business may require, though navigation be inconvenienced thereby, provided it be not wholly obstructed. At common law, however, a navigable river is a public highway subject to public use, and the right of passage over it extends to all parts of the channel, and any obstruction of the channel is a public nuisance: Williams v. Wilcox, 8 Ad. & E. 314; 35 Eng. C. L. 396-400; Veazie 593 v. Dwinel, 50 Me. 488; Sherlock v. Bainbridge, 41 Ind. 35, 13 Am. Rep. 302; Atlee v. Packet Co., 21 Wall. 389; Morgan v. Reading, 3 Smedes & M. 366-406; Commissioners v. Withers, 29 Miss. 21, 37, 64 Am. Dec. 126. Section 81 of the state constitution embodies this principle of the common law as follows: "The legislature shall never authorize the permanent obstruction of any of the navigable waters of this state, but may provide for the removal of such obstructions as now exist, whenever the public welfare demands. This section shall not prevent the construction, under proper authority, of drawbridges for railroads, or other roads, nor the construction of booms and chutes' for logs in such manner as not to prevent the safe passage of vessels, or logs, under regulations to be provided by law."

The plain interpretation of this section of the constitution is that booms for logs which prevent the speedy passage of rafts and logs down the stream must have legislative warrant for their existence before they can be constructed. "All navigable waters are for the use of all the citizens, and there cannot lawfully be any exclusive private appropriation of any portion of them": Cooley's Constitutional Limitations, 5th ed.,

728.

We are of the opinion that the boom of the defendants in the Pascagoula river is a public nuisance, and that the particular right of the complainants gives them a right to the remedy sought by them: Bigelow v. Hartford Bridge Co., 14 Conn. 565, 36 Am. Dec. 502.

Reversed.

NAVIGABLE STREAMS ARE PUBLIC HIGHWAYS by common right: Farmers' etc. Co. v. Albermarle etc. R. R. Co., 117 N. C. 579, 53 Am. St. Rep. 606. The right of navigation in a public navigable stream is a right in every part of the space between the banks: See the monographic note to Davis v. Winslow, 81 Am. Dec. 582. Obstructions to floatable streams are nuisances: Commissioners v. Catawba Lumber Co., 116 N. C. 731, 47 Am. St. Rep. 829. And if a public nuisance, consisting of the obstruction of a navigable river, works a private injury, the injured party may have it restrained by injunction: See the monographie note to Davis v. Winslow, 81 Am. Dec. 587.

WATERS-RIGHT TO FLOAT LOGS.-An individual upon whom the privilege has been conferred by statute has a right to use a navigable stream as a highway for floating logs: Coyne v. Mississippi etc. Boom Co., 72 Minn. 533, 71 Am. St. Rep. 508. And, while the public right of floatage exists in streams, no easement beyond the natural one can be obtained without authority: Koopman v. Blodgett, 70 Mich. 610, 14 Am. St. Rep. 527.

McCARLIE v. ATKINSON.

[77 Mississippi, 594.]

LIBEL WHERE AND WHEN PUBLISHED-LETTER SENT BY MAIL.-A libel contained in a letter written and mailed in one state to an addressee in another state is not published until such letter is received and read.

LIBEL, CONCEALMENT OF CAUSE OF ACTION-STATUTE OF LIMITATIONS.-The sending of libelous matter by mail to another state where the letter is opened and read is not a fraudulent concealment of the contents of the letter or its publication, or of the cause of action for the libel so as to take the case out of the operation of the statute of limitations.

J. B. Holden, P. Z. Jones, and J. H. Price, for the appellant.

McWillie & Thompson, for the appellee.

598 TERRAL, J. McCarlie sued Atkinson in the circuit court of Pike county in the sum of eighty-four thousand dollars damages for a libel in saying of him, in a letter to W. C. Hurt Tobacco Company, of Danville, Virginia, "that he [McCarlie] was not safe for a credit of one hundred and twenty-five dollars, and that he had never paid his debts"; to a plea of the statute of limitations of one year, the plaintiff replied that defendant had fraudulently concealed said cause of action until within one year before suit brought. A demurrer to said replication being sustained, the plaintiff appeals.

The libel in this case was not complete until the letter containing the matter complained of was received at Danville, Virginia, by the W. C. Hurt Tobacco Company, and was there opened and read by some member of that company. It is impossible to predicate a concealment of the publication 599 of the contents of the letter of any act of the defendant in Mississippi.

The sending of the letter to Danville through the mail was a condition without which its contents could not have been published there, but such sending of the letter by mail could not

constitute a fraudulent concealment of the contents of the letter or of the publication of such contents at Danville, Virginia. We see no ground for the contention of the appellant; the cases cited by him are not pertinent to the facts of this

case.

It is said that fraud does not affect the statute of limitation in this respect: Wilson v. Ivy, 32 Miss. 233. And the sending of libelous matter by mail to another state, where the letter is opened and read, though the communication of the contents of the letter to the addressee in the foreign state may constitute a cause of action, yet there is nothing in the transaction by which we could attribute to the writer a concealment of the cause of action.

The action of the circuit court is affirmed.

LIBEL. THE PUBLICATION of a libelous letter is complete when it is received and read: Alabama etc. Ry. Co. v. Brooks, 69 Miss. 168, 30 Am. St. Rep. 528.

LIMITATION OF ACTIONS.-IGNORANCE, FRAUD, and mistake as affecting the operation of the statute of limitations are treated in the extended note to Alabama etc. Ry. Co. v. Jones, 55 Am. St. Rep. 515, 516

MCCLINTOCK v. JOYNER.

[77 Mississippi, 678.]

LANDLORD AND TENANT-ASSIGNMENT OF RIGHT TO RENEW LEASE.-The right of a tenant to renew a lease is assignable, and the benefit of such right may be enforced by the assignee.

LANDLORD AND TENANT-RIGHT TO RENEW LEASEWHEN MAY BE EXERCISED.-The right of the tenant to renew the lease not limited by grant may be exercised at any time during the original term, unless the tenant is called upon by the landlord to exercise or decline his privilege of renewal at an earlier period.

Griffin & Larkin, for the appellant.

J. H. Wynn, for the appellee.

680 TERRAL, J. The appellee addressed to the assignor of appellant the following letter:

"Belzoni, Washington County, Miss., Nov. 1, 1896. "J. W. McClintock.

"Dear Sir: In consideration of the monthly payment of twenty dollars payable on the first day of each month, I will lease you my two-story frame storehouse on lot number five, north of Main street, for a term of three years, commencing

with the first day of November, 1896, and with the privilege of your renting for a second term of three or five years at the same price, the above being the same storehouse built by R. L. Edwards during the months of September and October, 1896. "EDNA JOYNER."

J. W. McClintock accepted said lease by entering into the occupation of said storehouse. He paid the rent as required until the sixteenth day of August, 1899, when, in consideration of one hundred dollars, he sold and transferred by writing his title and interest in said lease to S. H. McClintock, who, having complied with all the conditions of said lease, and before its expiration, demanded of Mrs. Joyner a renewal of said lease for five years. This request Mrs. Joyner refused, though she had notice of the assignment of said lease to him, and of his wish to renew the same before its expiration. McClintock sued Mrs. Joyner for breach of contract in the sum of five hundred dollars. A demurrer to the declaration was sustained, and McClintock appeals. The declaration states a good cause of action, and the demurrer should have been overruled.

The right of renewal is often a valuable right, and it seems to have so proved in this case. The right of renewal constitutes a part of the tenant's interest in the land, and may be sold and assigned by him, and the benefits of this right may be enforced by the assignee: Wood on Landlord and Tenant, 675.

681 Mrs. Joyner, of course, might have limited the time in which McClintock could exercise his privilege of renewal, but not having done so, his option continued during his tenancy, and could not have been determined until the expiration of his tenancy unless Mrs. Joyner had called upon him to exercise or decline his privilege at an earlier period: Moss v. Barton, 35 Beav. 197; Hersey v. Giblett, 18 Beav. 174; Woodfall on Landlord and Tenant, *369.

Mrs. Joyner, having deprived the plaintiff of a valuable right purchased of her, the damage arising to him on that account should be borne by her.

Reversed, demurrer overruled, and remanded.

LEASE. THE PRIVILEGE OF RENEWING a lease is a vendible interest: Phyfe v. Wardell, 5 Paige, 268, 28 Am. Dec. 430. A covenant to renew a lease runs with the land, and the assignee of the lease may require specific performance of it: Robinson v.. Perry, 21 Ga. 183, 68 Am. Dec. 455. See, further, on the renewal of leases, Johnson's Appeal, 115 Pa. St. 129, 2 Am. St. Rep. 539; Herter v. Mullen, 159 N. Y. 28, 70 Am. St. Rep. 517; note to Blumenberg v. Myres, 91 Am. Dec. 563-566.

WILSON V. ALABAMA GREAT SOUTHERN RAILROAD COMPANY.

[77 Mississippi, 714.]

HEALTH AND QUARANTINE.-ORDERS OF BOARDS OF HEALTH must stand the test of reasonableness, and whether they are reasonable or not is for the court to determine.

HEALTH AND QUARANTINE-ORDERS OF BOARDS OF HEALTH, WHEN UNREASONABLE.-An order of a board of health prohibiting all persons from getting off trains and boats at any point within the state, because "there is yellow fever at several places along the coast in this state, and several cases of yellow fever and reported suspected cases at various other places throughout the state," is unreasonable and void.

HEALTH AND QUARANTINE-ORDERS OF BOARDS OF HEALTH-REASONABLENESS.-An order of a board of health that no person who has been exposed to infection, or who has come from an infected point, or who is destined for an infected point, shall be allowed to come into the state, is reasonable and valid; but an order that no person whomsoever shall be allowed to get off of a train of cars or a boat anywhere within the state is unreasonable and void.

HEALTH AND QUARANTINE-LIABILITY OF RAILROADS.-A railroad company must take the risk of the validity of a quarantine order of a board of health, when it yields to such order alone, and when its defense is not that it yielded because only of the order, but because also of vis major, its defense is maintained if it appears that such vis major or uncontrollable necessity was the real cause of its action.

APPELLATE PRACTICE-FATAL ERROR.-If it appears to the supreme court that the plaintiff has no cause of action or the defendant no defense which the law can allow to stand, the court must act upon the fatal infirmity presented by the record although no objection was made thereto in the lower court.

W. T. Houston, for the appellant.

Fewell & Son, for the appellee.

717 WHITFIELD, C. J. Appellant's rights were fixed September 23, 1897, and are not affected by the provisions of the second and ninth sections of the act of 1898: Laws 1898, p. 93.

The presence of all three of the members of the executive committee of the state board of health was necessary to a valid order on September 15, 1897, when the order in question was made: Laws 1894, c. 38, p. 33. This is made clear, as the legislative purpose, by the amendment (Laws 1898, sec. 2, p. 93), 718 providing, for the first time, that "the presence of two members of the executive committee" would do thereafter. The order in question was made by only two members, it not being shown that three were present. Nor is it shown that