each were accompanied, together with the leading case of Gibbons v. Ogden,1 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. Sunday Laws. 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.2 There can no longer be any question, if any there ever was, that such laws may be supported as regulations of police.3 Law of the Road. 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 19 Wheat. 1. And see Gilman v. forbidding ordinary employments on Philadelphia, 3 Wall. 713. 2 Lindenmuller v. People, 33 Barb. 548. Forbidding Sunday transportation of freight is not void though incidentally affecting inter-state traffic. State v. Railroad Co., 24 W. Va. 783. And see Ex parte Andrews, 18 Cal. 678; Ex parte Bird, 19 Cal. 130; ante, p. 595 and notes. 8 Specht v. Commonwealth, 8 Pa. St. 312; Commonwealth v. Jeandelle, 2 Grant, 506; City Council". Benjamin, 2 Strob. 508; State v. Ambs, 20 Mo. 214; St. Louis v. Cafferata, 24 Mo. 94; Kurtz v. People, 33 Mich. 279; Voglesong v. State, 9 Ind. 112; Schlict v. State, 31 Ind. 246; Foltz v. State, 33 Ind. 215; Shover v. State, 10 Ark. 259; Bloom v. Richards, 2 Ohio St. 387; Lindenmuller v. People, 33 Barb. 548; Ex parte Andrews, 18 Cal. 678; Ex parte Bird, 19 Cal. 130; Hudson v. Geary, 4 R. I. 485; Frolickstein v. Mobile, 40 Ala. 725; State v. Barker, 18 Vt. 195; Commonwealth v. Colton, 8 Gray, 488; Commonwealth v. Hyneman, 101 Mass. 30; Commonwealth v. Has, 122 Mass. 40; Augusta, &c. R. R. Co. v. Renz, 55 Ga. 126. The statutes Sunday make exceptions for cases of necessity and charity. The execution of a will is not "work, labor, or business," and therefore not forbidden by the Sunday laws. Bennet v. Brooks, 9 Allen, 118; George v. George, 47 N. H. 27. As to what are works of necessity or charity, see Stanton v. Metropolitan R. R. Co., 14 Allen, 485; McClary v. Lowell, 44 Vt. 116; Logan v. Matthews, 6 Pa. St. 417; Connolly v. Boston, 117 Mass. 64; s. c. 19 Am. Rep. 396; Yonoski v. State (Ind.), 5 Am. & Eng. R. R. Cas. 40, and note p. 42, where the authorities are collected; Commonwealth v. Louisville, &c. R. R. Co., 80 Ky. 291; Stone v. Graves, 145 Mass. 353; Com. v. Marzynski, 149 Mass. 68; Ungericht v. State, 119 Ind. 319; Hennersdorf v. State, 25 Tex. App. 597; Nelson v. State, Id. 599; Handy v. St. Paul, &c. Pub. Co., 42 N. W. Rep. 872 (Minn.); Splane v. Com., 12 Atl. Rep. 431 (Pa.). 4 As to the right to change the grade of a street from time to time without liability to parties incidentally injured, see ante, p. 251. 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.2 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 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.* Navigable Waters. 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 1 Commonwealth v. Worcester, 3 Pick. 462; Commonwealth v. Stodder, 2 Cush. 562; Day v. Green, 4 Cush. 433; People v. Jenkins, 1 Hill, 469; People v. Roe, 1 Hill, 470; Washington v. Nashville, 1 Swan, 177; State v. Foley, 31 Iowa, 527. 2 McKee v. McKee, 8 B. Monr. 433; Municipality v. Blanc, 1 La. Ann. 385; Whitfield v. Longest, 6 Ired. 268; Gosselink v. Campbell, 4 Iowa, 296; Roberts v. Ogle, 30 Ill. 459; Commonwealth v. Curtis, 9 Allen, 266; Brophy v. Hyatt, 10 Col. 223. This applies to beasts of non-residents. Mayor of Cartersville v. Lanham, 67 Ga. 753; Rose v. Hardie, 98 N. C. 44. The payment of a fine by the owner cannot be required as a condition of their release, under general charter power of this kind. Wilcox ». Hemming, 58 Wis. 144. 8 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; Washington v. Mayor, &c. of Nashville, 1 Swan, 177; Mayor, &c. v. Maberry, 6 Humph. 368, Woodbridge v. Detroit, 8 Mich. 274, 309, per Christiancy, J.; Matter of Dorrance St., 4 R. I. 230, Deblois Barker, 4 R. I. 445; Hart v. Brooklyn, 36 Barb. 226, Sands v Richmond, 31 Gratt. 571; s. c 31 Am Rep 742, Palmer Way, 6 Col. 106. And see Macon v. Patty, 57 Miss. 378; s. c. 34 Am. Rep. 451; Smith v. Kingston, 120 Pa. St. 357. In Minnesota this right is exercised under the taxing power. Hennepin Co. v. Bartleson, 37 Minn. 343. In Arkansas the duty may be enforced by a fine. James v. Pine Bluff, 49 Ark. 199. Compare Port Huron v. Jenkinson, 43 N. W. Rep. 923 (Mich.). In Pennsylvania it has been held competent to require the owners of city lots, in front of which sewers are constructed, to pay the expense thereof in proportion to the street front. Philadelphia v. Tryon, 35 Pa. St. 401; Stroud v. Philadelphia, 61 Pa. St. 255. And see Boston v. Shaw, 1 Met. 130; Hildreth v. Lowell, 11 Gray, 345; Cone v. Hartford, 28 Conn. 363; State v. Jersey City, 5 Dutch. 441. 4 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. Also Dillon, Mun. Corp. § 637; Cooley on Taxation, 398. In Illinois it seems not to be competent to compel the building of sidewalks or the keeping of them free of snow by the owners of abutting lots under the police power. Ottawa v. Spencer, 40 Ill. 211; Gridley v. Bloomington, 88 Ill. 554, s. c. 30 Am Rep 566. 5 Lorman v. Benson, 8 Mich. 18; Morgan v. King, 18 Barb. 277. there has beer 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 to market the products of the mines, of the forests, or of the tillage of the country through which they flow.1 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 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 well-settled 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 1 Brown v. Chadbourne, 31 Me. 9; Knox v. Chaloner, 42 Me. 150; Lancey v. Clifford, 54 Me. 487; Gerrish v. Brown, 51 Me. 256; Scott v. Willson, 3 N. H. 321; 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. Sanborne, 2 Mich. 519; Lorman v. Benson, 8 Mich. 18; Depew v. Board of Commissioners, &c., 5 Ind. 8; Board of Commissioners v. Pidge, 5 Ind. 13; Stuart v. Clark, 2 Swan, 9; Elder v. Barnes, 6 Humph. 358; Dalrymple v. Mead, 1 Grant's Cases, 197; Commissioners of Homochitto River v. Withers, 29 Miss. 21; Rhodes v. Otis, 33 Ala. 578; Walker v. Allen, 72 Ala. 456; Little Rock, M. &c. Ry. Co. v. Brooks, 39 Ark. 403; McManus v. Carmichael, 3 Iowa, 1; Weise v. Smith, 3 Oreg. 445; s. c. 8 Am. Rep. 621. 2 Morgan . King, 18 Barb 288; Moore v. Sanborne, 2 Mich. 519; Brown v. Chadbourne, 31 Me. 9; Treat v. Lord, 42 Me. 552; Weise r. Smith, 3 Oreg. 445; s. c. 8 Am. Rep. 621; Bucki v. Cone, 6 Sou. Rep. 160 (Fla.); Gaston v. Mace, 10 S E. Rep 60 (W. Va.) Compare Hubbard v. Bell, 54 Ill. 110; Haines v. Hall, 20 Pac. Rep. 831 (Oreg.). 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.1 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.2 The question what is a navigable stream would seem to be a mixed question of law and fact;3 and though it is said that the legislature of the State may determine whether a stream shall be considered a public highway or not, 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.5 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; or having exercised it, the State law does 1 Wadsworth's Adm'r v. Smith, 11 Me. McCulloch, 10 Mass. 70; State v. Moffett, 278; Ward. Warner, 8 Mich. 508. 1 Greene (Iowa), 247; Selman v. Wolfe, 27 Tex. 68; Larson v. Furlong, 63 Wis. 323. 2 Commonwealth v. Charlestown, 1 Pick. 180; Kean v. Stetson, 5 Pick. 492; Arnold v. Mundy, 6 N. J. 1; Bird v. Smith, 8 Watts, 434 One cannot acquire a prescriptive right to impede floatage. Collins v. Howard, 18 Atl. Rep. 794 (N. H.). 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, has been held liable to an action for the injury. French v. Camp, 18 Me. 433. But this rule is now modified, at least as to the Penobscot at Bangor, upon the ground that the right of ice harvesting is at such a place superior to that of travel. Wood man v. Pitman, 79 Me. 456. An obstruction to a navigable stream is a nuisance which any one having occasion to use it may abate. Inhabitants of Arundel v. 8 See Treat r. Lord, 42 Me. 552; Weise v. Smith, 3 Oreg. 445; s. c. 8 Am. Rep. 621; Olive v. State, 86 Ala. 88. 4 Glover v. Powell, 10 N. J. Eq. 211; American River Water Co. v. Amsden, 6 Cal. 443; Baker v. Lewis, 33 Pa. St. 301. 6 Morgan v. King, 18 Barb. 284; s. c. 35 N. Y. 454 6 Willson 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, and 18 How. 421. By the or 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: 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,1 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 navigation, 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.2 dinance of 1787 and the enabling acts ter, and abating any erections that may have been made, and preventing any others from being made except in conformity with such regulations as it may impose." 1 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. This subject is further considered in Gilman v. Philadelphia, 3 Wall. 713; and in The Daniel Ball, 10 Wall. 557, in which the meaning of the term "navigable waters of the United States" is defined. And see Craig Kline, 65 Pa. St. 399; s. c. 3 Am. Rep. 636. 2 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. And see McReynolds v. Smallhouse, 8 Bush, 447. It is no infraction of the public right for a city to permit individuals to put up sheds upon its piers, thereby excluding the general public, in furtherance of commerce. People v. Baltimore, &c. R. R. Co., 117 N. Y. 150. |