subject, which, however, it had not exercised.1 These several cases, and the elaborate discussions with which the decisions in each were accompanied, together with the leading case of Gibbons v. Ogden, may be almost said to exhaust the reasoning upon the subject, and to leave little to be done by those who follow beyond the application of such rules for classification as they have indicated.

We have elsewhere referred to cases in which laws requiring all persons to refrain from their ordinary callings on the first day of the week have been held not to encroach upon the religious liberty of those citizens who do not observe that day as sacred. Neither are they unconstitutional as a restraint upon trade and commerce, or because they have the effect to destroy the value of a lease of property to be used on that day, or to make void a contract for Sunday services.3

The highways within and through a State are constructed by the State itself, which has full power to provide all proper regulations of police to govern the action of persons using them, and to make from time to time such alterations in these ways as the proper authorities shall deem proper. A very common regulation is that parties meeting shall turn to the right; the propriety of which none will question. So the speed of travel may be regulated with a view to safe use and general protection, and to prevent a public nuisance. So beasts may be prohibited from running at large, under the penalty of being seized and sold. And it has been held competent under the same power to require the owners of urban property to construct and keep in repair and free from obstructions the sidewalks in front of it, and in case of their failure to do so to authorize the public authorities to do it at the expense of the property, the courts distinguishing this from taxation, on the

1 Cooley v. Board of Wardens, 12 How. 299. See Barnaby v. State, 21 Ind. 450. 29 Wheat. 1.

Lindenmuller v. People, 33 Barb. 576. And see Ex parte Andrews, 18 Cal. 678; Ex parte Bird, 19 Cal. 130.

As to the right to change the grade of a street from time to time without liability to parties incidentally injured, see ante 207.

5 Commonwealth v. Worcester, 3 Pick. 473; People v. Jenkins, People v. Roe, Ibid. 470.

McKee v. McKee, 8 B. Monr. 433.

Hill, 469;

'Godard, Petitioner, 16 Pick. 504; Bonsall v. Mayor of Lebanon, 19 Ohio, 418; Paxson v. Sweet, 1 Green, N. J. 196; Lowell v. Hadley, 8 Met. 180;

ground of the peculiar interest which those upon whom the duty is imposed have in its performance, and their peculiar power and ability to perform it with the promptness which the good of the community requires.1 For the like reasons it has been held competent, where a district of country was liable to be inundated by the overflow of a large river, to require the owners of lands lying upon the river to construct levees on the river front at their own expense, and, on their failure to comply with this regulation, to cause such levees to be constructed under the direction of the public authorities, and the expense assessed upon the land of such owners.2

Navigable waters are also a species of public highway, and as such come under the control of the States. The term "navigable," at the common law, was only applied to those waters where the tide ebbed and flowed, but all streams which were of sufficient capacity for useful navigation, though not called navigable, were public, and subject to the same general rights which the public exercised in highways by land. In this country there has been a very general disposition to consider all streams public which are useful as channels for commerce, wherever they are found of sufficient capacity to float the products of the mines, the forests, or the tillage of the country through which they flow, to market. And if a stream is of sufficient capacity for the floating of rafts and logs in the condition in which it generally appears by nature, it will be regarded as public, notwithstanding there may be times when it becomes too dry and Washington v. Mayor, &c. of Nashville, 1 Swan, 177; Mayor, &c. v. Medbury, 6 Humph. 368; Woodbridge v. Detroit, 8 Mich. 309, per Christiancy, J.; Matter of Dorrance St., 4 R. I. 230; Deblois v. Barker, Ibid. 445; Hart v. Brooklyn, 36 Barb. 226.

1 See especially the case of Godard, Petitioner, 16 Pick. 504, for a clear and strong statement of the grounds on which such legislation can be supported. Crowley v. Copley, 2 La. An. 329.

3 Lorman v. Benson, 8 Mich. 26; Morgan v. King, 18 Barb. 283.

Brown v. Chadbourne, 31 Me. 9; Shaw v. Crawford, 10 Johns. 236; Munson v. Hungerford, 6 Barb. 265; Browne v. Scofield, 8 Barb. 239; Morgan v. King, 18 Barb. 284, 30 Barb. 9 and 35 N. Y. 454; Cates v. Wadlington, 1 McCord, 580; Commonwealth v. Chapin, 5 Pick. 199; Moore v. Sanbourne, 2 Mich. 519; Lorman v. Benson, 8 Mich. 18; Depew v. Board of Trustees, &c., 5 Ind. 8; Board of Trustees v. Pidge, Ibid. 13; Stuart v. Clark, 2 Swan, 9; Dalrymple v. Mead, 1 Grant's Cases, 197; Commissioners of Homochitto River v. Withers, 29 Miss. 21; Rhodes v. Otis, 33 Ala. 578; McManus v. Carmichael, 3 Iowa, 1. And see Scott v. Willson, 3 N. H. 321.

shallow for the purpose. "The capacity of a stream, which generally appears by the nature, amount, importance, and necessity of the business done upon it, must be the criterion. A brook, although it might carry down saw-logs for a few days, during a freshet, is not therefore a public highway. But a stream upon which and its tributaries saw-logs to an unlimited amount can be floated every spring, and for the period of from four to eight weeks, and for the distance of one hundred and fifty miles, and upon which unquestionably many thousands will be annually transported for many years to come, if it be legal so to do, has the character of a public stream for that purpose. So far the purpose is useful for trade and commerce, and to the interests of the community. The floating of logs is not mentioned by Lord Hale [in De Jure Maris], and probably no river in Great Britain was, in his day, or ever will be, put to that use. But here it is common, necessary, and profitable, especially while the country is new; and if it be considered a lawful mode of using the river, it is easy to adapt wellsettled principles of law to the case. And they are not the less applicable because this particular business may not always continue; though if it can of necessity last but a short time, and the river can be used for no other purpose, that circumstance would have weight in the consideration of the question." But if the stream was not thus useful in its natural condition, but has been rendered susceptible of use by the labors of the owner of the soil, the right of passage will be in the nature of a private way, and the public do not acquire a right to the benefit of the owner's labor, unless he sees fit to dedicate it to their use.2

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.3 The question what is a navigable stream would seem to be a mixed question of law and fact; and though it is said that the legislature of the State may determine whether a

1

4

Morgan v. King, 18 Barb. 288; Moore v. Sanborne, 2 Mich. 519. Wadsworth's Adm'r v. Smith, 11 Me. 278; Ward v. Warner, 8. Mich. 521.

* Commonwealth v. Charlestown, 1 Pick. 180; Kean v. Stetson, 5 Pick. 492 ; Arnold v. Mundy, 1 Halst. 1; Bird v. Smith, 8 Watts, 434. They are equally for the use of the public in the winter when covered with ice; and one who cuts a hole in the ice in an accustomed way, by means of which one passing upon the ice is injured, is liable to an action for the injury. French v. Camp, 6 Shep. 433. 4 See Treat v. Lord, 42 Me. 552.

stream shall be considered a public highway or not,1 yet if in fact it is not one, the legislature cannot make it so by simple declaration, since, if it is private property, the legislature cannot appropriate it to a public use without providing for compensation.2

The general right to control and regulate the public use of navigable waters is unquestionably in the State; but there are certain restrictions upon this right growing out of the power of Congress over commerce. Congress is empowered to regulate commerce with foreign nations and among the several States; and wherever a river forms a highway upon which commerce is conducted with foreign nations or between States, it must fall under the control of Congress, under this power over commerce. The circumstance, however, that a stream is navigable, and capable of being used for foreign or inter-State commerce, does not exclude regulation by the State, if in fact Congress has not exercised its power in regard to it; 3 or having exercised it, the State law does not come in conflict with the congressional regulations, or interfere with the rights which are permitted by them.

The decisions of the Federal judiciary in regard to navigable waters seem to have settled the following points:

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1. That no State can grant an exclusive monopoly for the navigation of any portion of the waters within its limits upon which commerce is carried on under coasting licenses granted under the authority of Congress, since such a grant would come directly in conflict with the power which Congress has exercised. But a State law granting to an individual an exclusive right to navigate the upper waters of a river, lying wholly within the limits of the State, separated from tide water by falls impassable for purposes of navi

1 Glover v. Powell, 2 Stockt. 211; American River Water Co. v. Amsden, 6 Cal. 443; Baker v. Lewis, 33 Penn. St. 301.

* Morgan v. King, 18 Barb. 284; Same case, 35 N. Y. 454.

Wilson v. Black Bird Creek Marsh Co., 2 Pet. 245. In this case it was held that a State law permitting a creek navigable from the sea to be dammed so as to exclude vessels altogether was not opposed to the Constitution of the United States, there being no legislation by Congress with which it would come in conflict. And see Wheeling Bridge Case, 13 How. 518.

Gibbons v. Ogden, 9 Wheat. 1. The case was the well-known historical one, involving the validity of the grant by the State of New York to Robert Fulton and his associates of the exclusive right to navigate the waters of that State with vessels propelled by steam.

gation, and not forming a part of any continuous track of commerce between two or more States, or with a foreign country, does not come within the reason of this decision, and cannot be declared void as opposed to the Constitution of the United States.1

2. The States have the same power to improve navigable waters which they possess over other highways; and where money has been expended in making such improvement, it is competent for the State to impose tolls on the commerce which passes through and has the benefit of the improvement, even where the stream is one over which the regulations of commerce extend.3

3. The States may authorize the construction of bridges over navigable waters, for railroads as well as for every other species of highway, notwithstanding they may to some extent interfere with the right of navigation. If the stream is not one which is subject to the control of Congress, the State law permitting the erection cannot be questioned on any ground of public inconvenience. The legislature must always have power to determine what public ways are needed, and to what extent the accommodation of travel over one way must yield to the greater necessity of another. But if the stream is one over which the regulations of Congress extend, the question is somewhat complicated, and it becomes necessary to consider whether such bridge will interfere with the regulations or not. But the bridge is not necessarily unlawful, because it may constitute, to some degree, an obstruction to commerce, if it is properly built and upon a proper plan, and if the general traffic of the country will be aided rather than impeded by its construction. There are many cases where a bridge over a river may be vastly more important than the navigation; and there are other cases where, although the traffic upon the river is important, yet an incon

1 Veazie v. Moor, 14 How. 568. The exclusive right granted in this case was to the navigation of the Penobscot River above Old Town, which was to continue for twenty years, in consideration of improvements in the navigation to be made by the grantees. Below Old Town there were a fall and several dams on the river, rendering navigation from the sea impossible.

The improvement of a stream by State authority will give no right of action to an individual incidentally injured by the improvement. Zimmerman v. Union Canal Co., 1 W. & S. 346.

Palmer v. Cuyahoga Co., 3 McLean, 226; Kellogg v. Union Co., 12 Conn. 7; Thames Bank v. Lovell, 18 Conn. 500.

* See Commonwealth v. Breed, 4 Pick. 460; Depew v. Trustees of W. & E. Canal, 5 Ind. 8.