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If it be conceded that the owners of low lands are under a legal obligation to remove from their lands all natural as well as artificial caus es of injury to the public health, it cannot be denied that the State may, by appropriate legislation, compel the performance of this duty; and if the land owner refuses to drain his land, to drain it for him and compel him to reimburse the State for the entire cost of drainage, whatever relation it bears to the increase in the value of the land. The burdensome character of the duty does not affect the obligation to perform it, and it would not be unconstitutional to impose upon the land owner the payment of the cost of drainage, in excess of the special benefits he has received from the improvement. On the other hand, if it be true that there is no natural obligation upon the land owner to remove from his land all nuisances produced by natural causes, the entire cost of compulsory drainage cannot be imposed by statute upon those who own such lands at the time when the statute was enacted. The State may in the grant of its public lands impose upon the purchaser whatever conditions and duties the public welfare may seem to demand; and so, likewise, may the State provide that all future purcoasers of swamps and other low lands shall drain them of the stagnant water, for in both cases there is no interference with vested rights, which our constitutions prohibit. But it is an unconstitutional interference with vested rights, to impose this statutory obligation upon those who possess such lands when the statute was adopted. Providing for the limitation of the assessment on the land owner to the amount of special benefit received by him from the drainage, is an attempt to make an equitable adjustment of what would otherwise be a clear violation of the rights of property; but it is altogether illogical and untenable. It is as much a violation of the rights of property to compel the owner to pay for improvements to his lands, which he did not order and does not want, as to impose on him the entire cost of removing a natural nuisance, which it was not his duty to abate. The State has the right, either to impose on the land owner the payment of the entire cost of drainage, or to exact nothing. As taxation, this special assessment would seem to offend the constitutional provisions, which require that all taxation shall be equally distributed.
SECTION 125. Regulation of non-navigable streams - Fisheries.
125a. Conversion of non-navigable into navigable streams.
§ 125. Regulation of non-navigable streams — Fisheries. — Where two tracts of land are divided by a naviga
. ble stream, the general rule is that the boundary line is the low water mark on the adjoining shore, and the soil or bed of the stream is the property of the State. But if the stream is not navigable, the boundary line is the center of the current of the stream, commonly called the filum aqua, and the owners of the shore have a right of property in the bed of the stream up to this filum aquce. In neither case does any one acquire any exclusive right of property in the stream of water. The riparian owner, in the case of a non-navigable stream, may make a reasonable use of the water, even appropriating absolutely a portion of it, in the form of water or of ice, but no one has a right to assume absolute control of the stream, unless from beginning to end it lies wholly within his lands. Where a non-navigable stream passes over the lands of two or more adjacent owners, the adjacent riparian owners have mutual easements upon the soil of each for the free and unrestricted flow of the water. The riparian owners have the right to use the water to a reasonable extent, but can not so use it as to di
1 See post, $ 129.
? As to what is, and is not, a navigable stream, see Tiedeman on Real Property, $ 835; 1 Washb. on Real Prop. 413; and cases cited in these treatises.
minish the flow or corrupt the water. It may be said with truth that almost any use of a stream of water is likely to corrupt it, and, in the absence of statutory regulation, what is and is not a lawful use of the stream, is a judicial question, to be determined by the consideration of the circumstances of the case, including the economic necessities and industries of the community through which the stream passes.
The maintenance of a tannery or saw mill may not be a nuisance in one locality, while it may be considered one in some other locality. And, independently of statute, if the riparian proprietors make a certain use of a stream for some time, the fact that it renders the stream unfit for another use, which some other riparian owner wishes to make of it, does not make the customary use of the stream a nuisance. But the legislature may, in consideration of the public interest, prohibit any use of a nonnavigable stream, which interferes with another use of it, when the public welfare demands that the stream should be adapted to the latter use. Thus, an act of the legislature was declared to be constitutional, which prohibited the use of all streams entering into a reservoir, in any way that would pollute or corrupt the water. But it can hardly be doubted that, if such a stream had been previously used in connection with a tannery, or other business, which would render the water of the stream unfit for drinking purposes, the subsequent establishment of a reservoir, drawing its water from this stream, and the prohibition of the tannery or other like business, could not be sustained, so far as the prohibition or destruction of the objectionable business is concerned, unless provision was made for payment of compensation to the owner of the tannery or other
1 Washburn v. Gilman, 64 Me. 163 (18 Am. Rep. 246); Richmond Manuf. Co. v. Atlantic Delaine Co., 10 R. I. 106 (14 Am. Rep. 658); Jacobs v. Allard, 42 Vt. 303 (1 Am. Rep. 331).
3 State v. Wheeler, 44 N. J. L. 88.
like business for the loss he has thus sustained. Such a prohibition would be a taking of private property for a public use, within the meaning of the constitution al provision, which requires the payment of compensation for the property so taken.
The riparian owner is prohibited from erecting or maintaining a dam across the stream, and causing an overflow of the land above or diminishing the volume of the stream below. But whenever the public welfare requires it, or it serves in any way to promote the public good, the legislature may authorize the construction and maintenance of such dams, provided compensation is made to all riparian proprietors, who may have been injured thereby. While the maintenance of a dam, without legislative sanction and without the consent of the riparian owners, is a trespass, if made and maintained for the statutory period of limitation under a claim of right to do so, an absolute right to its maintenance may thus be acquired; and it has been held that one, who has maintained a dam across a non-navigable stream for twenty-one years, cannot be required by statute to construct and maintain a passage-way over the same for fish.s The owner of the dam cannot be compelled at his own expense to maintain this passage-way, but the State can undoubtedly authorize those, who may be thereby benefited, to construct the passage-way at their expense, taking care to compensate the owner of the dam for whatever damage he has suffered."
It is not permissible at common law to divert a stream from its regular channel, if by so doing injury results to the
1 Sampson v. Hoddinot, 1 C. B. (n. 8.) 590; Colburn o. Richards, 13 Mass. 420, Anthony o. Lapham, 5 Pick. 175.
? Lee v. Pembroke Iron Co., 57 Me. 481 (2 Am. Rep. 59); Gray; o. Harris, 107 Mass. 492 (9 Am. Rep. 61); Proctor o. Jennings, 6 Nev. 83 (3 Am. Rep. 240).
8 Woolever o. Stewart, 36 Ohio St. 146 (38 Am. Rep. 566). · Commonwealth v. Pa. Canal Co., 66 Pa. St. 41 (5 Am. Rep. 329).
owners above or below. Water may be diverted from the channel for any reasonable use, but it can only be detained as long as it is necessary and reasonable, and it must be returned to the channel before it passes to the land of the riparian proprietor below. But what would otherwise be an unlawful or unreasonable diversion or detention of the stream may be legalized by legislative authorization, upon payment of compensation for all damage suffered by the other riparian owners.
Another, sometimes valuable, right of property in nonnavigable streams, which may be subjected to police regulation, is the right to catch the fish of the stream. The riparian owners have the right to fish on their own banks, and in any part of the stream which lies within their boundary line. Unless the catching of fish is conducted with reason, either the fish may be altogether exterminated, or the enjoyment of the right by one may interfere with the equal enjoyment of the right by others. For the protection of the fish, and for the maintenance of equality in respect to the right to fish, the State can rightly regulate fisheries, providing that the regulations are reasonable, and do not extend beyond the prevention of the threatened injuries.3
§ 125a. Conversion of non-navigable into navigable streams. — Whether a stream is a navigable or a non-navi
1 Elliott v. Fitchburg P. R. Co., 10 Cush. 191; Macomber o. Godfrey, 108 Mass. 219 (11 Am. Rep. 349); Tuthill v. Scott, 44 Vt. 525 (5 Am. Rep. 301).
* Clinton v. Myers, 46 N. Y. 511 (7 Am. Rep. 373); Arnol 0. Foot, 12 Wend. 330; Miller o. Miller, 9 Pa. St. 74; Pool v. Lewis, 46 Ga. 162 (6 Am. Rep. 526).
See Holyoke Co. v. Lyman, 15 Wall. 500; Commonwealth v. Chapin, 5 Pick. 199; Commonwealth v. Essex Co., 13 Gray, 247; Weller v. Snover, 42 N.J. L. (13 Vroom), 341; Doughty v. Conover, 42 N.J. L. (13 Vroom), 192. In the last case, the statute under consideration prohibited the use of fishing nets at certain times of the year in particular counties. See, also, Commrs. of Inland Fishing v. Holyoke Water Power Co., 104 Mass. 446 (6 Am. Rep. 247).