Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1896-03-13


vate, not subject to the servitude of the
public nor to be regarded as public high
ways by water, because they are not sus-
ceptible of use as common passage for
the public. In BrOrn =. ChadbOurnc, 81
Me. 8, 80 Am. Dec. GAL, leading case on
this subject, much cited in other jurisdic-
tions, it is said that the distinguishing test
between rivers that are entirely private
property and those that are private proper
ty subject to public use and enjoyment
consists in whether they are susceptible or
not of use as a common passage for the
| public; that the true test whether a high
! way or not is, whether the stream is nhe-
! rently and in its nature capable of being
used for the purposes of commerce, for the
! floating of vessels, boats, RATS or logs
that when a stream possesses such a
character the easement attaches, leaving
to the owners of the bed all other modes
of use not inconsistent Herewith In
Morgan z. King, 80 n. Y. 454 the true
rule is said to be, that the public have a
| right of way in every stream that is capa-
bic in its natural state and its ordinary
volume of water, of transporting, in a
condition fit for market, the products of
the forests or the mines or the tillage of
the soil upon its banks. In the recent case
of HGylcdrd Q. Farmers Mining Co.,
/ South Carolina, % l.. X. A. AZ, the ques-
/ ton is fully considered and the test said TO
| be, navigable capacity, and not that the
surroundings should be such that the
stream may be useful for the purposes of
| commerce, for, it is said, the stream may
not be useful for commerce at one time
and yet circumstances may make it SO at an
| other time. The cases generally are to the
] nb oil hat ic
not necessary to the right that the stream
| should have been used as a highway: it is
enough if it is capable of such use. Nor
| is it necessary that il should have that ca
| pacity at all seasons of the year. 1t may
! be subject to periodical fluctuations in tine
| volume and height of its water, attrlbuta-
| bic TO natural causes and recurring with
| the seasons, yet if its periods of high wa
| ter ordinarily continue a sufficient length
| OF time to make ii useful as a highway, 1t
| is subject TO the public easement But
| the easement is not confined to business
merely; it extends to pleasure as well, the
same as does the easement of a highway
| by land. attorney GeReralr. Woods, los
Mass. 436, II Am. Rep. $50.
As general proposition, waters above
| the tide are, primd fdcie, private in use as
well as in ownership, and he who asserts
| the contrary must prove it. Rhodes T..
! OTIS 80 Ala. SIS, % Am. Dec. 439; note
to st. Louis and C.. Il. L. Co. C.. RAMSEY,
% Am. ST. Rep POI; Angel, Water
! courses, S535. And whether such waters
are, in the given case, inherently capable
OF use as common passage for the public
is question of fact, and he who asserts
that they are must prove it, unless the
court can take judicial notice that they are,
as perhaps it can il some cases. This
! proposition is applicable to the waters in
| question, as they were not reserved in the
| original grant of the town, neither express
/ ly nor by legal implication, and are there
/ fore capable of being private property,
| both in use and in ownership.
! Although this pond is inherently capa-
| bic of floating "a fishing skiff or gun
ming canoe no claim is made that it is
| inherently capable of use to any extent
| beneficial TO trade or agriculture; and the
reason may be, because it is thought that
no such claim can well be made. But
| however that is, we cannot say as matter
of law that it has not such capacity. All
we can say is, that as the case is Pre-
| sented, 1t does not appear to have.
A natural pond of not more than 20
acres, owned by common owner, is, by
| statute, a private preserve" All waters
over which the state has jurisdiction, eX-
cept private preserves and ''posted wa
tiers, are public waters" the crossing of
uncultivated land TO reach which for the
purpose of taking fish is declared not TO be
actionable unless actual damage was done.
! Acts of 1892, No. so, Secs. l and 81 II is
therefore claimed that the waters in ques-
| ton are public waters, for that it is nfera-
bic from the enactment that a natural
! pond of not more than 20 acres is a private
preserve, that larger natural pond is pub
| lie water, and that it cannot be assumed
that the Legislature intended that great
| ponds and lakes can be inclosed and there
by made private property and an exclusive
| right of fishing therein established in dero-
CATION of rights under the common law,
| and that therefore the defendant had a
right to fish in said pond, and is not liable
for crossing plaintiffs land TO reach it. as
it does not appear that the land was cult
waited nor that actual damage was done
But the constitution itself in the provision
under consideration, affords the test by
which to determine over what waters the
! state has jurisdiction de jure, thus: "And
in like manner u fish in all boatable and
other waters mot private property under
proper regulations, TO Do hereafter made
| and provided by the General Assembly,"
Thus was jurisdiction expressly reserved
| to the state over boatable waters and other
waters not private property. State T. Nor
ton, 10 VT 25s; Dreir z. HWiker, So VT.
64l. Such waters, therefore, are public
waters, within the statutory definition of
that term. Hence unless the waters in
question are boatable, they are not public
but private, and the state has no iurisdic-
ton over them. But if they are boatable,
and therefore public, yet the defendant is
liable in trespass for crossing the plaintiff
land against its will to reach them, though
for the purpose of taking fish therefrom.
notwithstanding the statute of 1892 to the
contrary, for otherwise this would be tax
ing private property for private use with
out consent of the owner and without COM
pensatiOn, which the constitution does not
allow to be done, even with compensation.
On this ground the fowage acts of 1866,
'67 and 80 were held unconstitutional in
1yter q. Bedcher, A VT. CAS- On the
same ground the drainage act of 1868, No.
26, was held unconstitutional in the unre-
ported case of Abbott q. Ware, in Orange
county, decided at the March term, 1874, |
think. remember that Judge Pierpoint
said in disposing of that case, that the legis-
lature could as well pass a law that he
might pasture his COW in his neighbours
pasture, as to pass one that he might drain
his swamp across his neighbours meadow.
So in this case it may with equal propriety
be said that the legislature could as well
pass law that any private property may