great navigable lakes are properly regarded as public property and not susceptible of private property any more than the sea.'

9934

In Ohio it was said:35 "That fishery in such waters as Lake Erie and its bays should be as free and common as upon tide waters and alike subject to control by public authority is obviously just. The reasons for regarding the right as public is as great in the one case as in the other; and we have no hesitation in saying that the right of fishing in these waters is as open. to the public as if they were subject to the ebb and flow of the tide. ''36 The same distinction that prevailed at common law between navigable and non-navigable streams as boundaries and also recognized in this country, that is to say as to former, the riparian owner holds to low-water mark and as to the latter ad medium filum aquae, is observed as to inland lakes which are navigable." It is otherwise, where bounded on small lakes or ponds.38 Where the boundary stops at low-water mark, this leaves the bed of the lake the property of the state, in trust for the people, and subject to common right of all, under right of regulation. In Massachusetts from very early colonial days the question of public rights in "Great Ponds" has interested the people. An ordinance of 1641-47 seems to

34 3 Kent Com. 429, note a.

35 Sloan v. Biemiller, 34 O. St. 492, 514. This case was expressly approved in a very recent case, Winous Point Shooting Club v. Slaughterbeck, Ohio -, 117 N. E. 162.

36 To the same effect, see State v. Franklin Falls Co., 49 N. H. 240, 250.

37 Waterman v. Johnson, 13 Pick. 261; Canal Commissioners v. People, 5 Wend. 423; Fletcher v. Phelps, 257, 262.

38 State v. Gilmanton, 9 N. H. 461; Hathom v. Stinson, 1 Fairf. 238.

be the foundation of the law of that state on this subject and ponds not granted prior to that ordinance that were "Great Ponds" were held to be, like tidewaters, subject to reasonable use for all lawful purposes, such as fishing, boating, bathing and the taking of ice.39 It may well be thought that, if these things could be allowed, navigation would be included. The same test of a lake being public property is made to a stream, that is to say its being made useful in and for commerce.40

$49. Public Rights in Public Landings.-In Amercan decision, both in colonial days and in the time prior to and since 1870, there has been declared jus publicum in navigable waters. Not, however, until the Illinois constitution adopted in that year provided that elevators for grain stored for a compensation should be public warehouses and the general assembly should pass laws for their regulation, was the prac tical application of the theory of jus publicum invoked. In the following year the general assembly of Illinois passed an act to carry this provision of the Constitution into effect. In 1872 there was filed an information for a violation of this act and from conviction of the lessees of a warehouse declared public, for not having taken out a license, there was writ of error to Illinois Supreme Court." The conviction was affirmed, among other reasons, because the exercise of

39 West Roxbury v. Stoddard, 7 Allen 158; Paine v. Woods, 108 Mass. 160; Hittinger v. Eames, 121 Mass. 539. See also Brastow v. Rockport Ice Co., 77 Me. 100; McFadden v. Haynes, etc., Co., 86 Me. 319.

40 Hodges v. Williams, 95 N. C. 331.

41 Munn, et al, v. The People, 69 Ill. 80.

the power claimed was illustrated in "familiar instances found in regulating public ferries and public mills and fixing the compensation in the shape of toll," and "in delegating power to municipal bodies to regulate charges of hackmen and draymen and the weight and price of bread." None of these things, however, show, necessarily, any use of a landing or place belonging to the state in trust for the people, and its being used by private persons for their own advantage. Illinois Supreme Court appeared to view the statute as attempting to do no more than regulate one of the common callings as known to the common law, as to services which anyone had the right to demand upon tender or payment of reasonable compensation. Defendants going by writ of error to the Federal Supreme Court, there caused to be proclaimed the principle that the warehouse in suit came under the rule of property "affected with a public interest" and "ceasing to be juris privati only.”2

It is to be noted that all of the common law authority cited in the opinion as to property affected with a public interest is as to ports and wharves and cranes, while as to a common ferry the excerpt from Lord Hale's treatise "De Jure Maris" shows that it is not property that is originally "affected with a public interest," but which "doth in consequence (of being set up as a ferry) tend to a common charge and is become a thing of public interest and use." There is here merely use of property belonging to individuals and a servitude in favor of the public thence arising. The ferryman is using his private property in a way that makes it "a thing of public interest and

42 Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77.

use," because to do that a franchise or privilege to be granted by the King was necessary. Ferrymen were but common carriers for whom a franchise from the King was necessary, but otherwise they seem, generally, like common carriers.

As to ordinary common carriers a prior ruling of the Supreme Court says "common carriers exercise a sort of public office," and the Munn case adds that: "Their business is, therefore, 'affected with a public interest' within the meaning of the doctrine which Lord Hale has so forcibly stated." But Lord Hale did not use that expression except in reference to ports, wharves and cranes, and when he did use it he spoke of property, and not business, being "affected with a public interest." Thus Lord Hale said: "For now the wharf and crane and other conveniences are affected with a public interest and they cease to be juris privati only, as if a man set out a street in new building on his own land, it is now no longer bare private interest." If he dedicates land to the public, there is an easement of servitude in its favor. The citation of an English case decided in 1800 is where it was held that the public have a right to use cranes erected on public quays. The opinion said: "It is obvious that Lord Hale considered a public quay to be like a public street, common to all the King's subjects. Plaintiff was therefore denied all right to recover for the use of his crane, because he did not show the terms were reasonable.

The Supreme Court, however, appears particularly

43 New Jersey Nav. Co. v. Merchants Bank, 47 U. S. (6 How.) 344, 382, 12 L. Ed. 465.

44 Bolt v. Stennett, 8 T. R. 606.

to rely on an English case decided in 1810.45 This was like the case before the court in that it concerned a warehouse. Otherwise the two resemble very little. Lord Ellenborough regarded the warehouse like a wharf in a public port and further that, it being given the exclusive right to bond the goods it was "invested with the monopoly of a public privilege," which creating a virtual monopoly in the wharf, made Lord Hale's principle apply. Le Blanc, J., thought the warehousing act "expressed to be for the encouragement of trade" affected the "private property" with a public interest and Bayley, J., took the same view. So, that being a warehouse which was the "private property affected with a public interest" was a mere incident in decision.

While the rule thus declared in the Munn case appears to me purely obiter, and the case ought to have been decided on the common callings principle, yet the court argues, that warehouses for the storage of grain stand to "the great producing region of the West and Northwest" in the port of Chicago just as if they were in a port of the sea. But the Allnut case would have failed but for the monopoly of legislative privilege, and an ordinary warehouse did not appear in any of the cases cited to be among the common callings.

$ 50. Public Rights in Warehouses as Public Landings.-The Munn case, as hereinafter will be shown, has been generally indorsed by state courts as to the principle of property affected with a public interest becoming subject to regulation. But this principle was extended in the Munn case to business thereby

45 Allnut v. Inglis, 12 East. 527.