kept up," and "have also an interest that the tolls shall be equal upon all, for if any are favored the inducement to the company to reduce the tolls below the statute rate is diminished.""32

An illustration strongly showing the theory in incorporating acts-namely, the making navigable an unnavigable stream-is found in a case decided in 1810.33 In America canals have been authorized very much as railroads have been-enterprises purely for public good-and are built with right to condemn land wherever needed.

34

§ 20. Easement of Public in a Highway.—At common law so strong was the principle, that the public acquired nothing more than the bare right of passage thereover, that any use by another of the highway except for that purpose gave to the owner of the soil a right of action in trespass. Thus, in A. D. 1735, it was decided that for one to lay a bridge over a ditch from his land to a highway dedicated by plaintiff as a street was a trespass on plaintiff's land. In 1757 this case was referred to in an action of ejectment for an encroachment on a street and Lord Mansfield gave judgment for plaintiff, saying: "I see no ground why the owner of the soil may not bring ejectment as well as trespass. "Tis true, indeed, that he must recover the land, subject to the way, but surely he ought to have a specific remedy to recover the land itself notwithstanding its being subject to an easement upon it." So strictly was this theory of mere ease

32 Lees v. Manchester & Ashton Canal Co., 11 East. 648. 33 Rex v. Inhabitants County of Kent, 13 East. 220.

24 Lade v. Shepherd, 2 Stra. 1004.

35 Goodtitle v. Alker, 2 Burr. 133, 143.

ment in the public enforced that it was held by English Court of Common Pleas that in a suit of replevin for cattle taken on the highway, it was allowable to defendant owner of the soil to plead that he took them damage feasant where they were not passing and repassing, but had broken into a highway from a close.3

Also it has been held that where plaintiff entered on a highway, not to use it for the purpose of going to any particular place but to shoot game on the moor of the owner of the soil in that highway, an assault upon him by the servants of the owner was justified, the plaintiff being a trespasser.37

As to rivers which are navigable streams, the soil beneath the water as well as the water itself, was in the King, and whatever might be the right to insist that use be strictly for navigation, no right of action for departure from such use arose to any subject as owner of several rights in such a stream.

36 Dovaston v. Payne, 2 H. Black. 527.

37 Harrison v. Rutland (1893), 1 Q. B. 142, 62 L. J. Q. B. 117.

CHAPTER IV.

COMMON RIGHTS IN LANDINGS

§ 21. Ports at common law.

22. Wharves in ports-Docks and quays.

23. Jus publicum emphasized by Lord Hale. 24. Jus regium defined.

§ 21. Ports, at Common Law.-Modern conditions have greatly extended the theory enforced at common law of common rights in public landings, as appears from the landmark case of Munn v. Illinois. This case, however, and the principle upon which it proceeds, will be treated hereinafter. At present consideration is confined to what were deemed public landings at common law. These were places to which access was had by reason of their relation to the navigable waters of the British realm. They were places in its public ports, to establish which it was the prerogative of the King."

It has been said that from what was called a trinoda necessitas there was derived the principle that: "The King has the prerogative of appointing ports and havens, or such places only for persons and merchandise to pass into and out of the realm, as he in his wisdom sees proper," and "by the feudal laws all navigable rivers and havens were computed among

194 U. S. 113, 24 L. Ed. 77.

2 Ball v. Herbert, 3 T. R. 253, 261.

the regalia, and were subject to the sovereign of the state.3

It was further said that: "In England it hath always been holden, that the King is lord of the whole shore, and particularly is the guardian of the ports and havens, which are the inlets and gates of the realm, and therefore so early as the reign of King John we find ships seized by the King's officers for putting in at a place that was not a legal port.

Lord Hale said: "Every public port is a franchise or liberty, as a market or fair and much more; for, first; it is a common resort for merchants and shipping, within itself a franchise. And, secondly, every port had of necessity a market belonging to it, as well for the vent of merchandises that were imported or to be exported, as for the vent of victuals, and provision for the supply of mariners and the victualing of ships, and if any did erect any victualing houses between the port town and the sea, it was punishable. And, thirdly, to every public port there were certain common tolls incident, as for wharfage and land leave and the like, which by law cannot be taken without a lawful title by charter or prescription.""

Lord Hale then cites cases where it was held that a subject may not erect a common port without the King's charter or a lawful prescription, or a port for those of a particular precinct or place, that is to say, a restrained port. It is also recited that a subject might not, so as to defeat collection of customs, set up a port on his own land. "Now, as we have seen in whose power it is not to erect or create a port, it

31 Black. Com. 264.

4 Hargraves Law Tracts-De Portibus Maris-50, 51.

easily lets us see in whose power it is. It is a part of the jus regale or royalty of the Crown of England originally and de novo to erect public ports in this Kingdom.""5

It seems unnecessary here to note the particular features in erection of ports by charter or prescription, because, whether the erection was by one way or the other, the result is the same. Thus, Lord Hale, after considering the different ways of establishing ports, says: "In all publick sea-ports in England, there are three kinds of rights that meet. whether the ports belong in point of franchise or property to the King or to a subject. (1) Jus privatum, interest of property or franchise; (2) jus publicum, the common interest that all persons have to resort to or from publick ports, or publick sea-marts or markets with their goods and wares or merchandizes; and (3) jus regium, or the right of superintendency and prerogative that the King hath for the safety of the realm or benefit of commerce or security of the customs." There is then set out at some length the distinction in ownership of the soil in the shore and ownership of franchise in a port, with the conclusion that: "In the creation of a new port either by proclamation or charter, it hath been the course to secure the interest of the shore beforehand for the building of wharfs and keys for the application of the merchandise and for the building of houses of receipt. It is possible, though not ordinary, that the interest of propriety (in the soil) and the interest of franchise may be divided, but it is usual and best in conjunction.””

5 Ibid, 53, 54.

6 Ibid, 72.

7 Ibid, 73, 74.