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gable stream must, be determined by a consideration of its condition in a state of nature. A stream that is unnavigable in fact cannot, by dredging and the removal of obstructions, be converted into a navigable stream so as to affect the rights of the riparian owners in the stream or in its bed, except in the exercise by the State of the right of eminent domain. The conversion of a non-navigable into a navigable stream would be a taking of private property for a public use, which is only possible on payment of full compensation to the riparian owners. It is sometimes supposed that in the case of Carondelet Canal & Navigation Co. v. Parker, the State undertook to convert a non-navigable into a navigable stream without payment of compensation to the riparian owners, and in the syllabus of the case as reported in the American Reports, it is stated that the State may authorize a private corporation to convert an unnavigable stream into a navigable stream, and charge tolls for the improvements. But a careful study of the case will reveal the fact that the bayou St. John was really in legal contemplation a navigable stream, although practically unnavigable for most if not all commercial purposes. But, on payment of compensation, the right of property in a nonnavigable stream may be forfeited by its conversion into a navigable stream, in the same manner as all other rights of property in lands must fall under the exercise of the right of eminent domain.
§ 126. Statutory liability of lessors for the acts of lessees. - Independently of statute, the lessor is not in any manner responsible for the wrongful acts of his lessee. The owner of an estate for years in lands is, during the continuance of the tenancy, as independent an owner, so far as the liability to the State or to the individual is concerned, as the tenant in fee. Certain uses of lands may be probibited, because of their injurious effect upon the person or property of others, and the doing of such acts at once becomes unlawful. The State may punish the wrong-doer by the imposition of penalties or otherwise, and the individual who bas suffered damage in consequence of the wrongful act, may recover damages of him in the proper action.
1 See Hathorn v. Stinson, 12 Me. 183; Bradley v. Rice, 13 Me. 200; Waterman v. Johnson, 13 Pick. 261 ; Wood o. Kelley, 30 Me. 47; Paide 0. Woods, 108 Mass. 170, in which it has been settled that if a natural pond or lake is raised by artificial means, the boundary line will continue to be at low water mark of the pond in its natural state.
2 29 La. Ann. 430 (29 Am. Rep. 339).
It is often a difficult matter to secure the enforcement of a public regulation, particularly if it concerns the manner of using premises, which does not involve a direct trespass upon the rights of others. Inasmuch as the proprietor of lands is only a tenant of the State, the terms and conditions of whose tenancy may be so regulated as that the public good may not suffer, the State may impose upon the landlord the duty of securing the enforcement of the law in respect to the prohibited use of the premises, by imposing on him a penalty for leasing his lands with the intent or knowledge that the premises will be used for unlawful purposes; and the State may also provide it to be his duty, as well as right, to enter upon the land for the purpose of forfeiting the lease, whenever it comes to his knowledge that the lessee is making an unlawful use of the premises. The performance of this police duty may become very burdensome, but the constitutionality of the law which imposes it can not be questioned. Thus it has been held to be reasonable to impose a penalty on the owner of a house for permitting his house to be used for prostitution. But while the State may impose this police duty upon the lessor to prevent the lessee from making an unlawful use of the premises, he can only be required to exercise reasonable care in the performance of the duty; and his responsibility under such statutes is confined to those cases in which he has actual knowledge of the wrongful use of the property. It is furthermore true, that the State cannot, in imposing this police duty, as was done in one case by the New York legislature, declare the lessor to be responsible to third persons who may have been damaged by the unlawful use of the premises. The New York statute, just referred to, created a cause of action for damages in favor of the person or property which was damaged by the act of an intoxicated person against the owner of real property, whose only connection with the injury is that he leased the premises where the liquor causing the intoxication was sold or given away, with the knowledge that intoxicating liquors were to be sold thereon. The act was declared by the New York Court of Appeals to be constitutional, but we hope to show that it was an amazing, and altogether unconstitutional, interference with civil liberty and private property. The language of the court indicates that they appreciated the practical scope and effect of the statute, and it will be profitable for the reader to quote from the opinion of the court, in describing the character of this piece of legislation. The court say: “To realize the full force of this inquiry it is to be observed that the leasing of premises to be used as a place for the sale of liquors is a lawful act, not probibited by this or any other statute. The liability of the landlord is not made to depend upon the nature of the act of the tenant, but exists irrespective of the fact whether the sale or giving away of the liquor was lawful or unlawful, that is, whether it was authorized by the license law of the State, or was made in violation of that law. Nor does the liability depend upon any question of negligence of the landlord in the selection of the tenant, or of the tenant in selling the liquor. Although the person to
1 McAlister o. Clark, 33 Conn. 91; People v. Erwin, 4 Den. (N. Y.) 129; Territory v. Dakota, 2 Dak. 155.
whom the liquor is sold is at the time apparently a man of sober habits, and, so far as the vendor knows, one whose appetite for strong drink is habitually controlled by his reason and judgment, yet if it turns out that the liquor sold causes or contributes to the intoxication of the person to whom the sale or gift is made, under the influence of which he commits an injury to person or property, the seller and his landlord are by the act made jointly and severally responsible. The element of care or diligence on the part of the seller or landlord does not enter into the question of liability. The statute imposes upon the dealer and the landlord the risk of any injury which may be caused by the traffic. It cannot be denied that the liability sought to be imposed by the act is of a very sweeping character, and may in many cases entail severe pecuniary liability ; and its language may include cases not within the real purpose of the enactment. The owner of a building who lets it to be occupied for the sale of general merchandise, including wines and liquors, may under the act be made liable for the acts of an intoxicated person, where his only fault is that he leased the premises for a general business, including the sale of intoxicating liquors, in the same way as other merchandise. The liability is not restricted to the results of intoxication from liquors sold or given away to be drunk on the premises of the seller. There is no way by which the owner of real property can escape possible liability for the results of intoxication, where he leases or permits the occupation of his premises, with the knowledge that the business of the sale of liquors is to be carried on upon the premises, whether alone or in connection with other merchandise, or whether they are to be sold to be drunk on the premises or to be carried away and used elsewhere.” In declaring the act to be constitutional, the court continue: " There are two general grounds upon which the act in question is claimed to be unconstitutional; Erst, that it operates to restrain the lawful use of real property by the owner, inasmuch as it attaches to the particular use a liability, which substantially amounts to prohibition of such use, and, as to the seller, imposes a pecuniary responsibility, which interferes with the traffic in intoxicating liquors, although the business is authorized by law; and, secondly, that it creates a right of action unknown to the common law and subjects the property of one person to be taken in satisfaction of injuries sustained by another, remotely resulting from an act of the person charged, which act may be neither negligent nor wrongful, but may be in all respects in conformity with the law.
The right of the State to regulate the traffic in intoxicating liquors, within its limits, has been exercised from the foundation of the government, and is not open to question. The State may prescribe the persons by whom and the conditions under which the traffic may be carried on. It may impose upon those who act under its license such liabilities and penalties as in its judgment are proper to secure society against the dangers of the traffic and individuals against injuries committed by intoxicated persons under the influence of or resulting from their intoxication.
It is quite evident that the act of 1873 may seriously interfere with the profitable use of real property by the owner. This is especially true with respect to a building erected to be occupied as an inn or hotel, and especially adapted to that use, where the rental value may largely depend upon the right of the tenant to sell intoxicating liquors. The owner of such a building may well hesitate to lease his property when by so doing he subjects himself to the onerous liability imposed by the act. The act in this way indirectly operates to restrain the absolute freedom of the owner in the use of his property, and may justly be said to impair its value. But this is not a taking of his property within the constitution. He is not deprived either of the title or the possession. The use of his property for any other lawful purpose is unrestricted, and he may let or use it as a