Page images
PDF
EPUB

bankment, or otherwise, subject to two conditions, the first of which is, that he must not do that which diminishes or threatens the corresponding rights of other riparian proprietors;' [*321] and the second is, that he must not abridge or obstruct the public easement, and must be subject always to State

101 Ill. 46; Piper v. Connelly, 108 Ill. 646. The owner of an easement to flow land does not own the ice formed over the land. Stevens v. Kelley, 78 Me. 444; Brookville, &c., Co. v. Butler, 91 Ind. 134. The land owner may take it unless thereby he materially injures the owner of the easement. Dodge v. Berry, 26 Hun, 246; Bigelow. Shaw, 32 N. W. Rep. 800 (Mich.); Searle v. Gardner, 13 Atl. Rep. 835 (Penn).

In Bickett v. Morris, L. R. 1 H.L. Cas. Sc. Ap. 47, 61. Lord WESTBURY says: "When, however, it is said that the proprietors of the bank of a running stream are entitled to the bed of the stream as their property usque ad medium filum, it does not by any means follow that that property is capable of being used in the ordinary way in which so much land uncovered by water might be used; but it must be used in such a manner as not to affect the interest of riparian proprietors in the stream. Now, the interest of a riparian proprietor in the stream is not only to the extent of preventing its being diverted or diminished, but it would extend also to prevent the course being interfered with or affected, so as to direct the current in any different way that might possibly be attended with damage at a future period to another proprietor.

"In the bed of a river there may, possibly, be a difference in the level of the ground, which, as we know, has the effect of directing the tide or current in a particular direction. Suppose the ordinary current flows

in a manner which has created for itself, by attrition, a bay, in a particular part of the bank; if that were obstructed by a building, the effect might be to alter the course of the current, so as to direct the flow with a greater degree of violence upon the opposite bank, or some other portion of the same bank; and then, if at that part of the bank to which the accelerated flow of the water in greater force is thus directed, there happens to be a building erected, the flow of the water thus produced by the artificial obstruction would have the effect, possibly, of wearing away the foundation of that building at some remote period, and would thereby be productive of very considerable damage.

"It is wise, therefore, to lay down the general rule, that even though immediate damage cannot be described, even though the actual loss cannot be predicated, yet, if an obstruction be made to the actual current of the stream, that obstruction is one that constitutes an injury which the courts will take notice of, as an encroachment which adjacent proprietors have a right to have removed. In this sense the maxim has been applied by the law of Scotland that melior est conditio prohibentis, that is to say, you have a right to preserve the state of things unimpaired and unprejudiced in which you have that existing interest." As to the right of the owner of land on navigable water to build out wharves, &c., provided navigation is not obstructed, see further, Delaplaine v. Chicago, &c.

police regulations. In Iowa, North Carolina, Missouri, Kansas, Minnesota, California, Nevada, Oregon and West Virginia, it is held that on streams which are navigable in fact, though not subject to tide-water flow, the line of private ownership is the bank, and not the thread of the river. And this view has the approval

of the Federal Supreme Court."

On the small streams which are highways only for rafting purposes, the title of the bank-owner is conceded on all hands to extend to the thread of the stream, but the public may use them for rafting, taking care not needlessly, by checking the water or otherwise, to injure adjacent lands.❜

Where land is bounded on a fresh-water lake, large or small,

Ry. Co. 42 Wis. 214; Carli v. Stillwater, &c., Co., 28 Minn. 373; Williamsburg Boom Co. v. Smith, 1 S. W. Rep. 765 (Ky.) As to protecting land from washing away, see Diedrich. Northw. &c., Ry. Co., 42 Wis. 248; Barnes v. Marshall, 68 Cal. 569.

McManus v. Carmichael, 3 Iowa, 57; Haight v. Keokuk, 4 Iowa, 199; Tomlin . Railroad Co., 32 Iowa, 106; Wilson . Forbes, 2 Dev. 30; Collins . Benbury, 3 Ired. 277; S. C. 5 Ired. 118; State v. Glen, 7 Jones, (N. C.) 321; Benson v. Morrow, 61 Mo. 345; Meyers v. St. Louis, 8 Mo. App. 266; Wood v. Fowler, 26 Kan. 682; Morrill v. St. Anthony, &c., Co. 26 Minn. 222; Un. Depot Co. v. Brunswick, 31 Minn. 297; Packer v. Bird, 71 Cal. 134; Shoemaker v. Hatch, 13 Nev. 261; Minto v. Delaney, 7 Oreg. 337; Ravenswood v. Flemings, 22 W. Va. 52. See Bainbridge v. Sherlock, 29 Ind. 364. If by act of congress such stream is declared non-navigable the owner's title is not carried to the center. Wood v. Chicago, &c., Ry. Co., 60 Ia. 456.

Barney v. Keokuk, 94 U. S. 324. In Ryan v. Brown, 18 Mich. 196, it was decided that the State could not build structures in a fresh water navigable stream without the consent of the proprietor of the

bank, or without first making compensation. The decision in Barney v. Keokuk is contra. Each State may determine the extent of the riparian owner's title; Webber v. Pere Marq. &c., Co., 30 N. W. Rep. 469 (Mich.); Barney v. Keokuk, supra.

Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Middleton v. Flat River Booming Co., 27 Mich. 533. See Brown v. Chadbourne, 31 Me. 9; Treat v. Lord, 42 Me. 552; Morgan . King, 35 N. Y. 454; Weise v. Smith, 3 Oreg. 445; S. C. 8 Am. Rep. 621; Hubbard v. Bell, 54 Ill. 110; Lawler v. Baring Boom Co., 56 Me. 443; Weaver v. Miss. &c. Co., 28 Minn. 534; Carter v. Thurston, 58 N. H. 104; Haines v. Welch, 14 Oreg. 319; Anderson v. Thunder Bay &c., Co., 28 N. W. Rep. 518 (Mich.); Field v. Apple River &c., Co., 67 Wis. 569. A stream not capable of use for rafting purposes in its natural condition cannot lawfully be made so by dams to the prejudice of land owners. Thunder Bay Co. v. Speechly, 31 Mich. 336. If there is a sufficient sluice in a lawful dam to allow unrafted logs to pass, there is no duty to so build that a raft can pass. Foster v. Searsport, &c., Co., 11 Atl. Rep. 273 (Me).

the boundary line is perhaps low-water mark. On waters where the tide ebbs and flows the line of high water is the limit of exclusive private ownership, though this rule in the [*322] Atlantic *States is much modified either by legislation or

2

by customary law. And in respect to boundary on highways or fresh-water streams, the rules above given are rules of presumption merely, and in any grant of lands the words of conveyance may be such as to bound the lands on the exterior line of a highway, or on the bank of a stream, or on any other line sufficiently designated."

'Waterman . Johnson, 13 Pick. 261; Bradley v. Rice, 13 Me. 198; Stevens. King, 76 Me. 197; Champlain, &c., R. R. Co., v. Valentine, 19 Barb. 484; Canal Commissioners v. People, 5 Wend. 423; Wheeler . Spinola, 54 N. Y. 377; Fletcher v. Phelps, 28 Vt. 257; Jakeway v. Barrett, 38 Vt. 316; Austin v. Rutland, &c., R. R. Co., 45 Vt. 215; State v. Gilmanton, 9 N. H. 461; West Roxbury v. Stoddard, 7 Allen, 158; Trustees v. Schroll, 120 Ill. 509, discussing what is a lake and what a stream. The line in Ohio as to Lake Erie and in Wisconsin as to large and small lakes is that where the water in its usual condition stands. Sloan . Biemiller, 34 Ohio, St. 492; Delaplaine . Chicago, &c., Co., 42 Wis. 214; Boorman v. Sunnuchs, id. 233. Where private ownership extends only to low water mark, the owner of uplands cannot grant a submerged lot separate from the upland. The riparian rights cannot be thus conveyed. Lake Sup. Land Co v. Emerson, 38 N. W. Rep. 200 (Minn.) In Rice . Ruddiman, 10 Mich. 125, the owner of the bank on Lake Muskegon, a small body of water through which the river Muskegon passes near its mouth, was held entitled to the soil under the water in front of his lands on the shore. Followed in Pere Marq. Boom Co. v. Adams, 44

Mich. 403, and applied to Lake Hu

ron.

Lincoln v. Davis, 53 Mich. 375. And, see Cobb v. Davenport, 32 N. J. 369. The owner of a government subdivision bounded by a pond does not own to the center when it is surveyed as part of another subdivision. Edwards . Ogle, 76 Ind. 302. If one owns a fractional subdivision of land on a pond which lies partly in two subdivisions he owns the soil included by the lines of his fractional subdivision extended. Clute . Fisher, 31 N. W. Rep. 614 (Mich).

2 Pollard's Lessee v. Hagan, 3 How. 212; Martin v. Waddell, 16 Pet. 367; East Hampton v. Kirk, 68 N. Y. 459; Storer v. Freeman, 6 Mass. 436; State v. Jersey City, 25 N. J. 525. Hoboken. Penn. Ry. Co. 16 Fed. Rep. 816; Coburn v. Ames, 52 Cal. 385. So in case of the Harlem river. Mayor, &c., of N. Y. v. Hart, 95 N. Y. 443.

See opinion of Chief Justice GREEN, in Gough v. Bell 22 N. J. 441; Bell v. Gough, 23 N. J. 624; Commonwealth v. Vincent, 108 Mass. 441; Opinion by GRAY, J.; Parker v. Cutler Mill Dam Co., 20 Me. 353; Nudd v. Hobbs, 17 N, H. 524.

4 Waterman v. Johnson, 13 Pick. 261; Mott v. Mott, 68 N. Y. 246.

5 Alden v. Murdoch, 13 Mass. 256; Pettingill v. Porter, 3 Allen, 349; Tyler v. Hammond, 11 Pick. 193; Smith

Possession of Lands. Land, the ownership of which has passed from the sovereignty, in contemplation of law is always in the possession of some one. The possession may be rightful or wrongful, and if rightful, it may be by one who has only a temporary interest therein, as tenant for years or at will, or it may be by one having a freehold estate. Where one has actual possession, he does not lose it by temporary absences for pleasure or business, but the possession will be kept for him by servants, if any remain, or by his domestic animals or his goods. If one occupies part of a known description of land, but has color of title to the whole and claims the whole, he has constructively possession of the whole provided no one else is occupying any portion thereof. If there is no pedis possessio of any part of the land, the real owner has constructive possession, and may sue an intruder for the disturbance of his possessions, and will recover if he makes out his title.' If possession has been taken from the owner, his method of recovering it will depend upon the circumstances. At the common law he might have retaken it by force, but as this often led to serious breaches of the public peace *the Statute, 5 Rich. II., C. 7, was enacted, [*323] which declared that "none henceforth make entry into any lands and tenements but in cases where entry is given by the law, and in that case not with strong hand, nor with multitude of people, but only in a peaceable and easy manner." This

. Slocomb, 9 Gray, 36; Howard v. Ingersoll, 13 How. 381; Hughes v. Providence, &c., R. R. Co., 2 R. I. 508; Hoboken Land Co. v. Kerrigan, 31 N. J. 13; Morrow v. Willard, 30 Vt. 118; Starr v. Child, 5 Denio, 599; Halsey v. McCormick, 13 N. Y. 296; Nickerson v. Crawford, 16 Me. 245; Rockwell. Baldwin, 53 III. 19; Grand Rapids, &c., R. R. Co. v. Heisel, 38 Mich. 62.

Achey v. Hull, 7 Mich 423; Dobbs . Gullidge, 4 Dev. & Bat. 68; Barber v. Trustees of Schools, 51 Ill. 396. Se Collins . Benbury, 5 Ired. 118; Ruggles v. Sands, 40 Mich. 559; Moore . Douglas, 14 W. Va. 708; Parker v. Wallis, 60 Md. 15. The claim must be made before the trespass is com

mitted. Hosford . Whitcomb, 56 Vt. 651. In Wisconsin, where an injury is to the possession and not a permanent one to the freehold, plaintiff may maintain an action if he shows good title to a part and possession of the whole. Boyington v. Squires, 37 N. W. Rep. 227 Otherwise, if the injury is to the freehold and he fails to show good title. Winchester v. Stevens' Point, 58 Wis. 350; Reed v. Chicago, &c. Co., 37 N. W. Rep. 225.

2 Miller v. Miller, 41 Md. 623; Griffin v. Creppin, 60 Me. 270; Tolles v. Duncombe, 34 Mich. 101; Appleby v. Qbert, 1 Harr. 336; Gunsolus v. Lormer, 54 Wis. 630; Storrs v. Feick, 24 W. Va. 606.

statute has been re-enacted in the several American States, or recognized as a part of the American common law. If, notwithstanding its prohibition, one shall forcibly seize possession of lands, or if, after having in any manner unlawfully obtained possession, he shall forcibly detain the same against the owner, summary statutory remedies are given by means of which the party forcibly expelled or wrongfully excluded by force, may regain possession. And title is no defense to a complaint for a forcible entry.

There are several reasons why the law cannot suffer a forcible entry upon a peaceable possession, even though it be in the assertion of a valid title against a mere intruder. First. Whoever assumes to make such an entry makes himself judge in his own cause, and enforces his own judgment. Second. He does this by the employment of force against a peaceable party. Third. As the other party must have an equal right to judge in his own cause, and to employ force in giving effect to his judgment, a breach of the public peace would be invited, and any wrong, if redressed at all, would be redressed at the cost of a public disturbance, and perhaps of serious bodily injury to the parties.' The good of the State could not tolerate such proceedings, and therefore when forcible possession is taken, the law compels a restoration, and refuses to inquire into the title until it is made. But if one lawfully entitled to possession can make peaceable entry, even while another is in occupation, the entry, in contemplation of law, restores to him complete possession, and it is not unlawful for him to resort to such means, short of the employ

Newton. Harland, 1 M. & Gr. 644; Hillary v. Gay, 6 C. & P. 284. See Mugford v. Richardson, 6 Allen, 76; Gault . Jenkins, 12 Wend. 488; Mussey . Scott, 32 Vt. 82; Judy v. Citizen, 101 Ind. 18; Rawson v. Putnam, 128 Mass. 552; Sinclair . Stanley, 7 S. W. Rep. 511 (Tex.); Coonradt v. Campbell, 25 Kan. 227; Spiers v. Duane, 54 Cal. 176. There may be a forcible entry or detainer without use of personal violence. Steinlein o. Halstead, 42 Wis. 422; Ely v. Yore, 71 Cal. 130. But, see Fort Dearborn

3

Lodge v. Klein, 115 Ill. 177; Johnson v. West, 41 Ark. 535. A forcible entry and detainer statute covers the forcible seizure of a railroad. Iron Mt., &c., Co. v. Johnson, 119 U. S. 608.

2 A mere right to possession can never justify the use of force in order to regain it. Parsons v. Brown, 15 Barb. 590; Newkirk . Sabler, 9 Barb. 652; State v. Yeaton, 53 Me. 125; Newcombe . Irwin, 55 Mich. 620.

[blocks in formation]
« PreviousContinue »