Page:The American Cyclopædia (1879) Volume XIV.djvu/361

 345 that side of the stream to which they are near- est ; if they are formed in the middle of the stream on both sides of the dividing line or centre, they belong to the proprietors on both sides in proportion to the extent which may lie on their respective sides of the line. Lands and islands formed out of the sea, or in naviga- ble, i. e., tide rivers, belong to the sovereign or state, and not to the proprietors of the adjoin- ing shore. By the common law the seashore, being that part between high and low water mark where the tide ebbs and flows, belonged to the sovereign or state, and was common to all the public, the possession of the adjoining proprietors extending only to high- water mark ; but in this respect the common law has been changed in Massachusetts and Maine, as to owners on bays and arms of the sea, by the colony ordinance of 1641 and the usage arising therefrom, and the proprietorship goes to low- water mark, subject to the public easement, and not exceeding 100 rods below high- water mark. And now, in other states which lie on tide waters, the owner of land has some right to use it as far as low water, for the purpose of putting a wharf or similar building there. The common law definition of a navigable river, being one where the tide ebbs and flows, has been considered and judicially adjudged to be inapplicable to the great rivers of Penn- sylvania, Alabama, and other states. These rivers are declared to be navigable, and the boundaries of adjacent lands extend not to the middle of the stream, but only to low-water mark. But this question, where not particu- larly regulated in the several states by statute or judicial decisions, is still somewhat unset- tled ; and even where navigable waters are de- clared to be common highways, and as such for ever free to the public, it does not appear that the common law principle, that he who owns the land on both sides owns the entire river, and he who owns the land on one side only owns to the middle of the river, in both cases subject only to the easement of naviga- tion, is thereby abolished. While every ripa- rian proprietor has an equal right to the free use of the water which passes his land, as it is accustomed to flow, without any diminution or alteration as to quantity or quality, he has no exclusive property in the water itself, but a simple usufruct while it passes along ; and he cannot appropriate it to his exclusive use, or divert it from its natural channel, without the consent of the adjoining proprietors, who have an equal right to its use with himself. If he does divert it on his own premises, he must re- turn it to its ordinary course when it leaves his estate. He may use it to irrigate his lands or to water his cattle, or he may use the whole force of it in any reasonable manner he chooses, so long as such use does not interfere with the rights of his neighbors. But he cannot use it to the prejudice of any adjoining proprietor, unless he has a prior right to divert it, or a right by grant or by prescription (which sup- poses a grant) to some exclusive enjoyment of it. Whether, without such right, his use is reasonable, depends upon the circumstances of each case. The natural title which riparian owners thus have to the reasonable use of the waters may be restricted, altered, or enlarged by such grants or prescriptions ; otherwise streams of running water could never be effec- tually applied either to agricultural or manu- facturing purposes. Twenty years' exclusive occupation and use of water in any particular manner raises the presumption of a grant for that purpose from the adjoining proprietors ; and owners whose land lies above or below must take the stream subject to such adverse right. But nothing short of an express grant, or the use and enjoyment of the water so di- verted or obstructed, or materially changed in its course and character, for a sufficient length of time to raise the legal prescription of a grant, will justify the owner as against any other owner to whom such alterations may prove in- jurious. By the common law the proprietor of land lying upon an unnavigable river pos- sesses the exclusive right to fish therein, as far as the middle of the stream ; and if he owns both sides he has exclusive right, for fishing purposes, to the whole river, as far as his land extends, subject only to the rights of the pub- lic in the same as a highway for navigation. But this right is qualified by the same general rule which regulates his other riparian rights ; it must be so used as not to injure or interfere with the rights and privileges of others. There- fore he cannot erect dams, weirs, or other ob- structions for the purpose of preventing the ascent or passage of fish. Such impediments were regarded by the common law as a nui- sance, and in Massachusetts the party offending in this manner is subject to a penalty provided by statute. The common law right of fishing may be controlled or modified by the munici- pal law of the land, and in many of the states it is regulated by statute provisions. On nav- igable rivers and tide waters, however, the adjoining proprietors do not possess this ex- clusive right of fishing opposite to their own lands ; it is a public and common privilege in which every one is equally entitled to share. But this public right of fishing in the water does not extend to' permitting a stranger to pass over the land of another in order to reach the water. Neither are persons claiming and enjoying this common right entitled to draw the seine, or to fish, or build fishing huts, or dry their nets, upon the land of the adjoining owner, or upon islands which are private prop- erty ; this privilege belongs exclusively to the owner of the soil. The civil law declared that the right of fishing was common in rivers, as well as in the sea, and gave the use of the ad- joining banks for this purpose to the public. This principle is acknowledged where the civil law prevails, and has been adopted by some of the states in regard to their large navigable rivers, but it is unknown to the common law.