
    Henry Becker and Albert Azinger v. John Hall et al., Appellants.
    1 2 Ice'on Public Waters: valid .appropriation. Actual possession of ice on public waters when fit to be cut, together with the present intention and ability to -proceed at once to the harvest thereof, is necessary to constitute a legal appropriation thereof, and hence staking the banks of a stream before it has frozen, or marking, staking, or cleaning ice of insufficient thickness for harvesting, does not constitute a valid appropriation.
    
      2 Custom as evidence. A custom that the act of staking ice off by itself on public waters was alone sufficient to constitute a legal appropriation is unreasonable and invalid, as in conflict with public rights.
    
      Appeal from Lee District Court. — Hon. Henry Bank, Jr., J"udge.
    Thursday, December 19, 1901.
    Action in equity to restrain the defendants from interfering with the harvesting of ice formed on public waters. Trial, and judgment for the plaintiffs. The defendants appeal. —
    Affirmed.
    
      F. M. Ballenger and J. E. Craig for appellants.
    
      James C. Davis for appellees.
   Si-ierwin, J.

The ice field in controversy was located in the government canal at Keokuk. The canal is public water and the right to take ice therefrom is a common right. One member of the general public has the same right to the ice' formed upon public waters as has another, until there has been an actual appropriation of such ice. Brown v. Cunningham, 82 Iowa, 517. What will amount to such an appropriation is the controlling question in this case, and the authorities are not in entire harmony thereon. It has been held “that an appropriation of ice upon these waters is made by surveying, marking, and staking off the ice, if unappropriated by others, and expending money to preserve it.”' Gould, Waters (3d Ed.) section 191; Wood v. Fowler, 26 Kan. 682 (40 Am. Rep. 330) ; Hickey v. Hazard, 3 Mo. App. 480. In Hickey v. Hazard, supra, the plaintiff had inclosed a field of ice with marked stakes, and by plowing around it, and had maintained constant possession until the ice was fit to harvest, when he and his men were driven away, and the ice cut and taken by tbe defendant. It was beld that the plaintiff could recover for tbe ice. In tbe Kansas case an injunction was asked restraining tbe defendant from taking ice opposite and next to tbe plaintiff’s land. Tbe question of priority of appropriation was not involved. On tbe other band, it is’ beld in Massachusetts and in Maine that tbe mere marking off or staking off of ice fields does not constitute such an appropriation as will vest tbe right to tbe ice. In Barrett v. Ice Co., 84 Me. 155 (24 Atl. Rep. 802, 16 L. R. A. 774), tbe plaintiff was tbe lessee of a portion of tbe shore of a great pond. In tbe fall be dug a ditch from tbe pond to tbe upland for tbe purpose of floating ice therein. On tbe night of January 27th following, be run a line of marked stakes around tbe field be proposed to harvest. He owned some tool and ice bouses, which be bad not, however, used for several years. Tbe defendant was in tbe ice business, and bad the year before cut tbe ice ■on tbe same water. Late in tbe fall, but before tbe ice began to form, it cut out and removed tbe lily pads which were in tbe pond; it kept tbe ice clear of surface water and of snow, and bad worked thereon before tbe plaintiff set bis stakes. About tbe last of January it went upon tbe pond and commenced cutting and hauling ice therefrom, and continued to do so. An action of trespass was brought against tbe company by tbe plaintiff. Tbe court says: “Tbe only acts looking” towards an appropriation “were bis digging tbe ditch, bis nocturnal erection of stakes and surveying, and tbe written notice. He scraped no snow, be removéd no lily pads; be ignored tbe surface water; made no preparation whatever to cut tbe ice, though 12 to 14 inches thick.” Tbe action was dismissed. In Peoples’ Ice Co. v. Davenport, 149 Mass. 322 (21 N. E. Rep. 385, 14 Am. St. Rep. 425), the plaintiffs scraped tbe snow from the ice, and put down stakes to show where tbe lines were. They then suspended operations for several days. Tbe court says: tbe plaintiffs “cannot * * * appropriate a part of tbe pond by scraping it or setting up stakes and exclude the public therefrom. The ice, until it is cut, remains a part of the realty, and no one has any exclusive title to it. Upon tl^e facts of the case at bar we are of opinion that the plaintiffs had no title to or possession of the ice cut by the defendant which enables them to maintain an action of tort in the nature of trover.” See, also, Rowell v. Doyle, 131 Mass. 474. It is apparent from an examination of the authorities that no rule can be adopted that will exactly fit all cases, but we think there may be deduced from them a rule that will do substantial justice to all. We believe the true rule to be that there can be an appropriation of ice formed upon public waters only when the ice is fairly merchantable, and when he who seeks to appropriate it has the present intention and ability to proceed at once to the harvest thereof, and does so proceed with reasonable diligence. No rights can be acquired by staking the banks of a stream before it has frozen, as was done in this case by both parties; for, if such a rule were established, the public could be forever excluded from participation in such public benefits. Nor can the marking, staking, or cleaning ice not yet of sufficient thickness for harvesting amount to a legal appropriation thereof. ■ In addition to all this, there must be actual possession of the field when fit to cut, coupled with the present intent and ability above stated. We find the facts to be in the case at bar that the plaintiffs were in actual possession of the field, and harvesting the ice, when interfered with by the defendants, and that the defendants had not, therefore, legally appropriated such ice.

A custom regarding the appropriation of ice along the Mississippi river 'is pleaded, and evidence introduced in support thereof. The evidence does not, in our judgment, support the plea; but, if it did, it would be clearly unreasonable, and in conflict with public rights, and for this reason should not be sustained. Freary v. Cooke, 14 Mass. 488; Coal Co. v. Sanderson, 94 Pa. 302 (39 Am. Rep. 785) ; Dempsey v. Dobson, 184 Pa. 588 (39 Atl. Rep. 493, 40 L. R. A. 550, 63 Am. St. Rep. 809) ; Attorney-General v. Tarr, 148 Mass. 309 (19 N. E. Rep. 358, 2 L. R. A. 87) ; East Birmingham Land Co. v. Dennis, 85 Ala. 565 (5 South. Rep. 317, 2 L. R. A. 836, 7 Am. St. Rep. 73); Susquehanna Fertilizer Co. v. White, 66 Md. 444 (7 Atl. Rep. 802, 59 Am. Rep. 186) ; Walker v. Transportation Co., 70 U. S. 150 (18 L. Ed. 172, 13 L. R. A. 438), note.

The judgment of the district court is affirmed.  