, which may not be obstructed so as to set back upon the lands of another.2

3. Navigable Lakes and Waters-(a) In General.-Navigable waters, as has been explained in a pending case in North Carolina, are natural highways recognized as such by government and the people. Hence it seems to be accepted as a part of the common law of this country, arising out of public necessity, convenience and common consent, that the public have the right to use rivers, lakes, sounds and parts of them, though not strictly public waters, if they be navigable in fact, for the purposes of a highway and navigation, employed in travel, trade or commerce. Such waters are treated as publici juris in so far as they may be properly used for such purposes in their natural state. The public right, however, arises only in case of their navigability. Whether they are navigable or not depends upon their capacity for substantial use as indicated. They can be so used only for the free passage of vessels, as the public have only the right of navigation.4

1. State v. Gilmanton, 14 N. H. 467, 477. "Where a water course," says BARTLETT, J., "originates and is supplied from a natural lake, the current in the latter may be hardly perceptible, yet it may be doubted if any one could justify the entire withholding of its waters from the stream it should feed. Indeed, it is by no means certain that the entire absence of current in a lake would prevent the application of the general principles that protect the rights of landowners on running streams; for perhaps it will be found that owners of lands upon such lakes have similar qualified rights to the enjoyment of these waters in their natural condition, and to the reasonable use of them, and may claim that the water shall not be unreasonably raised, lowered, or polluted to their injury." Bassett v. Company, 43 N. H. 569, 578.

Bridge Act.-An act providing for the building and repairing of bridges over streams dividing adjoining towns, confers no authority as to bridges over

bays, lakes, or other bodies of water not streams," or as to causeways or bridges over marshes between two towns. Matter of Freeholders, 68 N. Y. 376, 379As to bridge over a slough, see Joliet etc. R. Co. v. Healy, 94 Ill. 416, 418, 419.

2. Hebron Gravel Road Co. v. Harvey, 90 Ind. 192; s. c., 46 Am. Rep. 199. The opinion repeats, as to what constitutes a natural water course, the language of Taylor v. Ficks, 64 Ind. 167; s. c., 31 Am. Rep. 114, as quoted, with approval in the subsequent case of Schlichter v. Phillipy, 67 Ind 201.

3. State v. Narrows Island Club, 100 N. Car. 477; s. c., 6 Am. St. Rep. 618, 619.

4. State v. Narrows Island Club, 100 N. Car. 477; s. c., 6 Am. St. Rep. 618.

The title to the bed of the river, lake or sound in such cases, and all special privileges and advantages incident thereto, vest and remain in the owner thereof, subject only to the public easement. He may use the land, and whatever is incident to it, including the water

According to another exposition of the matter, the question whether the title of riparian owners, by the rules of the common law, included the land to the centre of the bed of the adjoining navigable body, or was restricted to the water's edge, has occasioned some diversity of opinion in this country, and has led to conflicting and apparently irreconcilable decisions in the courts.1 In New York, however, the idea has been advanced that a doctrine may be evolved from the authorities which will accord with the great weight of judicial authority in this country, and still preserve such property rights as have been acquired and have grown up under the authority of diverse decisions. This doctrine is that all rights of property to the soil under the waters of a small inland navigable lake were acquired by its riparian owners, and belong to them, while such rights only over its waters belong to the State as pertain to sovereignty alone.2

(b) Lake Held Not Navigable.-An inland lake, five miles long and three-fourths of a mile wide, which has no current and no main inlet, is not, in New York, navigable water in any just or legal sense of the term. For it is not a highway, and is too small to be of any practical use in navigation, except as a connecting link of some chain of internal improvement.3

4. Outlet Streams Flowing from Lakes (a) When Not Mere Surface Water.-Where the water flowing out of a lake and seeking an outlet by a stream is water which has accumulated from spring rains and melting snows, and which has flowed for several miles between regular banks of a well defined water course, and its accumulation in the lake is constant, and an outlet for it is absolutely necessary, or the whole region thereabout must be inunover it, in such lawful way as he will, if Comm'rs v. People, 5 Wend. (N. Y.) in so doing he does not impede or inter- 446. fere materially with navigation. The limited right of the public is paramount and shall not be abridged. State v. Narrows Island Club, 100 N. Car. 477; s. c., 6 Am. St. Rep. 618; citing Broadnax v. Baker, 94 N. Car. 678; s. c., 55 Am. Rep. 633, and Hodges v. Williams, 95 N. Car. 331; s. c., 59 Am. Rep 242; and distinguishing State v. Glen, 7 Jones (N. Car.) L. 321.

1. Smith v. City of Rochester, 92 N. Y. 463; s. C., 44 Am. Rep. 393, 396. 2. Smith v. City of Rochester, 92 N. Y. 463; 8. C., 44 Am. Rep. 393. 396.

It is observed, however, in this case, that it may be stated in passing that the common law of the riparian owner's title to fresh or non-navigable rivers, as laid down in the note to ex parte Jennings, 6 Cow. (N. Y.) 537, is generally conceded to be "inapplicable to the vast fresh water lakes or inland seas of this country or the streams forming the boundary line of States." See Canal

Among other rights which pertain to sovereignty is that of using, regulating and controlling for special purposes the waters of all navigable lakes or streams, whether fresh or salt, and without regard to the ownership of the soil beneath the water. This right is known as the jus publici, and is deemed to be inalienable. Smith v. City of Rochester, 92 N. Y. 463; s. c., 44 Am. Rep. 393, just cited.

3. Ledyard v. Ten Eyc, 36 Barb. (N. Y.) 102, 124.

In New Jersey, the title is in the proprietors and not in the State, to the soil of a natural inland fresh water pond or lake three miles long and one mile in width, and of sufficient depth to float large vessels, which has never been navigated by vessels larger than fishing craft thirty feet long, propelled by oars or sails, and which has no navigable outlet. Cobb v. Davenport, 32 N. J. L. 369, 377.

dated, the flowage must be deemed a water course, and not mere surface water. Therefore, the erection or maintenance of a dyke or dam which causes such waters to flow back upon neighboring lands and entirely destroy their use for agriculture or pasturage, is unlawful, and will be perpetually enjoined.1

(b) Riparian Rights in Irrigating Ditch.-Riparian rights in ditches leading from lakes have been considered in a case where the owner of lands upon which there was a lagoon or lake, from which there was no natural outlet, cut a ditch for irrigating purposes. Thereafter he conveyed part of the land upon which the lagoon was situated to the defendants. He conveyed the remainder of land to the plaintiffs. The irrigating ditch ran between the different tracts conveyed. The plaintiffs, by parol permission of their grantor, the defendants, had used the waste waters of the ditch. It was held that as the water had never flowed in any natural channel, the plaintiffs had never acquired any riparian rights in the flow of water in the ditch.2

(c) Drainage of Lake Interfering with Flow of Water.-A lake can be drained only by its natural outlet, for the owners along a creek forming such outlet having a legal right to the natural flow of the waters of the lake through it, and any artificial drain would deprive them of this flow.3

(d) Ownership of Bed of Lake or Pond.-The owner of the land at the outlet of a lake or pond is the owner of the water power furnished by that stream, as an incident to the land, but he is not in consequence the owner of the bed of such lake or pond, or of the land on its borders merely because he has flowed it for twenty years.+

1. West v. Taylor, 16 Oreg. 165, 170, et seq., quoting or citing the following cases as to what constitutes surface water, etc.: Macomber v. Godfrey, 108 Mass. 219; s. c., 11 Am Rep. 349; Broadbent v. Ramsbotham, 11 Ex. 602; Buffum v. Harris, 5 R. I. 243; Ashley v. Walcott, II Cush. (Mass.) 192; Gannon v. Hardagon, 10 Allen (Mass.) 106; s. c., 87 Am. Dec. 625; Franklin v. Fisk, 13 Allen (Mass.) 211; s. c., 90 Am. Dec. 194; Gillett v. Johnson, 30 Conn. 180; Palmer v. Waddell, 22 Kan. 352; Shields 7. Arndt, 3 Green Ch. (N. J.) 234.

2. Green v. Carotto, 72 Cal. 267, 269. Diversion by Government Without Compensation. To divert a stream, which is the outlet of a smali lake, from its natural channel into an artificial one, so as to reach another larger lake, for the purpose of affording improved navigation and benefiting commerce may be a work of public concernment and advantage. But if thereby a riparian owner is wholly or injuriously deprived of the use of its waters, which he is employing

advantageously as an incident to his land it is taking the private property of such owner in and to the use of that water for public use. And such taking, unless compensation is made, is against both the principles of the common law and the provisions of the constitution of the United States. Avery v. Fox, 1 Abb. (U. S.) 246; s. c., 28 Myers' Fed. Dec. 691, 694.

3. Mohr v. Gault, 10 Wis. 513; s. c., 78 Am. Dec. 687.

4. Cocheco Mfg. Co. v. Strafford, 51 N. H. 455, 461.

"So far as respects the bed of the natural pond," said BELLOWs, C. J., “the plaintiffs acquired the right to have it flowed by becoming the owners of the land at the outlet, and no one could interpose any objection to such use. This right. then, did not depend upon prescription, but was an incident of the land. aught we can see, it stands upon the same ground as in the case of a running stream, and in neither case can we perceive any foundation for holding that,

For

II. TITLE TO LAKES AND PONDS-1. Rights of Crown Under British Decisions. In England, a different doctrine prevails as to the title of the sovereign authority to land covered by lakes from that maintained in this country. It was at first regarded as not necessary to determine whether "the soil of lakes, like that of fresh water rivers, prima facie belongs to the owners of the land, or of the manors on either side, ad medium filum aquæ, or whether it belongs prima facie to the king, in right of his prerogative."1

It has since, however, been laid down in the House of Lords that the crown has no de jure right to the soil or fisheries of an inland nontidal lake. Accordingly, that a general grant by the crown of a several fishery in a nontidal lake is not without more sufficient to establish the title thereto; and that it can have no effect where there is no evidence of acts of possession by the grantee at the particular part of the lake which is the place in dispute.2

2. Great Inland Lakes in the United States. In this country, our great navigable lakes are regarded as public property, and not susceptible of private ownership more than the sea.3

Lands under the water of navigable lakes are placed on the same footing with lands under the waters of navigable rivers, and they require a specific grant to enable the riparian proprietor to

by the erection of a dam and the use of the natural flow of a stream, the absolute title to its bed would be acquired for any length of use. As to most of our large bodies of water . such dams have been erected at their outlets and used for many years, but without supposing that a title in fee was thus acquired to the entire beds of those lakes; and we are well satisfied that no such position could be maintained." In this case it was ruled that the owner of the land at the outlet of the lake was not liable to be taxed for either the bed of the lake or the land flowed on its borders.

Mill Ponds. It has further been held that the existence of an easement on land, such as the privilege of ponding water on it for the use of a mill, is not such adverse possession of it by the holder of the servient tenement as to prevent the owner of the dominant tenement from conveying the right of soil. Everett v. Dockery, 7 Jones (N. Car.) 390, 391, 392. As to presumption of grant of easement where lands have been overflowed by a mill pond for forty years without any claim for damages by the owner, see Wilson v. Wilson, 4 Dev. (N. Car.) L. 154, 155. Concerning right of action for land covered with water by means of a dam across a stream, see

Perrine v. Bergen, 13 N. J. L. (2 Green. 355.

1. WIGHTMAN, J., in Marshall v. Ulleswater Steam Navigation Co. (1863), 3 Best & S. 732, at p. 742; citing Com. Dig. Praerogative (D. 50), and Hale De Jure Maris, ch. 1.

2. Bristow v. Connican, L. R., 3 App. Cas. 641. The opinions in this case enter very fully into the subject.

In Ireland, in a case decided in 1868, the subject under consideration was not expressly passed upon, though the court considered that three important questions were involved in the determination of the case: First, whether the soil passes by a deed granting a several fishery; secondly, as to the distinction, if any, between libera piscaria and separalis piscaria; and thirdly, whether the law as to riparian ownership in streams applies to the case of great inland lakes. Bloomfield v. Johnston, Ir. R., 8 Com. L. 68, 76. No formal conclusion on the third question is reached, but the opinion refers to the conflicting decisions in America and to the prior English rulings.

3. 3 Kent's Com. 429, note (a), quoted in State v. Company, 49 N. H. 240, 250, which cites West Roxbury v. Stoddard, 7 Allen (Mass.) 158, and State v. Gilmanton, 9 N. H. 461.

go beyond the shore, and the grant of the bed of such lakes can only be made to the owner of the adjoining land.1

(a) New York Doctrine.-The New York doctrine is that the proprietor of land on the bank of a river, where the tide flows, owns to high water mark; but above tide water he takes usque ad filum aquæ, except, perhaps, when the stream is a navigable boundary. But this rule is there regarded as not applicable to our large North American lakes.2 Accordingly, it is held that the proprietors of land lying upon a large body of fresh water like Lake Champlain, unless it is otherwise expressed in the grants, own to low water mark, subject to a servitude to the public, for the purposes of navigation, up to high water mark.3

(b) Vermont Doctrine.-In Vermont, it is held that owners of land bordering on the waters of Lake Champlain have no title to the soil beyond low water mark, nor right appurtenant, but only a statutory right to build wharves and storehouses into the lake, in front of their land. Therefore, if land be made by a stranger by filling in earth in front of their land, from low water mark into the lake, and wharves and docks be built thereon, they cannot maintain ejectment therefor.1

1. 3 Kent's Com. 429, note (a).

After explaining the rule, it was said A different rule from that of the com- that it certainly seems preposterous to mon law "must probably prevail," says make the application of this rule to our CHANCELLOR WALWORTH, 66 as to our lakes, etc. "Two islands in this lake [relarge navigable lakes, which are mere ferring to Lake Champlain] . . . which, inland seas, although there is neither I believe, nearly constitute a whole ebb nor reflux of the tide; and also as to county in Vermont, by this rule should those lakes and streams which form the belong to the proprietors of the main natural boundaries between us and a land. The English have no foreign nation." Canal Appraisers v. large inland bodies of stationary fresh People, 17 Wend. (N. Y.) 571, 597. water, or even of salt, unaffected by the "Lakes or standing waters," it is fur- tides. Nor is there anything similar to ther remarked, "although susceptible our great lakes in those parts of the of increase or decrease, were by the old world where the civil law has precivil law always considered as limited vailed. in point of property, and therefore the heritors on their borders were not entitled to the rights of increment. L. 12 de acquir. dom. Biret's Applic. 258." So the same chancellor had said that the common law principle "does not appear to be sufficiently broad to embrace our large fresh water lakes, or inland seas, which are wholly unprovided for by the common law of England. As to these there is neither flow of the tide nor thread of the stream, and our own local law appears to have assigned the shores down to the ordinary low water mark to the riparian owners, and the beds of the lakes with the islands therein to the public." Canal Commrs. v. People, 5 Wend. (N. Y.) 423, 446, 447.

2. Champlain etc. R. N. Co. v. Valentine, 19 Barb. (N. Y.) 484, 489-491.

We may reason from analogy; but, of course, we cannot expect to find decisions made by the English tribunals upon questions that could not, there, very well arise. Although the point, perhaps, has not been distinctly decided in this State, some of our judges and jurists have not hesitated to declare an opinion that the law in relation to the rights of riparian owners on rivers, above the flux and reflux of the tide, does not prevail in respect to our large lakes. (3 Kent. 427 429 n.; Canal v. People, 5 Wend. 447; Commrs. v. People, 17 Id. 597, 621; Kingman v. Sparrow, 12 Barb. 206.

3. Champlain etc. R. Co. v. Valentine, 19 Barb. (N. Y.) 484, 489.

4. Austin v. Rutland Railroad Co., 45 Vt. 215, 242-246, discussing not only the general law but also the legislation of the State.