concurring in judgment. This case presents either necessarily or by possible implication many difficult and perplexing questions, rendered more so by their far reaching and perhaps unforeseen results. What is and. is not a floatable stream I am at present utterly unable to define, and my inability is not lessened by reading tbe authorities from other States. Tbe doctrine may be said to be of common law origin, and like nearly all such doctrines is tbe offspring of necessity. It seems to come to us from some of tbe Northern States where there are large bodies of timber with intersecting streams, but few local railroads and no efficient system of public roads. Tbe present value of such lands is principally in their timber and its value depends upon tbe accessibility of market. Under such circumstances the practical use of tbe smaller streams is confined almost exclusively to floatage, which being of paramount importance, came to be regarded as of paramount right. Having such an origin, the doctrine is naturally affected in different States by their different necessities and local statutes.
How small a stream may be floatable I am not prepared to *759say; and I am glad that at least this much difficulty has been solved by the decision of this Court holding that these streams now under consideration are floatable streams. I suppose this is now the law of the case; but it does not settle the case. The term “floatable stream” implies an easement in some one to use the stream for purposes of transportation. Whether this easement belong to the general public or is appurtenant to the riparian lands, it is difficult to say. If it exists at all, it must belong to the riparian owner, as a natural easement. Whether it vests in him solely, or in common with others, it is needless now to discuss. If it is worth anything to anybody, it is a valuable appurtenance to his land, of which he can not be deprived without adequate compensation. Whether this compensation must be in money, or may be in the increased conveniences afforded him by valuable improvements upon the stream, need not now be considered; as no compensation whatever appears to have been given to him, and no substantial improvements have been made which would increase the facility of transportation. I speak of the riparian owner as a class, each of whom has the easement, where it exists, as far as the floatability of the stream extends. If he owns the easement, then the State can not charge him for the simple use of it. In the majority of cases the State has granted to him the bed of the stream, and has nothing left therein to grant to any one else. I concede the right of the State to establish a highway on water or land, but it can acquire the bed of the highway in private1 lands only by sale or dedication by the owner, or by condemnation according to law with adequate compensation. Whether the State establishes such a highway directly or through the agency of the Counties or even by a private corporation, may not be mate: rial, as in any event it would be a delegated exercise of the right of eminent domain, which is exclusively vested in the *760State as an inherent prerogative of sovereignty. The State can not take private property even for a public us© without just compensation, and can not take private property solely for the private use of another under any circumstances. Of course it can not authorize any one else to do what it can not do. I also admit that where the State has made or caused to be made valuable improvements of a local nature, it may charge a reasonable compensation for the use of the increased facilities and benefits afforded by such improvements. But this is in the nature of a toll and not a tax, and presupposes some corresponding benefit to him who pays the toll. Where there is an utter failure-of consideration, why should the toll be paid ? But is said to be in the nature of special tax levied upon the property to be benefitted. But on what property is it levied ? Not on the logs, for they have not been benefitted, nor even assisted in their journey. Moreover a tax must possess'some element of uniformity; and if levied locally for a special purpose, its disbursement must be confined to its creative objects.
While I do not mean to attack the general constitutionality of the Act, I think it is defective in application and affords no constitutional warrant for the assessment under consideration, as no improvement whatever has been made upon the stream, and no pretence of condemnation of whatever private property may have vested therein. I do not think the State can in the utter absence of any general system of taxation, tax directly or indirectly the easement held by the plaintiff. Eor the reasons stated above, I think the judgment should be affirmed.