Connecticut River Lumber Co. v. Olcott Falls Co.

In the original bill the lumber company were sole plaintiffs. Their complaint is, that they annually exercise the public right of floating logs down Connecticut river, and that the defendants have obstructed the way by a dam at Olcott falls. The prayer is for a decree restraining the defendants from maintaining the dam without suitable sluice-ways; for a provision in the decree determining the dimensions and character of the sluice-ways; and for general relief. The defendants demurred on the ground that the alleged grievance is a public nuisance, for the abatement of which a suit cannot be maintained by a private person. This objection has been avoided by an amendment joining the attorney-general as plaintiff, and the demurrer is overruled without considering the question whether the bill can be maintained by the lumber company. Dover v. Portsmouth Bridge, 17 N.H. 200, 215, Griffin v. Sanbornton, 44 N.H. 246; Smith v. Putnam, 62 N.H. 369, 373; Milarkey v. Foster, 6 Oreg. 378, and notes in 25 Am. Rep. 533; State v. Wheeling Bridge, 13 How. 518, 561, 562, 564, 566, 567; Knickerbocker Ice Co. v. Shultz, 116 N.Y. 382; Steamboat Co. v. Railroad, 30 S.C. 539; Gould Wat., ss. 121-127, 547; Wood Nuis., ss. 615-701, 819. If that question becomes material in the progress of the case, it will be examined when its decision is necessary. The mode of trial on a bill in equity for the abatement of a nuisance is not an open question. State v. Saunders, 66 N.H.

"The channel of a public navigable river is properly described as a public highway." Colchester v. Brooke, 7 A. E. N. S. 339, 373. "A stream may be a public highway for flotage when it is capable, In its ordinary and natural stage in the seasons of high water, of valuable public use. . . . It is a public highway by nature, but one which is such only periodically, and while the natural condition permits a public use. . . . The public right is measured by the capacity of the stream for valuable public use in its natural condition." Thunder Bay Booming Co. v. Speechly, 31 Mich. 336,343-345; Gaston v. Mace, 33 W. Va. 14; Koopman v. Blodgett, 70 Mich. 610; State v. Gilmanton, 14 N.H. 467, 479; Carter v. Thurston, 58 N.H. 104; Collins v. Howard, 65 N.H. 190; Gould Wat., ss. 54, 86, 107-112; Ang. High., ss. 53-72. The Connecticut river is a natural highway for floating logs. Thompson v. Androscoggin Co., 54 N.H. 545, 548, 549; Conn. R. L. Co. v. Columbia, 62 N.H. 286, 287.

At Olcott falls the public has a right of passage for logs as free and convenient as would be afforded by the river in its natural condition, unless the highway has been wholly or partially discontinued by law. The riparian proprietors, incorporated or unincorporated, in the exercise of their private rights, may change the natural condition of the stream, so far as changes are possible without an infringement of the public right. The riparian title, including a right of altering the channel and using the water, does not include a right of total or partial discontinuance of the changeable way of which the capacity of the stream in its natural condition is the measure. "Any person owning the land upon both sides of such a river can maintain a ferry or bridge or dam for his own use, provided he does it so as not to interfere with the public easement, without any authority from the legislature, and even in defiance of a legislative prohibition. In such case he would but be making a proper use of his own property. . . . What rights did the legislature give the plaintiff by its act of incorporation? It made it a corporation, and gave it the corporate right to build its bridge. For that purpose only a corporation was not needed, nor was legislative sanction needed. But being authorized by the legislature to build the bridge, it could not be complained of for any necessary interference with the public easement which was under legislative control; for that which is authorized by law cannot be a public nuisance. . . . The legislature did not empower it to interfere with the stream, except so far as it was necessary for the building and maintenance of its bridge." Chenango Bridge Co. v. Paige, 83 N.Y. 178,185, 186; Groat v. Moak, 94 N.Y. 115, 128; Sewall's Falls Bridge v. Fisk,23 N.H. 171, 177; Hooksett v. Amoskeag Co., 44 N.H. 105, 110; Eastman v. Amoskeag Co., 44 N.H. 143, 160; Com. v. Alger, 7 Cush. 53, 99; Ang. High., ss. 237-241.

"The statute gives a general authority to the sessions to lay out highways, but the statute must have a reasonable construction. This authority, therefore, cannot be extended to the laying out of a highway over a navigable river, whether the water be flesh or salt, so that the river may be obstructed by a bridge. A navigable river is, of common right, a public highway; and a general authority to lay out a new highway must not be so extended as to give a power to obstruct an open highway already in the use of the public." Com. v. Coombs, 2 Mass. 489, 492; Arundel v. M'Culloch, 10 Mass. 70; Com. v. Charlestown, 1 Pick. 180. In Connecticut, under a general power to lay out highways, a road may be laid across navigable water where a suitable bridge will not be a serious obstruction of navigation. Groton v. Hurlburt, 22 Conn. 178, 186-189; Brown v. Preston,38 Conn. 219. Such cases are consistent with the rule that authority to lay out a new highway does not warrant an unnecessary obstruction of an old one. A toll gate of a turnpike unnecessarily obstructing a free road is a public nuisance. Wales v. Stetson, 2 Mass. 143. A franchise to build a railroad between certain points does not include a right to build it unnecessarily on or along a street. Springfield v. C. R. R. Co., 4 Cush. 63; Com'rs v. Holyoke W. P. Co., 104 Mass. 446, 449.

The charter of the Franklin Falls Co. authorizes them to establish and carry on various manufactures "in the improvement of the water-power of the Winnipiseogee river." Laws 1863, c. 2797. In State v. Franklin Falls Co.,49 N.H. 240, it was held that the defendants could not lawfully maintain a dam that would prevent the passage of migratory fish from the sea to the lake. Their right to carry on manufacturing business "in the improvement of the water-power" included a right to maintain such a dam and make such a diversion of the water from the natural channel as would not infringe any public right of way. Sometimes the water was "not more than sufficient to carry the machinery;" and the company's works could be enlarged to such an extent that no water would ordinarily run over the dam. But the requirements of their business were not held to be material. They could build a stairway for the ascent of fish, as they could build a sluice-way for the descent of logs. The necessity of building a dam and diverting the water to their wheels was not deemed a necessity of discontinuing the public right of a fishway. The right of riparian owners to improve and use the power of the river, with or without a charter, was undisputed; but it was not suggested by the defendants that their charter discontinued the right of way, or authorized its discontinuance; and such a construction not being claimed, the legal ground on which it must be rejected is not stated in the decision.

Whether a river is a highway for fish or for logs, or for both, a grant of the advantages of a corporate organization to persons engaged in the improvement and use of the water-power for manufacturing purposes does not show that a total or partial discontinuance of the way was intended by the legislature. Com. v. Essex Co., 13 Gray 239, 248; Com'rs v. H. W. P. Co.,101 Mass. 446, 450. It merely shows that the franchise, asked by the grantees and given by the state, is a corporate capacity to exercise common-law rights of riparian owners. A grant to these defendants of a right to do, as an incorporated body, what they could do as unincorporated partners, was necessary because "corporations are artificial persons, created for specific purposes, and invested with such and only such powers as are conferred by law. While natural persons may do with themselves and their property whatever is not forbidden, artificial persons cannot rightfully do anything that is not expressly or by necessary implication permitted by the law of their being." Pittsburgh R. Co. v. Lyon, 123 Pa. St. 140, 150; Case v. Kelly, 133 U.S. 21. An act authorizing certain persons merely to form themselves into a corporation would be useless. Without an authority conferred by statute upon the Olcott Falls Co. to do something, they could do nothing. Pierce v. Emery, 32 N.H. 484, 512. In addition to a mere act of incorporation, a grant of power was indispensable to enable them, as a corporation, to engage in the improvement and manufacturing use of Olcott falls. Without such a grant, they would be restrained by injunction, at the suit of one of the members, from carrying on that business; and on quo warranto brought by the state, their unanimous usurpation of corporate franchises would be suppressed. They are a corporation for a manufacturing purpose, and can purchase and hold a limited amount of real estate, improve the water-power, make and maintain, on and across the river at the falls, all such works as are necessary and proper to accomplish the object of their incorporation, and carry on such kinds of manufacturing business as they choose. Laws 1848, c. 674; Laws 1881, c. 183. In the grant of powers without which they could not lawfully acquire or lawfully exercise the private riparian rights that are subject to the public easement, there is no incidental relinquishment or diminution of the easement.

The language of such a grant would be the same if the river were not a highway. Of itself alone, it has no tendency to prove that the subject of highway discontinuance was in the mind of the legislature. If the question of discontinuance is presented to that body and decided in the affirmative, there will naturally be some clear and positive evidence of the decision in the statute. It can not be assumed that an exercise of the discontinuing power is concealed, either accidentally or designedly, under an ordinary grant of corporate capacities, expressed in terms equally appropriate whether the river is or is not a highway. The acts from which the defendants derive their powers contain no express discontinuance of the Connecticut easement, and no express grant of power to discontinue it either wholly or partially. Their incidental power of discontinuance cannot be implied from anything less than necessity; and the case shows no ground for the implication of a discontinuance, or a grant of discontinuing power. In the method of finding the fact of legislative intention by weighing competent evidence, and not by applying technical rules (Boody v. Watson,64 N.H. 162, 189), there is no occasion to resort to the authorities that employ a strict rule to confine business corporations to the privileges plainly given them in their charters. Under that rule, the defendants' claim that the public right has been affected by their acts of incorporation could not be sustained. Charles River Bridge v. Warren Bridge, 11 Pet. 420, 514-548; Jersey City v. Hudson, 13 N. J. Eq. 420, 425; Selman v. Wolfe, 27 Tex. 68; Syracuse W. co. v. Syracuse, 116 N.Y. 167,178; Sedg. Con. 291-296.

Under authority given by statute, an owner of a lot situated on the margin of the tidewater of East River extended the dry land into the water. Before the extension, a street had been laid out over the lot to the river. It was held that the filling of the river by the landowner "carried with it a necessary and legal extension of the street over the new made land" to the edge of the water. The ground of decision was, that the legislature intended to confer a privilege on the owner of the land, but not to destroy the right of the public to reach the river through the street; that the act should not "be so construed as to work a public mischief unless required by words of the most explicit and unequivocal import;" that the language of the act did not necessarily or naturally import that the right of passage from the street to the river should be destroyed by filling up the river; that "in an act designed chiefly, if not exclusively, to subserve individual interests, the words used must leave no doubt that the legislature intended to annihilate or abridge an important public right, before a court should put such a construction upon it as would have that effect;" and that public rights are not to be destroyed by equivocal words or provisions. People v. Lambier, 5 Den. 9, 15-17. Whether the extension of the street was rightly or wrongly implied, it illustrates the tendency of the authorities to employ the doctrine of necessary implication in the maintenance rather than in the abridgment of public rights. As the statutes do not show a legislative assent to a total or partial discontinuance of the Connecticut highway, an assent implied from necessity, if it can be shown by extraneous evidence in some cases, must, to say the least, be satisfactorily proved. And as the facts of a case of necessity are not alleged in pleading, there is no issue on which such evidence is admissible.

In the answer, the defendants say that the "falls, when the river ran in its natural course there, were impassable in low stages of the water by logs;" "that the defendants' works, by ponding back the water, entirely cover and flow out a bad and rocky fall above, where otherwise logs would lodge upon and among the rocks forming great jams, requiring great labor and expense to break, — all which is saved to them in the way described;" that the defendants did, "at very large expense, construct in said dam, in the best place for the passage of logs, a sluice-way of ample and convenient size and construction, being eighteen feet wide and four inches deep at the top of the dam, and fitted the same with an apron of plank thoroughly covered with iron plates, so designed and located as to conduct logs safely into the deep-water channel below; and in the iron facing on the top of their dam, throughout its entire length, made holes for the insertion of iron pins to hold flashboards of any width desired, and at each side of said sluice-way, at the top of the dam, they inserted ring-bolts for the attachment of booms to guide logs into said sluice-way; and so it is by means of the appliances thus provided in the construction of their dam and sluice-way, all the water flowing in the river may, at any time, with trifling labor and expense, be turned, and compelled to pass through the sluice-way, whereby logs will be easily and conveniently floated over the dam and falls, and passed into the deep water below;" and "that the works of the defendants, in their present condition, greatly facilitate rather than impede the passage of logs over said falls, and diminish rather than increase the expense thereof."

By these averments, the defendants deny the necessity of constructing the dam in such a manner as to abridge the public right of log flotation. On this disclaimer it is assumed that the dam with a sluice (including an apron) of proper form, size, and location, and other suitable appliances for turning logs and the whole river through the sluice, would not injure, but would improve, the way for the use made of it by the lumber company in June of each year. And as the benefit that might be derived from a manufacturing diversion and use of the water is no more a necessity of highway discontinuance in this case than it was in State v. Franklin Falls Co., there seems to be no occasion for serious controversy.

If the consent of the state that "highways may be laid out across any stream or body of water" (G. L., c. 67, s. 10) had been unqualified, it might have been claimed that it included authority to impair the right of navigation. For that reason the legislature added the prohibition "but no road or bridge shall be so laid out if the reasonable and proper construction thereof may prevent the use of such waters for navigation for boats or rafts, or for running timber." The charters of the Concord, the Northern, and the Boston, Concord Montreal railroads, authorizing the erection of bridges across certain rivers, contain a proviso that the bridges shall be so constructed as not unnecessarily to impede navigation. Act of June 27, 1835, s. 15; Laws 1844, c. 190, s. 2; Laws 1844, c. 191, s. 2. Such provisos may be useful for the purpose of avoiding a question of interpretation. They would be serious defects, if they introduced the erroneous construction that without them, unnecessary obstruction of highways would be authorized by the general law and by ordinary acts of incorporation.

The act of 1807, incorporating the White River Falls Company, contains a proviso that nothing in that act shall authorize the company "to erect any dam . . . so as to prevent the free passage of lumber down Connecticut river as heretofore used and enjoyed." It is alleged in the bill that the defendants derive their powers from that act, and from the acts of 1848 and 1881. In their answer the defendants say they constructed their works in the exercise of powers granted by the acts of 1848 and 1881; but they do not deny or explain the fact, well alleged in the bill, that they derive their corporate powers from the act of 1807, as well as the acts of 1848 and 1881. "All facts well alleged in the bill, and not denied or explained in the answer, will be held to be admitted." 8th Chancery Rule, 56 N.H. 605.

There was a special reason for reserving the right of free passage in the act of 1807. That act incorporates a canal company, and gives them power to improve the navigation at the falls by a locked canal, and to take toll for the use of the artificial way. But, for the benefit of all who should prefer a free passage in the old way to the use of a canal on payment of toll, the right of free passage in the old way is reserved. It is recited in the preamble that the "erecting locks and cutting canals on White River falls [now called Olcott falls] and Connecticut river, so that the same shall be navigable for boats for the transportation of lumber, goods, wares, and merchandise, would be of great public utility," and that "Mills Olcott, of Hanover, has petitioned the general court for the exclusive privilege of locking the same." Thereupon it is "enacted that the said Mills Olcott and his associates, their heirs and assigns forever, be invested with the exclusive privilege of cutting canals and locking said falls, and rendering said Connecticut river navigable for boats and lumber, from the head of said falls at the upper bar, so called, to the foot of the falls at the lower bar of the same, commonly called Phelps bar." It was apparently feared that under their exclusive powers the canal company would claim a right to levy toll upon all lumber passing down the river at that point, or to make such alterations in the channel as would compel lumbermen to resort to the canal, for the use of which the company is entitled to a toll. The avoidance of all controversy on this subject is the apparent purpose of the reservation of the public right to a free passage of lumber in the old way. From the abundant caution exercised in the insertion of a proviso to prevent all possible contention between the canal company and the lumbermen on the question of highway discontinuance, it does not follow that the old highway for logs would have been discontinued if it had not been expressly reserved. However that may be, the reservation in the charter of the canal company has no tendency to show that the subsequent grants of corporate power for manufacturing purposes are a total or a partial discontinuance of the old way. Under those grants, which did not authorize the grantees to exact toll, there was no reason to anticipate a claim of toll, and therefore no occasion for such a reservation of the right of free passage as was made in the grant of canal powers.

The act of 1848, c. 674, s. 3, contains the proviso that "this grant shall not be held or construed to impair any rights, powers, and privileges heretofore granted by the legislature of this state within the limits aforesaid." The same section shows that the limits are the "falls from the head thereof at the upper bar to the foot of the same at the Phelps bar, so called." The fourth section of the act is, — "Said corporation is hereby authorized and empowered to purchase, hold, and enjoy all the corporate and other rights, powers, and privileges heretofore granted and now enjoyed within the limits of this grant, subject to all the duties and liabilities now legally binding on said corporate rights, powers, and privileges. Upon the proviso saving the powers granted by the charter of 1807, the grant of authority to the defendants to purchase, hold, and enjoy those powers, subject to all the duties and liabilities by which they continued to be restricted in 1848, and the admission of the defendants, in pleading, that their powers are derived from the act of 1807 as well as the acts of 1818 and 1881, the conclusion seems to be inevitable that the defendants are holders of corporate power granted by the charter of 1807, and that this power is subject to the reservation of the public right of free passage of lumber down the river as used and enjoyed before 1807. In the absence of evidence there is no presumption of law or fact that the natural highway was altered before 1807, and until evidence of a change is introduced the continuance of a natural state of things may be inferred.

The defendants contend that the phrase "subject to all the duties and liabilities now legally binding on said corporate rights, powers, and privileges" does not include the inability "to erect any dam . . . . so as to prevent the free passage of lumber down Connecticut river as heretofore used and enjoyed." They argue that "all the duties and liabilities" thus retained and perpetuated are obligations of an affirmative nature, — to permit logs to pass through the canal on payment of toll, to pay debts and the like, — and not restrictions of authority. But it would be a violent construction to draw a line between the affirmative and the negative duties and liabilities of the canal company, and hold that by "all the duties and liabilities now legally binding on said corporate rights, powers, and privileges," only those of an affirmative nature were designated. It is not probable that the legislature employed that inferential distinction as an implied release of the canal company's grantee from one of that company's incapacities, and an implied grant of power to discontinue the highway.

Whatever else the proviso in the act of 1848 may mean, it must be held to express the legislative will that the defendants, if they bought the powers of the canal company, would hold them subject to the proviso of 1807, and that, as a canal company, they should erect no dam so as "to prevent the free passage of lumber down Connecticut river as . . . used and enjoyed" before the grant of the canal company's charter. The words "subject to all the duties and liabilities now legally binding on said corporate rights, powers, and privileges," do not specially refer to that company's duty of allowing a free passage of lumber, but evince a general resolve to annul none of the limitations of their powers; and among those limitations is the public right of free passage for lumber down the river. By purchasing the old company's franchises the new company acquired no authority to erect a dam that would infringe that right. This lack of authority is among the incapacities unnecessarily reenacted by the fourth section of the charter of 1848. The defendants could not obtain, by purchase from the canal company, a power of highway discontinuance that had not been granted to that company.

As a canal company, the defendants can build a dam that will turn the whole stream into a canal for the use of which they are entitled to toll; but if a lumberman chooses a free log-way which they choose not to give him in the canal, he is entitled to one over, through, or around the dam, as good as he would have in the old undammed channel, at the time he is ready to use it. As a manufacturing company, the defendants can also turn the river to their wheels through a flume. How much of it shall run through the canal for a transportation purpose, how much through the flume for a manufacturing purpose, and how much over the dam, is for them to decide, with this qualification, — their control is subject to any public right of way that the legislature have not relinquished.

On the question whether any such right has been released by grants of manufacturing powers, the intention of the legislature can be seen in a supposed case, in which the defendants use a canal as a canal company, and a flume as a manufacturing company. At the lower end of the flume they have a saw-mill, in which one man is employed. In June a lumberman arrives at the falls with a drive. There is water enough to carry his logs over the falls in the natural channel if there were no dam there. All the water, turned into the canal, would afford a more convenient passage. All the water, turned into the flume, would work the saw-mill. The whole of it is necessary for either of the three purposes to which it may be applied. The flume gate is open, and the mill in operation. There is no water in the canal, and none running over the dam. The lumberman demands a passage through the canal and tenders the toll. His demand must be complied with. The canal, like a turnpike or a railroad, is a highway. As a canal company, the defendants have not been relieved from the highway duties and liabilities of their predecessors. The canal gate must be opened and the flume gate must be shut, although for a time the mill will be stopped, and its operator thrown out of employment.

As soon as the defendants have performed this canal duty, another lumberman arrives and demands a passage for his logs without payment of toll. Whether the defendants furnish it in the canal, or through a sluice over the dam, the flume gate remains shut, and the mill and its operator remain idle, while the highway demand of the second lumberman is complied with. Whether the number of his logs is ten or ten million, whether their passage stops the mill an hour or a month and whether the number of the mill operatives is one or one thousand, the lumberman is entitled to a free way as good as he would have if no dam had been built and no water had been diverted from the ancient channel. There is nothing in the statute to indicate an intention that the public right shall be restricted to the passage of a fixed number or a reasonable number of logs, or shall depend upon the extent of the defendants' manufacturing industry and the number of persons engaged therein. If the legislature had meant that the public right might be indefinitely impaired, as it would be if a judicial tribunal were authorized to decide each case upon the comparative importance of the logging business of the lumbermen and the manufacturing business of the defendants, it is not probable that they would have been silent on that subject. The reduction of the highway from one measured by the power of the undiverted stream to carry logs over the unobstructed falls, to one measured in each particular case, or, in this case, by an appraisal of the logging and manufacturing interests, is a piece of legislation that cannot be inferred from the fact that the statutes contain no allusion to so extraordinary an alteration.

On the question whether a wharf in the port of Newcastle is a nuisance, evidence is not admissible to show that the public inconvenience caused by its obstruction of the Tyne is balanced by the public benefit derived from the delivery of coal in the London market in a better condition and at a reduced price in consequence of the shipping facilities afforded by the wharf. The contrary doctrine, maintained by a majority of the court in King v. Russell, 6 B. C. 566, 569, 570, 590, 591, 693, 594, 597, 598, and by a minority in State v. Wheeling Bridge, 13 How. 518, 691, 605, has not prevailed. The true view was presented by counsel in Rex v. Ward, 4 A. E. 384, 394. "Nor is the principle a just one, that a nuisance in one place may be compensated by any degree of benefit conferred in another; as if a gasometer created a nuisance in Southwark, and it was answered that the gas-lights connected with it were beneficial to a street in London. No comparison can be instituted between accommodation to one set of persons and loss of rights to another." The necessity of slaughter-houses in this country does not legalize the diffusion of an intolerable stench from a structure of that kind in the centre of Manchester. The violation of a public right enjoyed by a portion of the community is not justified by offsetting an advantage accruing to others. The state's abandonment of the whole or a part of the Connecticut easement, in consideration of the receipt of a public benefit of equal or greater value, is an exchange which the riparian owners cannot make without the state's consent. King v. Ward, 4 A. E. 384, Jolliffe v. W. L. Board, L. R. 9 C. P. 62, 88; Attorney-General v. Terry, 29 L. T. 716, 22 W. R. 200 — S.C., on appeal, L. R. 9 Ch. 423, 432; State v. Wheeling Bridge, 13 How. 518, 577; Gould Wat., s. 94; Ang. T. W. 203-223; Ang. High., ss. 233-235. A bridge across a navigable river may be a more important highway than the river, and "it is for the municipal power . . . . to decide which shall be preferred, and how far either shall be made subservient to the other. Gilman v. Philadelphia, 3 Wall. 713, 729; The Clinton Bridge, 10 Wall. 454; Miller v. Mayor,109 U.S. 385, 394-398. "The legislature alone could determine the question of comparative public convenience, and either refuse to lay out a highway which would impede navigation, or grant it upon terms, conditions, and reservations, as the public interests might in their judgment require for the protection of the navigation." Charlestown v. Com'rs, 3 Met. 202, 206; Com. v. Essex Company, 13 Gray 239, 247; Com. v. Charlestown, 1 Pick. 180, 185, 187. By an exercise of legislative power, authority can be given wholly or partially to discontinue a public way on land or water. The Connecticut easement is public property that can be abandoned by due action of the government. But no power has been conferred on the defendants or on the court to exchange any part of it for public benefits derivable from the defendants' manufacturing enterprise.

The forests, formerly owned by the state, were held by the body politic in trust, in a certain sense, for the common benefit of the people. When the state sold them, the proceeds, like money raised by taxation, went into the vendor's treasury for public, not for private, use. When the title was in the state, it was not held for the several benefit of everybody who desired the timber for the construction of houses or ships. The public right of navigation in navigable water, salt or fresh, is held by the state in a different trust. It is a right that all may exercise for private profit. The state, as trustee, holds the legal title. The state, and the people as individuals, have the use. The object of the trust is evidence tending to show that the common right of navigation is not unnecessarily extinguished by a mere conveyance of land, or by a mere creation of an imaginary being called a corporation.

"The dominion and property in navigable waters" is "held by the king as a public trust." "When the Revolution took place, the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters and the soil under them for their own common use." Martin v. Waddell, 16 Pet. 367, 401, 410. "By the principles of the common law the title to navigable waters and the soil beneath is vested in the crown in trust for the public. . . . By the charters under which these colonies were planted there was vested in the grantees not only the crown's title to the lands granted, but its lights and jurisdiction in and over the navigable waters and seashores, to be held, as by the crown, in trust for the public." Clement v. Burns, 43 N.H. 609, 616, 619. "By the common law the king was held to be owner and proprietor of the soil under the sea, its shores, and all tide waters, and as such could grant the right of property therein to a subject, though this was not usually done without the previous execution and return of a writ ad quod damnum, to ascertain whether such grant would cause any injury to any public right. But it was further held at common law, that, beyond a right of property, the king's prerogative extended to the dominion and control of the shores of the sea, as a power held in trust for the security and protection of the public rights in the navigation and fisheries; that these were among the regalia or incidents of sovereignty which could not be alienated by a royal grant alone. . . . . Supposing, then, that the commonwealth does hold all the power which exists anywhere to regulate and dispose of the seashores and tide waters, and all lands under them, and all public rights connected with them, . . . it must be regarded as held in trust for the best interest of the public, for commerce and navigation, and for all the legitimate and appropriate uses to which it may be made subservient. . . . Two distinct rights are regarded, viz., (1) The jus privatum, or right of property in the soil, which the king may grant, and which may be held by a subject, and the grant of which will confer on the grantee such privileges and benefits as can be enjoyed therein, subject to the jus publicum; (2) The jus publicum, the royal prerogative by which the king holds such shores and navigable rivers for the common use and benefit. . . . This royal right, or jus publicum, is held by the crown in trust for such common use and benefit, and cannot be transferred to a subject, or alienated, limited, or restrained, by mere royal grant, without an act of parliament. The king's grant, therefore, although it may vest the right of soil in a subject, will not justify the grantee in erecting such permanent structures thereon as to disturb the common rights of navigation; and such obstruction, notwithstanding such grants is held to be public or private nuisance, as the case may be." Com. v. Alger, 7 Cush. 53, 82, 83, 90. "The king takes this right of soil in trust for the public, so far as fishing is concerned; and although the king may grant away this right of soil to another, yet his grantee will take it subject to the same trust; and, by such grant, however comprehensive in its terms, the public . . . cannot be deprived of their common right." Weston v. Sampson, 8 Cush. 347, 352; Dunham v. Lamphere, 3 Gray 268, 271; Moore v. Sanford, 151 Mass. 286; Free Fishers v. Gann, 11 C. B. N. S. 387, 417; Aug. T. W. (2d ed.) 22-25, 27, 64; Gould Wat., ss. 17, 18, 20, 21. "The right of soil . . . must in all cases be considered as subject to the public right of passage, . . . and any grantee of the crown must of course take subject to such right." Colchester v. Brooke, 7 A. E. N. S. 339, 374.

A legal reason for the king's inability to surrender navigation is the establishment of the trust by usage and universal understanding for the maintenance of the common right. For the same reason the right is not destroyed by the state's conveyance of the basin or bed in which the navigable waters rest, or through which they flow. No federal question being raised, this case is to be determined by the local law, which regards the people and the state as holding the beneficial interest in an easement, the legal title of which is vested in the state as trustee. Acting as a body politic and trustee, the beneficiaries, by their legislative agents, can authorize an extinguishment of the trust, and an abandonment of the trust estate. Wales v. Stetson, 2 Mass. 143, 146; Com. v. Charlestown, 1 Pick. 180, 185. But there is a natural presumption that if the legislature intended to do this, their purpose will be distinctly expressed, as in the provisions for the discontinuance of highways and the assessment of damages therefor. G. L., c. 71. "An intention to discontinue such a highway [as the Androscoggin] cannot be inferred from a public grant of the land under and around it, — a mere alienation of the ownership of the soil by an ordinary form of conveyance. A sale by the state of all its ungranted land could not be construed as a relinquishment and abolition of the public rights of navigation in Piscataqua river, or lake Winnipiseogee." Thompson v. Androscoggin Co., 54 N.H. 545, 548. Such a sale was authorized by c. 42, Laws 1867. When the soil under the Connecticut at Olcott falls passed from the king or the state to the first grantees (under whom the defendants claim), it did not cease to be subject to the easement. An express reservation of the public trust and common use was unnecessary. And the nature of the trust which would have made that reservation superfluous in a state grant of the land to the defendants, had the same effect in grants of corporate capacities deemed appropriate for other purposes than the total or partial discontinuance of the highway. Like the riparian rights comprised in the land title, the franchise of their artificial body to exercise those rights is subject to the easement held in trust for common use.

The express refusal of the legislature to allow the defendants as a canal company to extinguish the old free way if they furnished a new and better one through a canal subject to tolls, has no tendency to show that the legislature intended, for the sake of the most insignificant mill, to authorize them to stop the old way without providing a new one. If they can stop the passage of logs a single day in the dry season because they need all the water on that day for an up-and-down saw, they can discontinue the old way entirely by building and operating mills large enough to require all the water every day. They do not claim a power of total and absolute discontinuance; and in the statutes on which they rely there is no mention of any discontinuance, total or partial, permanent or temporary, to be accomplished by a manufacturing diversion of the water. There is no expression of a legislative intent to introduce such an uncertainty and such a prolific source of litigation as a corporate power of discontinuing the highway, to some extent, by turning a reasonable amount of water from the natural channel for manufacturing purposes. The acts of 1848 and 1881 enable the defendants to act as a corporate body in the exercise of riparian rights that existed before those acts were passed, and do not curtail the measure of the public right of flotation which the common law finds in the natural capacity of the stream. If a temporary interruption is unavoidable in the erection or repair of a dam, the right of incorporated or unincorporated riparian owners to bar the way for that purpose without such a license from the state as is given by municipal governments for the occupation of streets during the erection or repair of buildings is a question that need not now be considered. The general rights of the riparian owners and the public may be subject to various qualifications. So far as this suit is concerned, the public right of way is not impaired by the acts of 1807, 1818, and 1881. It is a right to a way of which the floating capacity of the undiverted river, in its natural channel, is the measure. The defendants' right is to use the river and its bed without an invasion of the public easement. Both rights are established by law. Neither of them can be altered by the trial and determination of any issue of fact. The only question of fact is as to the manner in which the public and the defendants can enjoy their settled titles and exercise their indisputable rights. The prayer of the bill is for a necessary regulation of the common use of the river for commercial and manufacturing purposes by a specific decree that cannot be rendered in a suit at law.

When the defendants were preparing to build the dam, the question necessarily arose by what sluice and by what appliances they could avoid an infringement of the public right; and this question they were not compelled to decide at their peril. On their amicable bill, in which the attorney-general, as the representative of the state, would be defendant (Sampson v. Smith, 8 Sim. 272, Tasker v. Lord, 64 N.H. 279, 283), and of which notice would be given to persons specially interested, the defendants could have obtained a provisional decree of regulation, operating like a partition, marking the boundary line between the public and the private right, and enabling them to construct their works in a manner authorized by law. The proceeding would have been in the nature of an ad quod damnum. King v. Montague, 4 B. C. 598; King v. Russell, 6 B. C. 566, 588, 600; Nichols v. Boston, 98 Mass. 39, 41; Gould Wat., ss. 21, 43. The decree, virtually laying out a log-way over the projected dam, would have afforded adequate protection against suits at law for damages, and efforts to abate an alleged nuisance by chancery suits, criminal prosecutions, and force without legal process. If it were found by experiment, after the completion of the dam, that either or both of the water-rights required an alteration, justice would be done on application of either party. An unalterable judication would not be made in a matter in which changes might be rendered necessary by results and circumstances that could not be foreseen and provided for. Either party might be plaintiff and either might be defendant. And if this bill is necessary for a regulation of the manner of exercising the common rights by constructing and using a sluice and other appliances, it is not barred by the defendant's erection of dam.

"Courts of equity have jurisdiction of that class of cases where there is an admitted common right among several owners of the same privilege to regulate the common use, to determine the extent of their respective rights, and the proper mode of exercising and enjoying them, as tending to prevent litigation, and as affording a more complete and perfect remedy than could be obtained at law, and as furnishing, in fact, the only adequate means of ascertaining and determining the respective rights of the parties." Burnham v. Kempton, 44 N.H. 78, 100; Ranlet v. Cook, 44 N.H. 512,515; Bean v. Coleman, 44 N.H. 539, 542; Lawson v. Company, 59 Wis. 393; Gould Wat., s. 540, and cases there cited. The ground of equity jurisdiction in many other cases is the want of an adequate process at law for finding lost boundaries (Sto. Eq., c. 11) and locating private ways. In Gardner v. Webster, 64 N.H. 520, the defendant had conveyed land, reserving a right of way across it to "the ``Point,' so-called." In the opinion, the court say, "The location and limits of the reserved way are not specified. The defendant is entitled to a reasonably convenient and suitable way across the land conveyed to the Point. . . . The defendant's right of way through the plaintiff's pasture does not authorize him to pass over all parts of the pasture at his pleasure. Its route through that lot is determined not by the sole interest of either of the parties, but by the reasonable convenience of both. If its location were contested, the controversy might not be settled by the negative result of many actions at law. Both parties, or either of them, might need a decree in equity that would fix the route affirmatively and specifically."

In the present case, on the question of the proper form, dimensions, and place of a sluice, the jurisdiction of equity is as plain as in a partition of water-power between mill-owners, the ascertainment of lost boundaries, or the laying out of a private way. At the trial term the court can cause the log-way to be located and defined by a jury, and put upon them the duty of drawing a report containing a specification for the construction of the dam and sluice. But it has not been shown that the law of any country requires such work to be done by twelve unanimous persons. If a judicial location of a log-way over the dam is necessary, the convenience of the defendants will be consulted so far as it reasonably may be without a violation of the public right to a way as good as the stream would furnish in its natural condition, and the location will be alterable at any future time on application of either party. No location will be made unless a necessity for it is shown. It would seem that this question of necessity will be best tried and decided upon the experiments annually made at the Falls. How long the bill should be retained for a satisfactory settlement of this point is a matter to be considered at the trial term. As either party can obtain equitable relief in vacation without this suit, it is possible that the case will be properly disposed of at the next trial term, or after another annual experiment, by dismissing the bill without cost, and without prejudice, except so far as equity may require a decree for the adjustment of expenses that have been incurred by either party under interlocutory orders.

If a log-way is laid out in this suit, the public will have a right to a reasonable use of it. A controversy as to what would be a reasonable use of it, or of the stream in its natural condition, will not be a dispute about the public right in any sense that will require the right to be settled by the trial of a question of fact before the bill can be maintained for the laying out. As a fee simple in land is, for many purposes, nothing more than a right of exclusive possession and reasonable use (Bassett v. S. M. Co., 43 N.H. 569, 577, Thompson v. Androscoggin Co., 54 N.H. 545, 551, 552, 555, Com. v. Alger, 7 Cush. 53, 84-87), so an ordinary public or private right of way is a right of using land or water, or both, as a way, reasonably and with due care. Sewalls Falls Bridge v. Fisk, 23 N.H. 171; George v. Fisk, 32 N.H. 32; Graves v. Shattuck, 35 N.H. 257; Thompson v. Androscoggin Co., 54 N.H. 545,558 — 58 N.H. 108; Hall v. Brown, 58 N.H. 93, 95; Carter v. Thurston,58 N.H. 104, 107; Varney v. Manchester, 58 N.H. 430; Collins v. Howard,65 N.H. 190; Gould Wat., ss. 95, 96, 110. The entire natural capacity of the river for flotation is public property. The lumbermen, as travellers on a highway, are entitled to a reasonable and careful use of that estate. Reasonableness of use and care, attached as a limitation to the ownership and enjoyment of corporeal and incorporeal property, does not permit the lumbermen to injure the defendants' works by negligence or an unreasonable use of the entire natural floating power of the river, nor allow the defendants to deprive the lumbermen of the reasonable use of any part of that power. Both parties are bounded by the line established by law between the incorporeal right of the public and the other rights of which the defendants' title is composed. There is no question of right or title in the sense in which those words are used, when it is said that the legal right must be established at law before it is specifically enforced in equity. If it is necessary to lay out the undeniable public way over the dam, one question may be how narrow the sluice should be at different times to secure a sufficient depth of water. The defendants are apparently as much interested as the lumber company in an economical solution of such questions. In cases like this, and Gardner v. Webster, the owner of the servient tenement may sometimes be more relieved than the other party by a laying out of the easement. An equitable power, employed in the measurement, location, and adjustment of legal rights before an attempt is made to exercise them, is often more useful than any remedial course that can be taken after a controversy has arisen on their alleged violation. In this case, the rights of all parties being known, a regulating process may not be needed.

Case discharged.

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