to undertake the burden for the profits incidentally arising from it. But the ordinary pursuits

of life, forming the large mass of industrial avocations, are and ought to be, free and open to all, subject only to such general regulations, applying equally to all, as the general good may demand, and the grant to a favored few of a monopoly in any of these common callings is necessarily an outrage upon the liberty of the citizens as exhibited in one of its most important aspects-the liberty of pursuit."

From all of this is to be deduced the principle that to grant an exclusive franchise in the operation of what should be deemed public work is for the state, acting in behalf of the ultimate owner, to "farm" it out to another for the incidental profit therein. In this there is a contract made in the free pursuit of business, just as in a contract made by an individual for his own benefit. As trustee for the people the state must guard against the equal rights of any one of its cestuis que trustent being discriminated against. Having common rights in the property which is to be farmed out, let us inquire whether or not that property is indestructible.

3. Things of Common Right in Their Nature Indestructible.-When we say that a bridge, a ferry, or a wharf, belongs to the people, do we mean that the material going into either is what belongs to them? If a highway is laid out, whether it be fit to travel on or not, it belongs to the people. If the people are called out to work upon it or submit to taxation so as to make it usable, it is afterwards, as before, a subject in which there is a common right. So when we speak of a bridge, a ferry or a wharf belonging to the people, it

is no more than when a turnpike or a plank road is similarly spoken of. It is the public highway in which the common right exists, and the farming out of which Justice Bradley speaks is the improvement, for example, of the highway. In this way, to improve a river for a ferry or for a bridge or a landing place for a wharf is not to transfer any right in the river or landing place, but it is a mere permit to one to reimburse himself for his expense in the improvement thereof.

So it comes around to the measure of the use of what underlies the improvement. This underlying thing exists when the improvement is made. As to soil on which a house is built, it is incapable of real deterioration or destruction. All such things continue "as long as grass grows or water runs. They are immortal, if anything terrene may be so regarded.

Of course, there may be abandonment, as of a highway, or change of the course of a stream, but there springs into existence, by the mere application of legal principle, that which takes its place and, possibly, without appreciable interval of time. If there might be a cesser of property on which the principle could apply, there yet remains the unceasing potentiality of application. There is no private property in the indestructible soil of a highway or in the waters of a river or a sea, but there may be granted an easement therein.8

§ 4. Grantee of Easement Taking With Notice.— Right of use is granted by the representative of the public or its trustee, and, the grantee takes with no

8 State ex rel. v. Hannibal & R. C. Gravel Road Co., 138 Mo. 332, 39 S. W. 910, 36 L. R. A. 457.

tice of the limitation on the powers of the trustee, that is to say, with knowledge that one of the public is not to be discriminated against in favor of another.

As showing how similar a river is to an ordinary public highway, that is to say, a road or a street laid out for or dedicated to public use, it has been said: "The ferry may be directly under public control or the sovereign power may authorize a person or corporation to maintain this portable highway. When the power is delegated, the grantee of the franchise discharges a public duty in operating the ferry; and in the discharge of that duty he exercises a privilege which the state may grant or withhold at pleasure. The franchise does not consist of the right to sail his boat upon the stream or moor it by the shore. It is the privilege of operating a floating highway, of establishing and maintaining a public thoroughfare over water, and of charging tolls for the facilities for passage so afforded. Whatever right is enjoyed by the citizen in this regard is derived exclusively from the sovereign power, which has full control over the whole subject. The state may exclude all persons from the business. It may run all ferries itself.""

The germ of the principle of a farmed-out easement in an indestructible property of the people is contained in these words, but its expression is somewhat inexact. It is not the boat that makes a "floating highway." The river is the highway and the right and duty to maintain the boat over the river in a prescribed course is a franchise. That is the easement in the river, an indestructible property belonging to the pub

• Patterson v. Wollman, 5 N. D. 608, 67 N. W. 1040, 33 L. R. A. 536.

lic. As to property with highway rights therein every citizen has a right to swim the river, as a highway, provided he does not injure property employed in the easement or franchise granted to another, or unduly interfere with its use. In an early Iowa case1o there is found very happily expressed the distinction above expressed: "If a person wished to use the buoyant power of the Mississippi river for the purpose of transporting heavy freight, either longitudinally or from one shore of the river to the other, and entirely unconnected with any public highway, the power of the legislature to interfere with his rights in this respect would certainly be very questionable. The river, in that case, offers a facility for transportation, of which he has a right to avail himself. The word ferry seems to denote the right merely to use a river as a highway traversed at a certain point.”

In another case it was said: "The right to a ferry does not at all depend upon the right to or property in the waters over which it passes. It is a maxim upon this subject, that a right of ferry is a franchise consisting in the right to transport persons and carriages for hire, and therefore the property in the waters may be in one and the right of ferry in another. This is said to be the case with ferries in the Thames, where the ferry, in some places, belongs to the Archbishop of Canterbury, while the interest in the waters is in the Mayor and Aldermen of London.'"11 This case then goes on to say that: "Whatever may be the theoretic view of the law as to the property of public waters, it is very clear that they are held for the use

10 United States v. Fanning, Morr. (Iowa) 348. 11 Fay, Petitioner, 32 Mass. (15 Pick.) 243, 253.

of the public, for all useful purposes. Ferrymen have the same common right to navigate these waters with their boats, as fishermen, coasters, shipmasters with their boats and vessels, and the United States with her navies. The franchise of a ferry does not confer or enlarge, take away or impair the right of navigation. It is a franchise, conferring certain privileges and imposing certain duties, not affecting the right of navigation, but presupposing its existence."

This case also holds that the right of the Mayor and Aldermen of Boston to grant a ferry right "is vested in them as trustees for the public, to be exercised for the public good." This is not directly saying that the sovereignty of Massachusetts is a trustee for the public, but it does mean that any subordinate tribunal as to such a duty is a trustee, and its grantee takes with notice of limitation on its authority to grant any franchise in the use of property in which all have common rights, which will work unequally in favor of one as against another.

5. Summary.-Common rights in trade and traffic is one thing. Common rights in what belongs to the public is another. In the one there is the right of privilege; in the other the privilege of use. Both are common, but monopoly in the former is odious and makes pent-up activities which rightfully should be free. In the latter it is praiseworthy, and no more. restricts than does the exercise of the right of a private owner to do as lawfully he may with his own. It bears resemblance to monopoly as to trade and traffic in that it raises an easement in or servitude over that which is of common right, for the real benefit of the proprietors. As Justice Bradley, in effect, says the