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Subject Area: Law
Topic: The American Revolution and Constitution

§ 155.: Regulation of non-navigable streams—Fisheries.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

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A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 155.

Regulation of non-navigable streams—Fisheries.—

Where two tracts of land are divided by a navigable stream, the general rule is that the boundary line is the low water mark on the adjoining shore, and the soil or bed of the stream is the property of the State.2 But if the stream is not navigable, the boundary line is the center of the current of the stream, commonly called the filum aquæ, and the owners of the shore have a right of property in the bed of the stream up to this filum aquæ. In neither case does any one acquire any exclusive right of property in the stream of water. The riparian owner, in the case of a non-navigable stream, may make a reasonable use of the water, even appropriating absolutely a portion of it, in the form of water or of ice, but no one has a right to assume absolute control of the stream, unless from beginning to end it lies wholly within his lands. Where a non-navigable stream passes over the lands of two or more adjacent owners, the adjacent riparian owners have mutual easements upon the soil of each for the free and unrestricted flow of the water. The riparian owners have the right to use the water to a reasonable extent, but cannot so use it as to diminish the flow or corrupt the water.3 It may be said with truth that almost any use of a stream of water is likely to corrupt it, and, in the absence of statutory regulation, what is and what is not a lawful use of the stream, is a judicial question, to be determined by the consideration of the circumstances of the case, including the economic necessities and industries of the community through which the stream passes.

The maintenance of a tannery or saw mill may not be a nuisance in one locality, while it may be considered one in some other locality. And, independently of statute, if the riparian proprietors make a certain use of a stream for some time, the fact that it renders the stream unfit for another use, which some other riparian owner wishes to make of it, does not make the customary use of the stream a nuisance. But the legislature may, in consideration of the public interest, prohibit any use of a non-navigable stream, which interferes with another use of it, when the public welfare demands that the stream should be adapted to the latter use. Thus, an act of the legislature was declared to be constitutional, which prohibited the use of all streams entering into a reservoir, in any way that would pollute or corrupt the water.1 But it can hardly be doubted that, if such a stream had been previously used in connection with a tannery, or other business, which would render the water of the stream unfit for drinking purposes, the subsequent establishment of a reservoir, drawing its water from this stream, and the prohibition of the tannery or other like business, could not be sustained, so far as the prohibition or destruction of the objectionable business is concerned, unless provision was made for payment of compensation to the owner of the tannery or other like business for the loss he has thus sustained. Such a prohibition would be a taking of private property for a public use, within the meaning of the constitutional provision, which requires the payment of compensation for the property so taken.

The riparian owner is prohibited from erecting or maintaining a dam across the stream, and causing an overflow of the land above or diminishing the volume of the stream below.1 But whenever the public welfare requires it, or it serves in any way to promote the public good, the legislature may authorize the construction and maintenance of such dams, provided compensation is made to all riparian proprietors, who may have been injured thereby.2 While the maintenance of a dam, without legislative sanction and without the consent of the riparian owners, is a trespass, if made and maintained for the statutory period of limitation under a claim of right to do so, an absolute right to its maintenance may thus be acquired; and it has been held that one, who has maintained a dam across a non-navigable stream for twenty-one years, cannot be required by statute to construct and maintain a passage-way over the same for fish.3 The owner of the dam cannot be compelled at his own expense to maintain this passage-way, but the State can undoubtedly authorize those, who may be thereby benefited, to construct the passage-way at their expense, taking care to compensate the owner of the dam for whatever damage he has suffered.4

The establishment of wharves, extending into the stream of a navigable river, is always subject to police regulation and prohibition; and one would suppose that this would be open to no constitutional objection, in any case in which the title to the bed of the stream is in the State. It would seem, however, to be different, if the stream were non-navigable. In such a case, a law, prohibiting the driving of piles in the river, would be an unconstitutional taking of private property, unless it could be shown that damage results to the riparian proprietors above or below.1

It is not permissible at common law to divert a stream from its regular channel, if by so doing injury results to the owners above or below.2 Water may be diverted from the channel for any reasonable use, but it can only be detained as long as it is necessary and reasonable, and it must be returned to the channel before it passes to the land of the riparian proprietor below.3 But what would otherwise be an unlawful or unreasonable diversion or detention of the stream may be legalized by legislative authorization, upon payment of compensation for all damage suffered by the other riparian owners.

Another, sometimes valuable, right of property in non-navigable streams, which may be subjected to police regulation, is the right to catch the fish of the stream. The riparian owners have the right to fish on their own banks, and in any part of the stream which lies within their boundary line. Unless the catching of fish is conducted with reason, either the fish may be altogether exterminated, or the enjoyment of the right by one may interfere with the equal enjoyment of the right by others. For the protection of the fish, and for the maintenance of equality in respect to the right to fish, the State can rightly regulate fisheries, providing that the regulations are reasonable, and do not extend beyond the prevention of the threatened injuries.1

[2]As to what is, and is not, a navigable stream, see Tiedeman on Real Property, § 835; 1 Washb. on Real Prop. 413; and cases cited in these treatises.

[3]Washburn v. Gilman, 64 Me. 163 (18 Am. Rep. 246); Richmond Manuf. Co. v. Atlantic Delaine Co., 10 R. I. 106 (14 Am. Rep. 658); Jacobs v. Allard, 42 Vt. 303 (1 Am. Rep. 331).

[1]State v. Wheeler, 44 N. J. L. 88. See State v. Griffin (N. H.), 39 A. 260.

[1]Sampson v. Hoddinot, 1 C. B. (n. s.) 590; Colburn v. Richards, 13 Mass. 420; Anthony v. Lapham, 5 Pick. 175. See St. Anthony’s Falls Water Co. v. St. Paul, 168 U. S. 349; Minneapolis Mill Co. v. St. Paul, 168 U. S. 349.

[2]Lee v. Pembroke Iron Co., 57 Me. 481 (2 Am. Rep. 59); Gray v. Harris, 107 Mass. 492 (9 Am. Rep. 61); Proctor v. Jennings, 6 Nev. 83 (3 Am. Rep. 240).

[3]Woolever v. Stewart, 36 Ohio St. 146 (38 Am. Rep. 566). But see State v. Beardsley (Iowa, ’99), 79 N. W. 138, in which a statute, which required owners of dams to maintain a fish-way for the free passage of fish, and to abate the dam as a nuisance, if such fish-way is not maintained, was sustained, even when enforced against the proprietor of a dam which had been maintained for twenty-three years, and he owned the land on the opposite shores.

[4]Commonwealth v. Pa. Canal Co., 66 Pa St. 41 (5 Am. Rep. 329).

[1]City of Janesville v. Carpenter, 77 Wis. 288.

[2]Elliott v. Fitchburg R. R. Co., 10 Cush. 191; Macomber v. Godfrey, 108 Mass. 219 (11 Am. Rep. 349); Tuthill v. Scott, 44 Vt. 525 (5 Am. Rep. 301).

[3]Clinton v. Myers, 46 N. Y. 511 (7 Am. Rep. 373); Arnol v. Foot, 12 Wend. 330; Miller v. Miller, 9 Pa. St. 74; Pool v. Lewis, 46 Ga. 162 (5 Am. Rep. 526).

[1]See Holyoke Co. v. Lyman, 15 Wall. 500; Commonwealth v. Chapin, 5 Pick. 199; Commonwealth v. Essex Co., 13 Gray, 247; Weller v. Snover, 42 N. J. L. (13 Vroom), 341; Doughty v. Conover, 42 N. J. L. (13 Vroom), 192. In the last case, the statute under consideration prohibited the use of fishing nets at certain times of the year in particular counties. See, also, Commrs. of Inland Fishing v. Holyoke Water Power Co., 104 Mass. 446 (6 Am. Rep. 247). See, also, ante, § 151.