The following dissenting opinion was delivered by
Wells J.— The facts of this case are very imperfectly presented. It does not appear, by whom, nor when the dam obstructing the passage of the water into the river St. John, was erected, nor who was the owner of the land upon which it was erected. Nor does it appear, who made the “ cut” or channel on the plaintiff’s land, nor when it was done. The case is so bald and barren of those facts, which should be known, to lay the foundation for a decision, that it would be more satisfactory, to have it presented to a jury, to ascertain them.
But there are facts enough to show, that the plaintiff is claiming to himself all the benefit of the dam and the channel. In the contract, upon which the action is based, the channel is called “ his cut,” and a person must be extremely incredulous, who does not believe that the plaintiff nota only claimed the benefit of the “ cut” but also of the dam. The “ cut” and dam were made for each other, one being useless without the other, and while the plaintiff claims the benefit of the “ cut” or channel, he does effectually claim that of the dam. He cannot shield himself upon the ground, that he has nothing to do with the dam, while he is claiming toll for the flow of waters, caused by the dam.
But assuming that he did not make either, and only succeeds to those who did, how does his claim stand ? He owned the channel when the contract was made, claimed the right to take toll for its use, and was, therefore, availing himself of the use of the dam. He musters fifty men to maintain his claim, and compels the defendants either to fight their way through, to sacrifice their lumber, or to enter into a contract, the terms of which were dictated altogether by himself. Had he the right so to do ?
There was a vast body of water, stopped by the dam, com*567prising Allegash and Chamberlain lakes, and the Allegash river, the outlet of those lakes. The natural flow of these waters was into the St. John, but they were turned by means of the dam and the channel, into the Penobscot river.
1. The first question which arises is, are the waters thus turned from their natural course, public or private ? The public may acquire a right of servitude, in streams not considered navigable, at common law, by long user. Berry v. Carle, 3 Greenl. 269. And fresh water rivers, though in point of property, they are prima facie private, yet they may be of public interest, and belong to the people, as public highways. Spring v. Russell, 7 Greenl. 290; Palmer v. Mulligan, 3 Caines, 307 ; 3 Kent’s Com. 27. The magnitude and capacity for public use of our great rivers and lakes, proclaim them as the highways, made by nature, to promote intercourse and commerce among mankind. The People v. Platt, 17 Johns. R. 195. It is well settled that the public may acquire a servitude in waters, not navigable, at common law. The Allegash is a fresh water river, not affected by the tides. It appears by the case, that it has been used by the public for floating logs, without any interference on the part of those claiming property in it. If the owners of its bed, allow the public to use the waters which flow over it, the right, to do so, is for the time being, equally as available to the defendants, as if it had been secured by a long user. No one questions the public right to use these waters, and it is unnecessary to inquire whether that right is gained by their extent and magnitude and natural fitness for commerce, or by long use, or by dedication on the part of the owners, of their bed to the public.
The waters are unquestionably subject to public use. Both parties have treated them as such, have floated their lumber on them, without any claim or objection made by any one.
2. Has the plaintiff a right to appropriate these waters to his use, and claim compensation from those, who pass through his channel ? If the waters are public, he can only have a concurrent use with the citizens generally ; he cannot be entitled to the exclusive use. The waters are not his, and cannot *568be made so, by a mere change in their course. It is quite immaterial, whether he produced the change, or it was done by another, so far as the present action extends.
Here is not a case of the appropriation of water, for mills or manufactories, which even in such cases cannot be done, to the detriment of public rights, without the sanction of the Legislature, but an entire change of the outlet of a vast body of water, for the very purpose of turning it through a new channel, to float lumber into the Penobscot, instead of the St. John. The question does not depend upon who has done this act, but upon the right in the waters themselves. The land, in which the channel is cut, is the property of the plaintiff, but the waters are not. They belong to any one, who may desire to use them, to float lumber. When flowing through the plaintiff’s channel, they are still the waters of the Allegash, and the property of the public is not divested. If one should change an arm of the sea, so that it should pass through his land, or ’should succeed by purchase of the land to one who did, the common law right of navigation would not be taken away, nor would the right depend upon who made the change, but upon the public nature of the waters. A claim to toll, in such a case, would hardly be tolerated on the ground, that the person, claiming it, was not the one, who made the change. Such w'aters would still be navigable, and it is that quality, which gives the right to their use, notwithstanding- the change of location, by whomsoever effected.
A person, who might divert the Kennebec, Penobscot or any other public river, turning it through his own land, could not by such usurpation acquire exclusive control over those waters, and preclude the public, who had a previous right, from following and using them in their new courses. Nor could he by a conveyance to another, assign a right, which - he did not possess. If the assignee could be permitted to say that he was not the wrongdoer, and therefore he had a just claim to prohibit any one from passing, the public would be entirely deprived of its property in those rivers.
*569Supposing the plaintiff had no agency, in erecting the dam, he would not be responsible for its consequences, and if the flow of the water through his channel was any detriment to him, he might cause the dam to be abated as a nuisance. But ho does not object to the present course of the water; his conduct indicates that he considers it a valuable right, and is solicitous to secure the profits of it. If it had been made against his wishes, it would have been very easy for him, to have proved an invasion of his property.
IIow could the defendants be trespassers in passing their lumber through the channel ? The water upon which that lumber floated, was theirs in common with all others. The plaintiff had the power to stop its flow there, but did not, do it. He must therefore be considered as assenting to it. One has a right to follow his property, of which he has been wrongfully deprived, into the close and possession of another, if he commit no breach of the peace. But here was a continuity of property in the defendants, by means of the existing servitude, from the lakes and the river, through the channel, and it is not apparent, how one can be a trespasser in such a use of his own property.
The owner of land, through which a public river has broken and found a new bed, holds the same relation to the public as did the owner of the land over which it had previously flowed. He cannot claim the whole river as his property, because the waters are not his. Nor are those who use it trespassers. It is said in Angelí on Watercourses, 221, “by what was said as to those rivers which are public highways, it will appear, that a river of this kind, by constituting to itself a new channel, may convert a private field into public property; that is, the new channel becomes public for use and accommodation, and cannot be impeded or obstructed.”
This principle is derived from the civil law. “ If a river, entirely forsaking its natural channel, hath begun to flow elsewhere, the first channel appertains .to those, who possess the land close to the banks of it, in proportion to the extent of each man’s estate next to such banks ; and the new channel *570partakes of the nature of the river, and becomes public. And, if after some time the river returns to its former channel the new channel again becomes the property of those who possess the lands contiguous to its banks.” Just. Insti. Lib. 2, Title 1, § 23. And this doctrine does not appear to be at variance with that of the common law, but it is believed that it can be clearly inferred from the principles of that law, appli•cable to public rivers.
If the river has been changed by artificial means, which are still existing, and the owner of the new bed, though he did ■not cause the change, suffers it to continue, he cannot thereby •■acquire entire dominion over it. He might as well say in the one case as in the other, that those who have a right to the use -of it, should restore it to its ancient channel.
The beneficial use and right is in the waters, and the owner •of the substratum, upon which they rest, cannot draw to '.himself an exclusive property in them.
It is manifest, that there was a concurrent action between those who built the dam, and those who made the channel, .and the plaintiff, if he was not one of those, is the owner of the land where the channel was made, and succeeds to the ■property, in the position in which they placed it; their wrongful acts can confer no right upon him; as they could not • acquire the control of the water, he cannot be in any better ■situation by their misfeasance. If they could not hold the -defendants as trespassers, the sale of the land to the plaintiff would not render them such. He took the land with the property of the public, and can acquire ■ no rights superior to .theirs.
In Arundel v. McCulloch, 10 Mass. R. 70, it is said, that no individual can appropriate navigable waters to his own use, or confine or obstruct, so as to impair the passage over them, without authority from the Legislative power.
The same principle must apply to those waters, in which a public easement exists, for floating boats, rafts or logs.
The defendants having a right to follow the waters of the Jakes and the Allegash, through the channel made on the *571plaintiff’s land, the contract, which was entered into by them, is void for want of consideration.
3. The power of taking toll is a part of the sovereignty, and the exercise of it must be derived from the government. A person cannot erect a bridge or make a road, holding them out to public use, and taking toll, without authority from the State. But he may erect a bridge or open a passage through his own land for his own accommodation, and may permit others to pass them under an agreement, for compensation, yet he cannot take a settled or constant toll, even in his own private land. The distinction consists in the dedication, or holding out of the franchise to public use, and in the reception of toll; and in a private use, in which others are allowed to participate for compensation. Olcolt v. Banfield, 4 N. H. R. 537 ; State v.Olcott, 6 N. H. Rep. 74 ; Wadsworth v. Smith, 2 Fairf. 278.
The plaintiff, and those under whom he claims, must have contemplated, that the owners of lumber over a vast extent of territory, would be under the necessity of running it through the “ cut” or channel to market, and that compensation would be obtained for the transit. The plaintiff claimed a toll of two shillings per thousand feet. Apprehending an attempt would be made to pass through the channel without payment, he sent fifty men with instructions, to prevent by force, the accomplishment of such purpose. The defendants entered into the contract declared on, agreeing to pay the toll demanded, and one-half of the expenses, incurred in the services of the men.
There were several millions of feet of lumber, cut by the defendants and others, lying in the waters, and intended to be passed through the channel, at the time, when the contract was made. Indeed there was no other way to run lumber from the Allegash and its tributary waters, into the Penobscot river, but through it.
He manifestly held the channel out to public use, claiming a, toll for it. The defendants offered to pay what the Legislature-should establish or the law allow, but the plaintiff would not permit the logs to pass, without an agreement to pay the toll,, which he had fixed.
*572No doubt any one may make a road over his own land, and erect a gate, and refuse to let persons pass, unless compensation is made for the use of the road. And if the road is really made and intended for his own use, he would have a right to receive compensation for the license. But if the road is made for the use of the public, or one already existing so appropriated, with the intention to derive toll from a public use, such a fianchise cannot be established without authority from the government. A partial and limited use by the owner himself, in concurrence with the public, could not alter the real nature of the franchise. So also a person may make a canal and locks to improve the navigation of a private river, for his own use, and receive compensation for the use of them by others, but if the great and paramount object is public and not private use, to obtain tolls or profit from the public, such a course cannot .be pursued without a charter from the Legislature.
Unless so plain a distinction is observed, it would be easy for any one, to establish a lucrative franchise, without application to the proper authorities, and numerous evils and impositions would flow from such assumptions, on the part of individuals, claiming such powers, which would be restrained only by their own interest or will. The present case is a fit illustration of the wisdom of the law, in establishing .the principle under consideration. The plaintiff causes a band of fifty men, to march many miles, for the purpose of preventing by force of arms, the use of the channel without the payment of a toll, which he has established, thus endangering the public peace, and the lives of those who might enter into the conflict. And the defendants, to save their property, which would have been worthless, unless it could have been got to market, were under the necessity of entering into the contract, prescribed by the plaintiff, not only to pay the toll, but one-half of the expenses incurred by the plaintiff , in the alleged employment of his men, to protect and guard the channel; thus swelling his claim to an enormous'amount. While there is no evidence of any preparation, on the part of the defendants, to obtain by force, the use of the channel.
*573This case is submitted to the Court, for its decision, upon the facts, without the intervention of a jury. It is a question of fact, whether the plaintiff held his channel out for public use ; or whether he kept it for private use; and the public use was but incidental. But the whole bearing of the facts most clearly shows, that the channel was kept for public use. It was evidently intended for the passage of lumber, to be cut on an immense extent of territory, and there is no evidence the plaintiff owned any more than the township, through which it was made. His own lumber must have been of small amount, in comparison with that of all other owners.
At the time when the defendants entered into the contract, there were several other persons’ logs passed through the channel, and of whom compensation was claimed, and the men were detained to prevent their passage without some agreement to make compensation.
No length of time is necessary for the continuance of such claim, to render it illegal. The first act of claiming toll, under a franchise, set up without authority, is as objectionable, as a subsequent one. How long prior to 1846 such claims had been made is not exhibited, but there is sufficient evidence, in that year, of those made, to show the extent and purpose of them, and to prove the paramount object to have been to keep the channel for public use.
The plaintiff being prohibited by law, from taking toll under such circumstances, the contract was in violation of law, and cannot lay the foundation of an action.
4. But there is another ground of defence to this action, even if the claim were not in direct violation of the law and prohibited by it. It is true a contract obtained by menace of a trespass to lands or goods, by the common law, is binding, because redress may be obtained, if such injuries be inflicted. Chitty on Con. 55. But in Chase v. Dwinal, 7 Greenl. 134, the plaintiff recovered back the money, he had paid for boomage of logs, which were not subject to it. As the loss of property would have been very great to him, if he had resorted to an action for damages, or to recover his logs, detained under a *574claim, illegally made, he was allowed to recover the money paid, on the ground of extortion, and that the payment was not voluntary.
The contract, which the defendants made, is inoperative for a like reason, the logs not being subject to the demand of the plaintiff. No threat of injury to their property was made, but to save themselves from an' impending loss, they signed the contract. The same principle, which would have enabled the defendants to recover back the money, if it had been paid, furnishes a defence to the action.
In my opinion, there are no legal grounds upon which this action can be sustained.