
    Shaw and others against Crawford.
    NEW YORK,
    May, 1813.
    
      Bauenkiil, in ^VashingJonl though not enumerated in the statute declaring certain rivers and streams public highways-; (sess. 24. c. 186. s. 34.) yet, having been used ao such, by the public, for the purpose of rafting down boards and timber, for more than 26 years, the usage has created a public right, and an action will, therefore, lie against the owner of a milk dam fox so obstructing -the navigation cs to injure the raft of the plaintiff, in passing over.
    "IN EUROS, on certiorari, from a justice’s court. Crawford sued Sham and several others, before the justice. Three of the defendants appeared, and the plaintiff declared for damages done ii ' r o to his boards, at the mill of the defendants, on the Battenkill, in Washington county, in November, 1810. The defendants pleaded the general issue, and there was a trial by jury. The plaintiff proved by three witnesses, that the Battenkill had been used for rafting, for above 36 years; and another witness testified that he had known it to be so used for 26 years. It was also proved that the apron of the defendants’ mill dam was out of repair; that when it was in repair, light cribs of boards would float over the dam in safety; that the defendants had long kept an apron over the dam; that when the plaintiff’s raft of boards was taken down the kill, there was a large stick of timber run over where the apron ought to be, and where the rafts usually pass down, and by reason of that obstruction, the plaintiff sustained damages, in the loss of his boards, to the amount of 18 dollars. The defendants moved for a nonsuit, on the ground that the Battenkill was not a public highway ; but the justice charged the jury that it was a public highway, and a verdict was found for the plaintiff.
    The cause was submitted to the court without argument.
   Per Curiam.

According to the authority of Sir Mathew Hale, and which was cited in Palmer v. Mulligan, (3 Caines’ Rep. 315. 319.) a river not navigable in the common law sense of the term, and though the fee of it belongs to the owners of the adjoining banks, may still be liable to the public uses of rafting and boat navigation, as a public highway. The Battenkill has been used for rafting for twenty-six years and upwards. This was fully proved upon the trial, and no right was set up in opposition to the right founded on this usage. A usage of this length of time will, of itself, grow into a public right, and especially, where the public interest, or public convenience, is essentially promoted. Thus, a private passage leading from one part qf a public street to another, and being open to all the world, for a great number of years, was held by Lord Ellenborough to grow into a public right, which could not be interrupted. (Rex v. Lloyd, 1 Campb. 260.) In the case of Balston v. Bensted, (1 Campb. 463.) Lord Ellenborough also ruled, that twenty years’ exclusive enjoyment of water, in any particular manner, affords a conclusive presumption of right in the party so enjoying it. The case of Beales v. Shaw (6 East, 208.) was a solemn decision of the K. B. on that very point.

Though the Battenkill be omitted in the statute declaring certain rivers and streams public highways, this omission cannot pre~ judice or impair the right, which the public may have acquired by usage. The object of the act was not to release any public right, but to ascertain and declare it, in cases where it otherwise might have been doubtful, or liable to dispute and interruption. When a river is so far navigable as to be of public-use in the transportation of property, the public claim to such navigation ought to be liberally supported. The free use of waters which can be made subservient to commerce, has, by the general sense of mankind* been considered as a thing of common right. Individuals who. occupy the adjoining banks may use the waters for their own emolument, so far only as it can be done without any material interruption of the public use. Every owner of a mill-dam on a stream which fish from the ocean annually visit, is bound to provide a convenient passage way for the fish to ascend. This point was lately decided by the supreme court of Massachusetts, in the case of Stoughton v. Baker. (4 Tyng’s Mass. T. R. 522.) The civil law contains ample and precise regulations on the whole of this subject. Every impediment to the natural course and the natural use of rivers and streams, which essentially contribute to the public benefit, becomes a public nuisance.

Judgment affirmed-  