of navigation not inconsistent with the constitutional principle that private property shall not be taken for public use without just compensation.69 And remote and consequential damages, such as the diminution of water-power, accruing to land from improvements to the navigation of the waterways of a state authorized by the legislature thereof, do not amount to a "taking" within the meaning of the constitution, and the legislature is empowered to authorize such improvements without reference to such consequential damage to land within the state. But the legislature has no power to cause such damage to the owners of land in other states.70 Hence riparian owners on a navigable stream cannot recover damages for a diversion of the waters by the state, or by a corporation acting by authority of the state, for the improvement of navigation. And in this respect the general government has equal rights and powers, so far as concerns "navigable waters of the United States." Thus for example, the Savannah river being such a stream, the rights of the owner of an adjoining rice field, in the ebb and flow of the tide, are subordinate to the control of the government, for purposes of navigation; and it having determined that the current shall be confined, for the purpose of scouring and deepening the channel, an injury resulting from an elevation of the flow of the tide, which interferes with the drainage of the rice field, is damnum absque injuria.72 At the same time, this right of the state must not be exercised in such a manner as to cause any more damage to the riparian owners than is unavoidable. Thus, in Louisiana,

the levee commissioners are authorized to lay off the levees at a suitable distance from the bank of the Mississippi. Yet they have not an arbitrary discretion. And if they should wantonly and unnecessarily set the levee so far back as to ruin the property of a riparian owner, it is said that he would not be without a remedy.73

§ 227. Public right of floating logs.

Closely analogous to the public right of navigation on streams which are adapted to be so used is the public right of using "floatable" streams for the purpose of driving logs to the mills or to market. Here, as there, the rights of the public and of the riparian proprietor co-exist, and each must be exercised with a due regard to the existence and preservation of the other. On the one hand, it is not the privilege of the riparian owner to make such use of the stream or of its banks or channel as materially to obstruct the public right of floatage. But yet this public right is not paramount, in any such sense that he may not make any proper use of the stream not substantially inconsistent with it. Thus, under a statute which makes it unlawful for any person to obstruct any navigable stream in any manner so as to obstruct the free navigation thereof, it is held that a dam which interferes with the passage of logs is not an unlawful obstruction unless it materially impairs the value of the stream for floating purposes.74 And in

73 Dubose v. Levee Comm'rs, 11 La. Ann. 165.

"Conn Co. v. Little Suamico Lumber Co., 74 Wis. 652, 43 N. W. Rep. 660. In this case the learned court observed: "It is obvious that it not every obstruction placed in a navigable stream which is a nuisance. A distinction may well be made

between those streams which are capable of floating logs and timber only at certain periods, and then for a few days, in times of freshet, and streams which are capable of more extended and constant navigation. It seems to us that in reason and common justice a distinction should be made in view of

Maine we have a ruling to the effect that a mill-owner on a floatable stream is under no legal obligation to provide

a public way for the passage of logs over his dam, better than would be afforded by the natural condition of the river unobstructed by his mills. The right of the public

is to the utilization of the natural flow of the river or its equivalent. And the mill-owner is not obliged to furnish any public passage for logs over his dam or through his mills, at a time when the river at such place, in its natural condition, does not contain water enough to be floatable if unobstructed by mills, although the stream is generally of a floatable character.75

On the other hand, the public easement on floatable streams must not be used to the substantial and permanent detriment of the riparian owners. Hence where the facts show that a stream is not navigable for floating logs without doing irreparable injury to the estate through which it flows, and defendant claims a right to use such stream, for that purpose, not only for himself, but for the public, and threatens to commit and claims the right to repeat the numerous trespasses which the exercise of such right necessarily involves, it is held that the plaintiff is entitled to an injunction.76 But it is said that a corporation, authorized by its charter to maintain dams and make all other improvements required to facilitate the driving of logs on a navigable river, may be bound to prevent the forming of jams which increase the danger of injury to the shores, if it is practicable to do so by reasonable means; but when a jam is reasonably necessary and proper to facilitate the

tity, or a retardation or acceleration of the natural current, indispensable for the general and valuable use of the water. perfectly consistent with the existence of the common right. The diminution, retardation, or acceleration not positively and sensibly injurious by diminishLAW W. R.-31

ing the value of the common right is an implied element in the right of using the stream at all.' Story, J., in Tyler v. Wilkinson, 4 Mason, 397."

7 Pearson v. Rolfe, 76 Me. 380. 76 Haines v. Hall, 17 Oreg. 165, 20 Pac. Rep. 831.

(481)

driving of logs, the corporation is not bound to remove it, and is not liable for damages resulting therefrom to a riparian owner. Nor is the corporation bound to erect booms or other structures along the shore to prevent it from washing away, or to station men along the bank to prevent logs from striking it.77

§ 228. Public use of banks of stream.

While the waters of a navigable stream remain subject to the public easement of passage, it is now the generally accepted rule of American and English law that the banks of the river, when held in private ownership, are not subject to any servitude, for the benefit of the public, for purposes incidental to navigation. The history and develop ment of this doctrine have been well described by the learned Chancellor Kent, in a passage from which we quote as follows: "The right of way, as to a foot or tow path along the banks of navigable rivers, has been a subject of great discussion, and of much regulation in the laws of different nations. In the civil law, the banks of public rivers and the seashore were held to be public. Riparum usus publicus est; littorum quoque usus est publicus jure gentium.78 The law of nations was here used for natural right, and not international law in the modern sense of it; and it is stated in the Institutes of Justinian that all persons have the same liberty to bring their vessels to land, and to fasten ropes to the banks of the river, as they have to navigate the river itself. These liberal doctrines of the Roman law have been introduced into the jurispru dence of those nations of Europe which have followed the civil and made it essentially their municipal law. Thus in Spain, the seashore is common to the public, and any one

"Field v. Apple River Co., 67 Wis. 569, 31 N. W. Rep. 17.

78

'Citing Inst. 2, 1, 4, 5. And see Washb. Easem. 215.