French v. Camp , 18 Me. 433 ( 1841 )

The opinion of the Court was drawn up by

Weston C. J.

The waters of thePenobscot are, of common right, a public highway, for the use of all the citizens. This right is generally exercised, when they are in a fluid state; but when congealed, the citizens have still a right to traverse their surface at pleasure. Travelers have occasion to cross that, and other public rivers or streams, upon the ice, at points where public ferries have been established. And certain duties are by law imposed upon ferrymen, to aid the public in the enjoyment of this right. Stat. 1825, c. 292. And it is matter of general notoriety, that in all the settled parts of the State, public rivers and streams, not broken by falls or rapids, are traversed up and down upon the ice, in such well marked and beaten ways, as are most convenient for the public. They are not proper subjects for the application of the statute laws, provided for the location of public roads or highways ; nor are they susceptible of being governed by the rules and principles, by which easements of this kind may be otherwise acquired on land. Yet we do not hesitate to regard them as public rights, so far under legal protection, as to entitle a party to a civil remedy, who is wantonly and unnecessarily disturbed by others, while attempting to participate in their enjoyment.

It is contended, that the defendants bad an equal right to cut a hole in the ice, to water their horses or other cattie, or for other purposes. Assuming that the defendants have as good a right to the use of the water, as the plaintiff!, or the public generally, had to the right of passage, the use of a common privilege should be such, as may be most beneficial and least injurious to all, who have occasion to avail themselves of it. To cut a hole in the centre of a road upon the ice, or so near it, as to entrap a traveler, is a wanton and unnecessary disturbance of the right of passage. It is making an improper use of a part of the river, lawfully appropriated, for the time being, to a different purpose. It is a direct violation of that great principle of social duty, by which each one is required so to use his own rights, as not to injure the rights of others. With the common bounty of Providence, accessible to them at all points below the surface of the ice, the act of the defendants, in subjecting the plaintiff to loss, to whom no fault can be imputed, and who was in the lawful exercise of his rights, cannot be justified ; and in our opinion, they must be held answerable for the damage they have occasioned.

Judgment on the verdict.