Collins & A. v. Howard & A. ( 1889 )

A public easement for floating logs exists in a stream which is capable of being so used. The easement is not founded upon usage, custom, or prescription, nor is it derived from previous enjoyment, but it depends upon the capacity of the stream for trade or business. It exists when the stream is capable of being generally and commonly used for the purposes of commerce, for the floating of vessels, boats, rafts, or logs. Carter v. Thurston, 58 N.H. 104; Thompson v. Androscoggin River Improvement Co.,54 N.H. 545; Brown v. Chadbourne, 31 Me. 9; Ang. Wat., ss. 535-541.

A riparian owner cannot acquire a prescriptive right against the public to impede or in any way injure navigation or any other public easement in any of the matters of the state. G. L., c. 135, s. 19; State v. Franklin Falls Co., 49 N.H. 240.

The general doctrine in reference to the use of public streams as public highways is, that each person has an equal right to their reasonable use. But what constitutes reasonable use depends upon the circumstances of each particular case. If, upon evidence already introduced and to be introduced on a further hearing, the fact shall be established that this stream is capable of being used for floating logs, the plaintiffs' right to maintain their dams and mills must be enjoyed with reference to the right of the defendants to float their logs down the stream.

Exceptions overruled.

CARPENTER, J., did not sit: the others concurred.