common right is "farmed out" for its better enjoyment by the owners. Such easement or servitude is subsidiary and not independent. As water can not rise above its level, there is no ascendancy above title in that of which the easement or servitude is an incident. Therefore, as public property is for the common enjoyment of all, its adaptation for use leaves it as before. Therefore, further, when the public's trustees, pursuant to the public's welfare, farm out improvement of the public property, the other contracting party takes with notice of the trustee's powers. But independently of such notice the very nature of property, in which there is common right, carries the irresistible conclusion that exclusive privilege of use by an individual is affected by that nature. As a private owner does not convey his title by granting a servitude over, or an easement in it, neither does the public release ownership in doing as it wills with its own. CHAPTER II. COMMON RIGHTS IN THINGS KNOWN TO THE § 6. Preliminary. 7. COMMON LAW Classification of things subject to common right. 8. Waters, that is to say, rivers and the sea. § 6. Preliminary.—It is designed in this chapter to notice the application of the principle considered,1 to those things which were held of common right in all the people in the days of our common law. In the simple society of those times and, especially, before invention and discovery greatly differentiated the prospects and living of one citizen from another, the things in which there existed common rights of all were less numerous than now. Rather it may be said, that this common right existed in practically as many things then as now, but a complex and progressive civilization had not brought to the fore such diversification in subdivision of these ancient rights. Well known examples of this subdivision appear in railroads or public highways and standing at the door of trade as shown in the Munn case, of ordinary highways, bridges, ferries, ports and other things of common law times, in which equal rights were declared and protected. § 7. Classification of Things Subject to Common Right. The grand head to which at common law all uses of a public nature may be thought referable is that of going and coming by the public in all public ways and 11 Chapter 1, ante. 2 Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77. landings. As to these, if preference were given to one over another, it would amount to the restriction of the liberty of locomotion of the citizen. This would be unjust, unless the general owner of these ways and landings, solely for the purpose of improving them and making more convenient their use by the public, gave to a particular citizen the right to attach conditions to such locomotion. For example, the use of a pubile highway, by immemorial custom, included the right to ride a horse or use a vehicle, or drive a flock of sheep or herd of cattle thereon. It is true, however, that any particular use of a highway by one may be restrained. Thus, where a statute made the driver of a herd of horses, mules or swine over a public highway constructed on a hillside liable for all damages done in destroying its banks or rolling rocks thereon, it was said: "The public own the highways and must bear the expense of keeping them in repair. . . There is no absolute liability for using the public highway, but it is deemed probable that a use in a particular way, with particular property, will produce a peculiar injury, and, if such injury is produced, then the person producing it is held liable. ""3 It has been said that: "The only right which the publie has in and to a highway is to use it for the purpose of traveling over it without obstruction or interference."4 Subordinate boards of a state have control merely to protect that use. In the same way landings for the use of all the people, termed public landings, may come about and an 3 Brim v. Jones, 11 Utah 200, 39 Pac. 825, 39 L. R. A. 97. 4 Guernsey v. Northern California Power Co., 7 Cal. App. 534, 94 Pac. 858. easement in favor of the public may be acquired very like to that in a highway." The easement, however, in a public landing may be very different from that in a highway, as only by the structures placed upon a landing and the use of them may the landing, where they are, become a public landing. The landing here spoken of means those places used as docks, wharves, piers and the like, which may be private or public. 6 Commons, ex vi termini, are for public purposes, but a common, as here meant, is not that coming down from feudal itmes. In this way the term is used "in its strict legal sense, as being a right or profit which one man may have in the lands of another." Rights of common, in this strict sense, gave rise to much refinement. There were rights appendant and appurtenant or in gross, but, whether one or the other, they referred to the use generally of uninclosed fallow lands attached to a manor held by the Lord thereof. A common, as here meant, is "in its popular sense a piece of ground left open for common and public use, for the convenience and accommodation of the inhabitants of the town.'' Under this decision would come a public spring of water for public use, and the author has in mind a notable instance of this kind in the State of Georgia. In a treaty with the Creek Indians in the early part of the Nineteenth Century there was reserved to their chief, Gen. Wm. McIntosh, a thousand acre square of land, in the center of which was a spring called Indian Spring. He conveyed this land to the state, which 5 Gardiner v. Tisdale, 2 Wis. 153, 60 Am. Dec. 407. • Dutton v. Strong, 66 U. S. (1 Black.) 23, 17 L. Ed. 29. 72 Black. Com. 33. 8 Cincinnati v. White, 31 U. S. (6 Pet.) 431, 8 L. Ed. 452. • McConnell v. Lexington, 12 U. S. (12 Wheat.) 582. divided it up for sale, except that it reserved for public use the spring, from which flowed waters of remarkable curative properties. Obviously, parks, playgrounds and sites for the advancement of the moral and material welfare of a state or community come under the popular sense of the term "commons." § 8. Waters, That Is to Say, Rivers and the Sea.Possibly one other class of things of common right should be added to the three above spoken of, that is to say, rivers. But a river, at least when navigable, has been called a public highway, and when not navigable it is part of a highway on land, where one traverses the other. When a river interferes with public use the difficulty is met by the use of a bridge or ferry. This is an improvement not wholly unlike improving a highway by making it a plank road or a turnpike, and tolls are similarly authorized. Rivers, therefore, are obstructions to be overcome, while wear and tear is provided for by repairs. There is the same principle at bottom, whether a rivulet or a navigable river crosses a highway, except that in this country the latter is superior to the highway, from a federal standpoint, so far as an obstruction is concerned. Also, state policy may, for certain purposes, give, even to a non-navigable stream, a status to be protected even as against highway laws. This, however, is referable to the state as owner of the whole highway managing its property for the best interests of the public. The sea is considered only as to its ports and comes, therefore, under the classification of landings. |