407. Title to the soil of rivers or fresh-water lakes.— The soil of the bed of a non-navigable river belongs prima facie to the owners of the land or of the manors on either side, ad medium filum aquæ. (9) Neither, however, it entitled to use it, so as to interfere with the natural flow of the stream; hence an encroachment by one landowner on his side of the stream is actionable at the suit of the other, although no special damage be proved. (r) So an injunction will be granted to restrain a riparian proprietor on a tidal river from erecting a jetty, and so encroaching on the alveus of a navigable stream. (s)1 It (9) See Crossley v. Lightowler, L. R., App. Ca. 47. 3 Eq. Ca. 279. (s) Att. Gen. v. Earl of Lonsdale, L. R., 7 Eq. Ca. 377. () Bickett v. Morris, L. R., 1 Scotch state can grant a several fishery. In all other streams the right is exclusively vested in the owners of the banks, who also own the alveus ad filium aquæ. King v. Lay, 5 Day (Conn.) 72; Chalker v. Dickinson, I Conn. 381; Budd v. Sip, 1 Green (N. J.) 348; Collins v. Benbury, 3 Ired. (N. C.) 277; Peables v. Hannaford, 6 Shep. (Me.) 106; The Nymph, Warr. (U. S.) 343. As to the rights of the owners of the alveus, see Adams v. Pease, 2 Conn. 481; Beckman v. Kreamer, 43 Ill. 447. But, even in streams in the alveus of which the state has no interest, it is held that the state may regulate the taking of fish. Lunt v. Hunter, 16 Me. 9: Fuller v. Spear, 10 Id. 417; Randolph v. Braintree, 4 Mass. 315; Burnham v. Webster 5 Mass. 266; Waters v. Lilly, 4 Pick. (Mass.) 145; State v. Hackett, 29 Ired. 302; People v. Reed, 47 Barb. (N. Y.) 235. The exercise of this right is for the preservation of fish and the benefit of the public. While the owner of the alveus has an exclusive right to fish in the stream to the extent of his ownership, yet he does not own the fish. The property in them is vested in no one, as they, like animals ferræ naturæ, are the special property only of him who reduces them to possession, but the state, in the exercise of its power for the common good of its citizens, may make such regulations as it chooses in reference to this, as well as all other matters that do not actually deprive one of his property without compensation. It is a power incident to the state, unless taken away by constitutional provisions, and no person has a right to complain of its exercise. It is a power which has existed and been exercised immemorially, and if it had no other foundation, the usage itself would be sufficient to uphold it. Indeed, in Vinton v. Walsh, & Pick. (Mass.) 87, the court expressly held that by virtue of such immemorial usage, it might exercise this power. But the right stånds upon a broader and more solid foundation. The state has a quasi property in fish in whatever streams they exist (except private ponds erected for the purpose), as it has in animals ferræ naturæ, and may protect this property in any manner it chooses which does not amount to an absolute taking of the property of a private person. Again, it may regulate the matter by virtue of its power to establish police regulations for the state. The power has been questioned, but the courts have always upheld it. Com. v. M'Cundy, 5 Mass. 124; People v. Reid, 47 Barb. (N. Y.) 235: State v. Hackett, 29 Ind. 302. And no person can prescribe for a several fishery against the state. Cottrell v. Myrick, 12 Me. 222. In this country, the rule is well established that where a person conveys lauds, does not appear to be clearly established whether the soil of lakes, like that of fresh-water rivers, belongs in the same way to the respective owners of the land on either side, or whether it belongs primâ facie to the king in right of his preroga. tive. (t)' If a private individual is the owner of the soil forming the bed of a navigable lake, he would be entitled to sue any one who erected a pier running into the lake, or to knock down the pier, but as long as it remains, the owners of lands abutting on the lake have a right to use it for the purpose of embarking or disembarking. (u) 408. Of the title to waste uninclosed land adjoining the sea () As to grants of a several fishery with livery of seizin, conveying a freehold interest in the soil covered with the water. Marshall v. Ulleswater, 32 Law J., Q. B. 139. (2) Marshall v. Ulleswater Steam Nav. Co., L. R., 7 Q. B. 166. 'bounded on a fresh-water stream, not navigable, the conveyance extends to the centre of the stream, unless the conveyance is restricted to the banks by express terms, and the restriction must be in express terms, and not left to be implied, for all presumptions are in favor of the grantee's taking the bed of the stream. Nichols v. M'g Co.. 34 N. H. 345; Arnold v. Elmore, 16 Wis. 507; Demeyer v. Legg, 18 Barb. (N. Y.) 14; Hayes v. Bowman, I Rand. (Va.) 417; King v. King, 7 Mass. 496; Morrison v. Keene, 3 Me. 474; Noble v. Cunningham, 1 McMull. (S. C.) 289. And this is the rule whether the stream be a natural or artificial one, or a ditch. Warner v. Southworth, 6 Conn. 471. Upon fresh-water streams which are navigable in fact, and are avenues for commercial relations between the states, or between different points in the same state, the rule is not uniform. In some of the states, the riparian owner is held to own the alveus ad usum filium aquæ, subject to the public easement of navigation. Avery v. Fox, 1 Abb. (N. S.) 246; Commrs. v. The People, 5 Wend. (N. Y.) 355; Commrs. v. Hemphill, 26 Wend. (N. Y.) 404; Morgan v. King, 35 N. Y. 454; Gray v. Burdick, 20 Pick. (Mass.) 186; Scott v. Wilson, 3 N. H. 321; Laney v. Clifford, 54 Me. 491; Weise v. Smith, 3 Oregon, 445; Middleton v. Page, 8 Conn. 221; Brown v. Kennedy, 5 H. & J. (Md.) 195; Hays v. Bowman, 1 Rand. (Va.) 417; Cates v. Wadiington, 1 McCord (S. C.) 580; Magnolia v. Marshall, 39 Miss. 109; Moriner v. Schultz, 13 Wis. 492; Schurmier v. R. R. Co., 10 Minn. 82: Lorman v. Benson, 8 Mich. 18; Hubbard v. Bell, 54 Ill. 110; Warren v. Chamber, 25 Ark. 120; Walker v. B'd of Public Works, 3 Ham. (Ohio) 495. While in others it is held that in all such streams the title to the bed of the stream is in the state. Tomlin v. Dubuque, 33 Iowa, 106; Stuart v. Clark, 2 Swan. (Tenn.) 9; Collins v. Benbury, 3 Ired. (N. C.) 277; Ellis v. Carey, 30 Ala. 725 ; Bridge Co. v. Kirk, 46 Penn St. 112. And the title of riparian owners, is extended to low-water mark. East Haven v. Hemingway, 7 Conn. 186; Bridge Co. v. Kirk, 46 Penn, ante; Blanchard v. Porter, 11 Ohio, 138; Elder v. Burns, 6 Humph. (Tenn.) 358; Ellis v. Carey, ante. Lands bounded on large fresh-water lakes or ponds, are restricted to low-water mark. Canal Comms. v. People, 5 Wend (N. Y). 423; Hathorn v. Stinson, 10 Me. 238; Bradley v. Rice, 13 Id. 193; Champn. R. R. Co. v. Valentine, 19 Barb. (N. Y.) 484; Waterman v. Johnson, 13 Pick. (Mass.) 261; Fletcher v. Phelps, 28 Vt. 257. shore. All uninclosed waste land abutting on the sea-shore, and situate above the high-water mark of ordinary spring-tides, belong prima facie to the owner of the adjoining property, although it is covered with beach and sea-weed, and overflowed by the waves at extraordinary spring-tides. (21) 409. Of the right to the soil of turnpike-roads and highways. The soil of a turnpike-road is not vested in the trustees of the road. The trustees have only the control of the highways, the ordinary rule being that the landowners on either side of the road are entitled to the soil of the road, usque ad medium filum viæ; and if a landowner owns the soils on both sides of the road, he is entitled to the soil of the whole road. (x) This is a presumption of law founded on the assumption that in making a road for public convenience, the owners of the land on each side of the road have contributed a portion of their land toward the formation of the road. (y) Where the owner of two parcels of land on either side of a highway conveys them to a purchaser, the soil of the road passes by presumption of law, although the conveyance is silent as to the existence of the road, and although the particular measurement of each parcel of land is given, which would exclude the road; but this presumption may be rebutted by circumstances showing that the grantor did not intend to transfer to the grantee his right of ownership in the soil of the highway. Words in an instrument of grant, as elsewhere, are to be taken in the sense which the common usage of mankind has applied to them in reference to the subject-matter of the grant. And if lands abutting upon a highway are described in the grant as bounded by the highway, the right to the soil, ad medium filum viæ will be impliedly included in the grant, unless the surrounding circumstances rebut the presumption. (z) And where the land intended to be conveyed is described by measurement and color, on a plan annexed to, and forming part of, the conveyance, the soil of the highway usque ad medium (v) Lowe v. Govett, 3 B. & Ad. 86). Hale, de jure Maris, c. 4, p. 12. Harg. Law Tracts. As to land gained from the sea, Att.-Gen. v. Rees, 4 De G. & J. 55. (x) Davison v. Gill, 1 East, 69. Marquis of Salisbury v. Gt. Northern Railway Co., 28 Law J., C. P. 53; 5 C. B., N. S. 208. (y) The same presumption applies to two coterminous parishes, where the boundary between them is a highway. Reg. v. Strand Board of Works, 33 Law J., M. C. 33. (z) Lord v. Commissioners of Sidney. &c. 12 Moore, P. C. C. 498 filum passes by the conveyance, unless it is expressly ex cluded. (a)' No legal presumption arises as so the ownership of soil in a road, where the road is defined for the first time under a newly created authority, such as a board of commissioners for inclosing lands, acting under the powers of an act of Parliament. (b) Nor does the same presumption apply to houses in a street abutting on a highway. (bb) 410. Accommodation ways.-The right to the soil of accommodation-ways and private roads, depends upon the history of the premises, and the evidence of acts of ownership over the soil of the road. If nothing else appears than the existence of a private way running between the lands of two adjoining proprietors, the jury may presume that the soil belongs half to the one and half to the other. But that presumption may be rebutted by evidence showing acts of ownership on the part of one only of such adjoining proprietors, (c) or by proof of a reservation of the soil of the road by a grantor under whom the landowners on either side of the road claim title. (d) 411. Of the title to waste lands adjoining public highways.Waste land extending along a public highway is presumed, in the first instance, to belong to the owner of the adjoining land, and not to the lord of the manor; (e) but this presumption prevails only so long as proof to the contrary is wanting. (f) In remote and ancient times, when roads were frequently I Where lands are bounded upon a public street, prima facie the grant extends to the centre thereof; Buckman v. Buckman, 12 Me. 463; Chatham v. Brainard, II Conn. 60; Cortetyau v. Van Brundt, 2 Johns. (N. Y.) 257; Dunham v. Williams, 37 N. Y. 251; but where the terms of the deed are such as plainly exclude the road, . the boundaries control, and the grant will not extend by implication beyond them; Tyler v. Hammond, 11 Pick. (Mass.) 193; Jackson v. Hathaway, 15 Johns. (N. Y.) 447; and in Massachusetts, it is held that bounding "on the road" excludes the road; Alden v. Murdock, 13 Mass. 259; or by a fence on a road; Pettingill v. Porter, 3 Allen (Mass.) 349; or when the road belongs to the state; Dunham v. Williams, ante. made through uninclosed lands, and when the same labor and expense were not employed upon roads, and they were not formed with that exactness which the exigencies of society nov require, it was part of the law that the public, where the road was out of repair, might pass along the land by the side the road. This right on the part of the public was attended with this consequence-that although the parishioners were bound to the repair of the road, yet, if an owner excluded the public from using the adjoining land, he cast upon himself the onus of repairing the road. If the same person was the owner of the land on both sides, and inclosed both sides, he was bound to repair the whole of the road; if he inclosed on one side only, the other being left open, he was bound to repair to the middle of the road; and where there was an ancient enclosure on one side, and the owner of lands inclosed on the other, he was bound to repair the whole. Hence it followed as a natural consequence, that when a person inclosed his land from the road, he did not make his fence close to the road, but left an open space at the side of the road, to be used by the public when occasion required. This appears to be the most natural and satsifactory mode of explaining the frequency of waste left at the sides of roads: the object was to leave a sufficiency of land for passage by the side of the road when it was out of repair. (g) But the ordinary presumption, that a narrow strip of land lying between the highway and the adjoining close belongs to the owner of the close, is either done away with or considerably narrowed, if the narrow strip is contiguous to, or communicates with, open commons or larger portions of land; for the evidence of ownership which applies to the large portions applies also to the narrow strip which communicates with them. () 412. Of the right to the soil of towing-paths and the banks of rivers and canals.-Navigation companies authorized by statute to set out towing-paths, first giving satisfaction to the owners and proprietors of lands made use of for the purpose, do not, by forming a towing-path and giving satisfaction to the owner of the land over which the path is formed, acquire more than a right of way for towing, in the nature of a servitude or (g) Steel v. Prickett, 2 Stark. 469. Headlam v. Hedley, Holt, N. P. C. 462. Doe v. Kemp, 2 B. N C. 102. |