We have been referred to several cases decided by courts of high authority in which it was held that the authorization of street railways, such as are ordinarily used in cities, is not the imposition of an additional burden upon the street for which the owners of the servient estate are entitled to compensation, and the weight of anthority is to this effect. But it is obvious that the purpose and use of an ordinary street railway are very different from those of the railroad under consideration. Street railways derive their business from the street; are intended for the convenience of the travel thereon; and may, with much force of reason, be said to be in aid of the identical use for which the street was created, and not a new and independent use.

It is to be observed that it is becoming common for transfers of cars in cities, from one line of railroad to another, to be made by an independent transfer company, owning its own tracks, and there is no sufficient basis of reason or utility for a discrimination which would deny compensation to the abutting owner for the use of his servient estate for railroad purposes by a transfer company, and uphold his right to compensation for a substantially similar and no more detrimental use by railroad companies, operating lines into or through the same cities. We are of opinion, therefore, that the use to which the defendant has put the alley is, within the adjudications of this State, the imposition of a new and additional servitude upon it.

2. It appears that block 28 in the city of Stillwater, as originally platted, extends to the waters of Lake St. Croix, through which flows the St. Croix River, a navigable stream. The lots in this block front on Main Street on the west, and run back east to the lake; and there was laid down on the plat, across the lots, an alley 30 feet wide, called Stimpson's alley, running north and south through the block, upon which defendant's railroad is constructed. The plaintiff is the owner of certain of these lots. It further appears from the verdict of the jury, upon certain questions submitted, that the alley and all that portion of the lots lying east of it was below low-water mark at the time the plat was made, though the lots as platted are entirely within the meander line of the ernment survey.

gov

This last fact is, however, not material, as it is well settled that, in such cases, the stream and not the meander line is the boundary. That portion of the lots intended, as appears from the plat, to be subjected to the easement of a public alley, and all lying east of the alley, is "made land," having been reclaimed from the waters by filling out into the lake. When or by whom this filling was done does not distinctly appear; but inasmuch as it is found "that Stimpson's alley is a public street in the city of Stillwater, duly laid out and established, and has been in use as such for more than 15 years, and is under the care, custody, and

control of the city council," it follows that a portion, at least, of the filling was done at least 15 years ago; and as it is not claimed on the part of the defendant that the State ever undertook to assert any dominion over the made land, except as to the easement of the alley, through the power delegated by the city charter, I think it must be assumed that such filling was done by the owners of the lots for their own use. It is not found whether the filling was done in shallow or deep water; but inasmuch as it is found "that the portion of said lot east of said alley claimed by the plaintiff fronts upon Lake St. Croix, and is of value as a landing for boats and business purposes," it is to be assumed that the filling out into the lake was for the purpose of reaching navigable water, so as to make the shore valuable for the uses connected with the navigation of the river.

It is claimed that the plaintiff's title did not extend to lands covered by the waters of the lake, but stopped at the line of low water; and such is the law. But it is well settled that the owner of land bounded by a navigable stream has certain riparian rights which spring from the ownership of the bank, and are not dependent upon a strict legal title in him to the soil covered by the water. These rights were clearly defined by Mr. Justice Cornell in Brisbine v. St. Paul and Sioux City R. R. Co., 23 Minn. 114, as follows: "The right to enjoy free communication between his abutting premises and the navigable channel of the river; to build and maintain, for his own and the public use, suitable landing places, wharves, and piers on and in front of his land, and to extend the same therefrom into the river to the point of navigability, even though beyond low-water mark; and to this extent exclusively to occupy for such and like purposes the bed of the stream, subordinate and subject only to the navigable rights of the public, and such needful rules and regulations for their protection as may be prescribed by competent legislative authority."

In addition to the authorities cited in the opinion in this case, the doctrine has the authority of a recent English case in the House of Lords, and we are satisfied that it rests upon solid grounds of justice and utility. Long v. Fishmongers, L. R. 1 App. Cas.

662.

It does not appear that the use made of the shore in this case has caused the least impediment to the free and unobstructed navigation of the river, or has been prejudicial in any way to the public interests. These riparian rights are property, and cannot lawfully be taken for public use without compensation. Brisbine v. St. P. & S. C. R. R. Co., supra; Yates v. Milwaukee, 10 Wall. 197. We think the acts done by the defendant are an invasion of the riparian rights of the plaintiff.

The decision of the court below having been in accordance with

the conc.usions reached by us, it follows that the judgment ap pealed from must be affirmed.

As to the right of a riparian owner to compensation, see Delaplaine v. The Chicago and Northwestern Ry. Co., 42 Wis. 214; McCarthy . The Metropolitan Board of Works, L. R. 8 C. P. 209; 7 H. of L. Cas. (Sc. and Ir. App.) 258; The Duke of Buccleuch v. The Metropolitan Board of Works, L. R. 3 Ex. 306; 5 Ex. 221; 5 H. of L. Cas. (Eng. and Ir. App.) 418; Lyon v. Fishmongers' Co., L. R. 10 Ch. App. 681; 1 App. Cas. 662; Rose v. Groves, 5 Man. & Gr. 614 (44 E. C. L. 323); Baron et al. v. The Mayor and City Council of Baltimore, 2 Am. Jur. 103; Sinneckson v. Johnson, 2 Har. (N. J.) 147; Hoffman v. Hoffman, 2 Dutcher (N. J.), 175; Brayton v. Fall River, 113 Mass. 218; Haskell v. New Bedford, 108 Mass., and the Chicago and Pacific Ry. Co. v. Stein, 75 Ill. 44.

MADDEN

v.

RAILWAY Co.

(36 Ohio State Reports, 46. January Term, 1880.)

A railway company, in consideration of the grant of a right of way for its road, through the lands of the plaintiff and of two other adjoining proprietors, agreed to make such culverts and crossings as might be necessary to enable the parties "to reasonably occupy their lands, to carry off surplus water, etc. ;" and that upon the hillside of said road a sufficient drain should be made and kept open "for the discharge of the drainage." The company built a culvert across its road south of and below said lands, with which the drain on the hill side of the road was connected, and through which the drainage from the lands of the plaintiff was discharged.-Held, that the culverts and the drain form necessary parts of the plan or means agreed on for draining the lands of the plaintiff on the hillside of the railroad, and that for damages caused to such lands by the obstruction of the drain, the company is liable, although the obstruction may not have been on the lands of either of the parties granting the right of way.

ERROR to the District Court of Muskingum county.

The original action was brought by Hugh Madden against The Cincinnati and Muskingum Valley Ry. Co., to recover for the breach of an agreement entered into between the parties.

The agreement is evidenced by writing, as follows:

"Whereas, the Cincinnati and Muskingum Valley Ry. Co., a corporation of the State of Ohio duly organized, are about to locate their line of railroad through the counties of Muskingum. and Coshocton; now the undersigned, to aid said projected public work, and in consideration of one dollar ($1) to each of us in hand paid, do hereby severally agree with the company, in case said road shall be located through or upon any lands owned by us respectively, to convey on demand to the company the rights of way on

the located line over such land one hundred feet wide, and in the mean time we respectively permanently license the company to enter upon, survey, use and occupy such located line and roadway over said lands, with like right as if said conveyance had been made; it being understood, however, that the parties hereto reserve the right to use and occupy so much of said one hundred feet as the railway company do not require, from time to time, for the maintenance and operation of its said roadway; and it being further understood that said railway company shall make such culverts and crossings as may be necessary to enable the parties hereto to reasonably occupy their lands, to carry off surplus waters, etc., to give all necessary crossings. We hereby agree, for the considerations heretofore set forth, to grant to the C. and M. V. Ry. Co. the right of way through our lands, upon the further condition, however, that the road shall be constructed upon its present location; that no material shall be borrowed from the river side of said line, and that upon the hill side of said line a sufficient drain shall be made for the discharge of the drainage; and further, that a guard bank shall be built extending from the railway embankment along the division line between H. Madden and G. W. Adams to the river bank, and also that a crossing shall be made over the railway near the middle of my place.

“HUGH MADDEN,
"C. MATTINGLY,
"HENRY MUNSON."

Before this instrument was deliver to the company, three additional propositions were added. The second only is material in the present proceeding, and is as follows:

"2. As to the drain or ditch on the west side of railroad: Said drain shall be made within the bounds of the road, and as close up to the fill for the road-bed as it can with safety thereto be made, and shall be kept open and in good condition perpetually by said railroad company or its assigns. Said drain shall be made by the 13th October, 1870."

The instrument first named, and the additional propositions were delivered to and accepted by the railroad company as constituting the agreement between the parties; and the railroad company entered upon the premises therein described, and constructed its road under said agreement.

The parties being at issue as to the breaches of the agreement alleged by the plaintiff, the bill of exceptions shows that, "the plaintiff, to maintain the issue on his part, offered evidence tending to prove that the ditch, mentioned in the petition, commenced or had its head on land a few rods north of the north line of plaintiff's said land, and at the foot of rising land; that said ditch ran southwardly along the west side of the said road to plaintiff's south

line, thence in the same direction along the side of said roadway, over the land of Henry Munson and the land of Christopher Mattingly and the land of William Tatham, formerly the land of Elias Ellis; about 600 feet south of said Tatham's north line, said ditch passed eastwardly under the road-bed of said railroad, by a culvert or wagon way, and thence eastwardly some 110 rods on said Tatham's land to the river, the same being the only outlet for any of the water of said ditch. Also, that before the location of said railroad, a ditch to drain the same lands, which should be drained by the ditch mentioned in the petition, was dug over the said lands of plaintiff and Munson and Mattingly and Ellis, the Ellis land being the same now owned by said Tatham; that the head of said ditch was near where the head of defendant's said ditch is located, and the outlet of said ditch was near or at the place where the ditch of defendant has its outlet to the river; that the said ditch first dug was made at the joint expense and under the joint agreement of all the owners of the lands traversed by the same, and was to be and was kept open under said agreement, and jointly by all the owners of said land, but did not completely drain plaintiff's said lands. And that said ditch was so opened and was kept open when defendant's road was located over said lands, and the same was filled up and destroyed by defendant, whose road traversed and crossed said ditch, in the construction of its said road. Also tending to prove that the ditch of defendant, mentioned in the petition, became and was obstructed (by reason of earth, gravel, etc., carried into said ditch by Beach Run, mostly through a channel cut by said Tatham on his own land, after said ditch, in petition mentioned, had been cut by said defendant; said ditch so cut by Tatham was for a drain or natural water-course over theretofore and in that direction running), on the said land of said Tatham, lying south of and adjoining the said land of the said Mattingly, which obstructions were north of the point where said ditch passed under the said railroad, and that defendant permitted said obstructions to remain, unreasonably, in said ditch, interrupting and preventing the flow of water along and through said ditch, and thereby preventing the flow of water through said ditch from the said land of plaintiff and that by reason of said obstructions, etc., in said ditch on the land of said Tatham, and the water so by said obstructions held and detained upon the said land of plaintiff, plaintiff's property was damaged to a large amount.'

The evidence being closed, the court, among other things, charged the jury as follows: "The plaintiff charges that the defendant has violated its contract in several particulars, one of which is permitting the ditch, mentioned in the petition, to become and remain obstructed; such obstructions preventing the flow of water through the ditch, and so preventing the draining of plaintiff's land. My reading of this contract differs from that of