Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow § 156.: Conversion of non-navigable into navigable streams.— - 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

Return to Title Page for 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

Search this Title:

Also in the Library:

Subject Area: Law
Topic: The American Revolution and Constitution

§ 156.: Conversion of non-navigable into navigable streams.— - 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]

Edition used:

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.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 156.

Conversion of non-navigable into navigable streams.—

Whether a stream is a navigable or a non-navigable stream, must be determined by a consideration of its condition in a state of nature. A stream that is unnavigable in fact cannot, by dredging and the removal of obstructions, be converted into a navigable stream so as to affect the rights of the riparian owner in the stream or in its bed, except in the exercise by the State of the right of eminent domain. The conversion of a non-navigable into a navigable stream would be a taking of private property for a public use, which is only possible on payment of full compensation to the riparian owners.2 It is sometimes supposed that in the case of Carondelet Canal & Navigation Co. v. Parker,3 the State undertook to convert a non-navigable into a navigable stream without payment of compensation to the riparian owners, and in the syllabus of the case as reported in the American Reports, it is stated that the State may authorize a private corporation to convert an unnavigable stream into a navigable stream, and charge tolls for the improvements. But a careful study of the case will reveal the fact that the bayou St. John was really in legal contemplation a navigable stream, although practically unnavigable for most if not all commercial purposes.

But, on payment of compensation, the right of property in a non-navigable stream may be forfeited by its conversion into a navigable stream, in the same manner as all other rights of property in lands must fall under the exercise of the right of eminent domain. Thus, where a State constitution prescribes, contrary to the prior existing law, that the title to the beds of navigable streams up to high water mark shall be in the State, and that such beds shall never become the property of any private owner; the constitutional provision will not be permitted to operate so as to deprive the owner of a wharf, whose existence antedated the adoption of this constitutional provision, of his property therein, except in the exercise of the right of eminent domain and upon the payment of full compensation.1

The regulation of the use of navigable streams is as clearly within the police power of the State as is that of the highways. Navigable streams are the public waterways of the country.2 The power to regulate is limited only by the constitutional requirements of uniformity and equality and of reasonableness. Thus a State may, in permitting the floating of logs down a navigable stream, institute all needful and reasonable regulations which will prevent the obstruction of the ordinary navigation of the stream and damage to other craft and the shore.3 And where dams and sluices are permitted to be constructed by a milling company on a navigable stream, the State has the power to impose regulations, subsequent to the grant of the right, which are necessary to prevent the interference with the ordinary rise of the stream.4

[2]See Hathorn v. Stinson, 12 Me. 183; Bradley v. Rice, 13 Me. 200; Waterman v. Johnson, 13 Pick. 261; Wood v. Kelley, 30 Me. 47; Paine v. Woods, 108 Mass. 170, in which it has been settled that if a natural pond or lake is raised by artificial means, the boundary line will continue to be at low water mark of the pond in its natural state.

[3]29 La. Ann. 430 (29 Am. Rep. 339).

[1]Yesler v. Board of Harbor Line Com’rs, 146 U. S. 646.

[2]See post, §§ 223-225 for a very full discussion of such regulations.

[3]Crane Lumber Co. v. Bellows, 117 Mich. 482.

[4]St. Anthony’s Falls Water Co. v. St. Paul, 168 U. S. 349; Minneapolis Mill Co. v. St. Paul, 168 U. S. 349.