Pearsall v. Post. are excluded all mention; and so of the proceedings by jury to determine and certify encroachments. All are confined to highways. This term is said, by the defendant's counsel to be generic, and to comprehend landings. The selectmen in Bethum v. Turner, 1 Greenl, 111, had power to lay out highways; but their laying out a landing and place of deposit was held no protection to its occupants; and we held the same thing in respect to these very men of North Hempstead, in their certiorari against the judges of Queens, 17 Wendell, 9, 12. It is clear to my mind, even if the certificate of the jury were, in a proper case, to have the effect of a judgment between these parties, that the matter was equally beyond their jurisdiction as it was beyond that of the commissioners. As remarked by Chief Justice Nelson, in the case cited, the only way in which they could act favorably to a landing, would be indirectly, by exerting their statute powers for establishing and preventing encroachment on a highway, leading to and connecting with it. In this respect, as to subject matter, the powers of the commissioners and jury are commensurate; the commissioners may lay out de novo, or describe and record an old highway; and the jury settled the question of encroachment upon highways, where the point is disputed; but the power does not extend to landings. Independent of what I take to have been the plain intent of the legislature, a landing, even though for the purposes of direct transit, is more than a highway. The relative rights, both of owner and passenger in a highway, are perfectly understood and familiarly dealt with by the law. Subject to the right of mere passage, the owner of the soil is still absolute master. The horseman cannot stop to graze his steed, without being a trespasser ; it is only in case of inevitable, or at least accidental detention, that he can be excused even in halting for a moment. The landing of wagons, horses and passengers on the shores of a river, a sea or an ocean, even though it be upon a dedicated or recorded highway on the land connecting with the watery way, and for the direct purpose of going onward, is still a trespass on the riparian owner, unless we could suppose such acts to be performed with on, Pearsall v. Post. The out any contact between the vessel and the shore. In Chambers v. Furry, 1 Yeates, 167, the plaintiff, who owned the eastern shore of the Susquehannah river, sued the defendant, who had a right of ferriage from the western shore, in trespass for landing his passengers on, and taking them from the plaintiff's soil, with freight; for all which he was accustomed to receive ferriage. The landing and reception is said, by the case, to have been from and on board the defendant's flats, which I suppose answered to our scows. The defence was that the locus in quo was a public highway. The defendant failed to establish that fact; but M'Kean, C. J., and Yeates, J., said, "had it been a highway, would it have been a justification? The public would, in that case, have been entitled to a right of passage; but the title to the soil, the stones, the wood, or the grass growing therewould have still continued in the owner of the lands. use of the ground would have been dedicated to the public for particular purposes only. The books lay it down that in England the right to the bed of a navigable river is presumed to belong to the crown; and of course, in such case here, to the commonwealth, usque ad filum aquæ ; but the right to the adjoining land rests in the owner of the soil. Hence arises the right to wharves in the city of Philadelphia, and commercial ports. No one can use them without making compensation to the respective proprietors." Cooper v. Smith, 9 Serg. & Rawle, 26, was an ejectment against a ferryman for claiming, and exercising a similar right on the plaintiff's soil, who was a riparian owner on the Youghiogany river. The court, by Duncan, J. adopted the reasoning in Chambers v. Furry. They say "the place where the landing was, if a public highway, in an action of trespass would not be a justification. The position of the court "that Sumral might lawfully ferry, and land his boats on the public road, was erroneous, for this was the very question in Chambers v. Furry. There are a few ferries whose landing is not a common highway." The case was now before the court on error, from the C. P. on the charge of President Roberts, who had used that language to the jury now quoted and denied by the court. Yet the case went Pearsall v. Post. for the planitiff, on a failure to make out an actual highway, and the judgment was therefore affirmed. But in Chess v. Manown, 3 Watts, 219, the very point was decided that you cannot moor your boat, and land from the river on a road, though it be regularly laid out and connected with the boat highway on the river. The court said, "the franchise of the public was to pass over the soil and no more." The case is the stronger as the road was laid out with its termination at low water mark, and as in Pennsylvania, it is well known that all the considerable rivers, even above tide, contrary to the rule in most of the other states, and especially here, are deemed the soil of the state, not of the riparian owners. Shrunk v. The Schuylkill Nav. Co. 14 Serg. & Rawle, 71. The right in question was to a hihgway over Manown's farm on the Monongahela, which has been judicially pronounced within the local rule. 14 Serg. & Rawle, 79, per Tilghman, C. J. Still inasmuch as there the owner has a freehold as against all except the state, down to low water mark, it was held that even a road to that point would not sanction the landing with ferry boats and passengers on his land. The amount of these cases is, that roads are made to be travelled on, and not to be occupied, much less blocked up by sloops and scows. If the contrary were allowed, the ferryman might derive a profit from his toll, which belongs to the owner, under pretence of a free passage. The intention of laying out a public highway, is to make a free passage, not a profit to the owners of water craft. The easement is for land, not water carriage, and therefore is not to be touched by the latter, without the permission of the owner. To what cases the words public landings and watering places, which have found their way into the statute concerning Long Island are to be applied, we are still left to conjecture. The statute goes farther than to suppose a mere prescriptive or customary existence; it takes them to have been laid out, or hereafter to be laid out so far using words applicable to highways, which are laid out by commissioners under prescribed forms: 2 R. S. of 1813, p. 304, 5. 3 R. S. of 1830, p. 243 ; vid. also 2 R. L. of Pearsall v. Post. I 1813, p. 307, § 8, and 3 R. S. of 1830, p. 255, § 93; yet we are referred to no power in any one or more persons to lay them out. The statute studiously avoids any such power. The attention of counsel was drawn to this subject, by what we said on repudiating the assumed power of the commissioners, in 17 Wendell, 11, 12. The suggestion was, I think, before counsel, when they tried Pearsall v. Hewlett, one of the cases now before us; and it is now confessed that no power has been discovered in any statute or charter to lay out landings. In one case I perceive, that what was called by the act of 1801, 2 R. L. p. 193, §5, "landing place," simply is, by the later statutes altered to "public landing place." 2 R. L. of 1813, p. 307, § 8, and 3 R. S. of 1830, p. 255, § 93. It is said that the laying out, can only mean an appropriation by public user in the nature of a prescription; but we have, I think, seen clearly that the common law itself stands in the way of any such assumption. Other statutes, perceive, assume that tracts of land, common to some towns, are, or were once owned by them ; 3 R. S. p. 356, § 17, 20; to what extent I do not know; but in Oyster Bay, they are treated as comprehending beaches and marshes. Id. § 20. Landings and watering places on such lands would be of course, in a degree, public. In Cortelyou v. Van Brunt, 2 Johns. Rep. 357, a public landing place is presented as recorded in the old county book of roads. It is called a common landing place. The power of commissioners even to regulate watering places, on the assumption that all the neighbors had immemorially used them, has, I know, been resisted, and I think effectually. The commissioners had twice attempted to regulate a watering place in Crab Meadow, in the town of Huntington, Suffolk county. It was a pond, about eight rods in circumference. Pinckney, who claimed the pond, apppealed to three judges of the C. P. first in 1821, when they reversed the decision of the commissioners; and again, in 1822, when a subsequent decision of the same commissioners was affirmed, on the ground of immemorial user by the public. From the last decision, the case came before this court, (my notes say,) Pearsall v. Post. in October term 1827, when the decision was reversed. Two questions were discussed by the judges: 1. The right of the public to interpose such a claim; and 2. The effect of the first, as a bar to the second proceeding of the commissioners. The only notes I have,of the decision appear to be recent, and on what information they were made, I do not remember. The ground is not stated, and I may be mistaken in other respects; but my notes are full, that difficulties were felt in the course of consultation, as to the legal existence of such public customs; and the origin and character of the Long Island watering places were not satisfactorily explained. They were assimilated by counsel in argument to that which I have before mentioned from Co. Litt. 56, a., which we have seen was local to the people of a definite place. Towns are known to have common lands; and these reaching the sea shore, on Long Island, may perhaps be thrown out temporarily, or by permanent regulation, at least, for the use of the town's people. It is enough however, that we are thrown upon the common law, which does not recognize any such prescriptive easement for the benefit of a whole people. Manning v. Wasdale, 5 Adol. & Ellis, 758. See I will merely add, upon the main question, that considering our extensive lines of coast, immense, when we take into the account our seas, lakes and rivers; the long public enjoyment throughout, of landings on mere courtesy, and under the notion, I am persuaded, of mere license revocable when the resort should become inconvenient; considering the like circumstances in respect to other objects, such as watering places at the shore and in creeks, springs and wells; a rule of law, which should admit the possibility of turning such enjoyment into prescriptive and absolute right on the part of the public, would open a field of litigation, which no community could endure. What is still worse in a moral point of view, it would be perverting neighborhood forbearance and good nature, to the destruction of important rights. We shall do quite enough for the public, I imagine, by giving them dedicated streets and ways; and at any rate, if we shall hereafter |