Knox v. Chaloner

Appleton, J. The jury have found the stream, upon which the defendant’s dam was erected, to have been a public river, capable, in its natural state, of being useful for floating boats, logs, &c., for purposes of trade and agriculture. It was decided, in Brown v. Chadbourne, 31 Maine, 9, that a stream, such as the one across which the jury have found the defendant’s dam to have been erected, though it be private property and not strictly navigable, is subject to the public use as a passage way. The Supreme Court of New Brunswick, in Rowe v. Titus, 1 Allen, 326, held, that all rivers above the flow of the tide, which may be used for the transportation of property, as for floating rafts and driving timber and logs, and not merely such as will bear boats for the accommodation of travelers, are highways, and subject to the public use. In Boissonnault v. Oliv, Stuart, (Low. Can.,) 565, the same rule of law seems to have prevailed in Lower Canada. “ The Riviere du Sud appears,” says Reed, C. J., in that case, “ capable of floating only single logs, and not rafts or batteaux, from the frequent interruption of the navigation from the rocks, shallows and rapids, and therefore is not to be considered a navigable river; but, allowing it to bo of the description of seigneuriale et handle, the use of it, even in that case, must be free and open to the public; for, according to Freeminville, vol. 4, c. 4 p. 434, the King preserves his right over all such rivers as may be used for the floating of timber, inasmuch as he is considered to be the protector of commerce and the public interest.” It follows, that the right of erecting mills and mill dams and of flowing land, conferred by R. S., c. 126, must be deemed as in subjection to the paramount right of passage of the pub156 lie in all cases where the streams in their natural state were capable of floating boats or logs. All hindrances or obstructions to navigation, without direct authority from the Legislature, are public nuisances. Williams v. Wilcox, 8 Ad. & Ell., 314. When the Legislature give an individual the right of erecting and maintaining a dam upon navigable waters, if the dam is so constructed as to impede the navigation beyond what the Act authorizes, this renders the erection pro tanto a nuisance. The same principle must apply, where the river is not navigable in the strict sense in which the word is used in the common law. A dam which impedes or obstructs the right of the public, in floating boats or logs in a stream in which they can be floated in its natural state, must, for the same reasons, be held pro tanto a nuisance. Important rights, as against individuals, may be acquired and lost by adverse enjoyment for a period of more than twenty years. But this principle does not apply as to obstructions in a public navigable river. “ In such case, if the impediment offered to navigation should have existed for a season far beyond twenty years, no private right can demand its continuance, for a nuisance can never be legitimated.” Woolwych on Waters, 270. “It is very well settled,” says Cowan, J., in Renwick v. Morris, 3 Hill, 621, “that lapse of time will not bar a prosecution for a public nuisance, (1 Rus. on Crimes, Amer. ed. of 1836, Folkes v. Chad, 3 Doug. 340, 343,) and I am aware of no case denying that the remedy by abatement is in all respects concurrent with that by indictment. (Coales v. New York, 7 Cow. 558, 600; Mills v. Hall, 9 Wend. 315.)” The same case came before the Court of Errors in 7 Hill, 575, when the Chancellor remarked, “the length of time the public nuisance had continued, did not legalize it, for every continuation of the obstruction was in itself an offence.” The same principle applies to rivers which may be used for the floating of logs, rafts, &c., for the same reasons. The public right of passage is not affected nor intended to be af [157] fected by the statute in relation to mills. The right of passage still remains to the public for which the mill owner must make suitable provision at his peril, or pay, upon suit, the damages arising from his omission. Exceptions overruled. Tenney, C. J., and Rice and Goodenow, J. J., concurred.