In case 1 the answer might have a tendency to involve him in the danger of being indicted as the keeper of a common gambling house, or as a conspirator to defraud. "The question here put," said Maule, J., "is just one of the questions which would necessarily have been asked on an indictment against the witness for keeping a gambling house. I think it is impossible to put a case of the more proper application of the rule which protects a witness from committing himself." And Williams, J., added: "I think it was abundantly clear that his answer in this case must have a direct tendency to place the witness in danger."

In case 2 the chancellor said: "I have looked into all the cases, and I find the distinctions between questions supposed to have a tendency to criminate and questions to which it is supposed answers may be given, as having no connection with the other questions, so very nice that I can only say the strong inclination of my mind is to protect the party against answering any question, not only that has a direct tendency to criminate him, but that forms one step toward it."

In case 3 Lord Tenterden said: "He is not bound to do that, because it may be himself. You cannot only not compel a witness to answer that which will criminate him, but that which tends to criminate him, and the reason is this, that the party would go from one question to another, and though no question might be asked, the answer of which would directly criminate the witness, yet they would get enough from him whereon to found a charge against him."

In case 4 Lord Mansfield held the witness' course proper. "Your questions," said he, "go to connect the witness with the bill, and they may be links in a chain."

In case 5 the party might be the witness himself. "It is well settled," said the court, "that where it reasonably appears that the answer will have a tendency to expose the witness to a penal liability, or to any kind of punishment, or to a criminal charge, the witness is not bound to answer the question. If the fact to what he is interrogated forms but a link in the chain of testimony which would convict him, he is protected, without being requested to explain how he might be criminated by the answer. If it be one of a series of questions, the answers to all of which would establish his criminality, he cannot be compelled to answer that or any of the

series."

In case 6 the court said: "The witness should have answered this question. An affirmative or negative reply could not in any manner have criminated him. The inquiry does not embrace all the gaming within the knowledge of the witness, but only such gaming as was known to the witness in which he was not a party. If the witness had not been excepted in the interrogatory, there would have been more propriety in his refusing to answer, as he might have been a party himself to all the games within his knowledge within the time speci

fied, and in such case an affirmative answer would have a tendency to implicate him. But clearly as the question was put, he could not claim the benefit of the rule."

In case 7 it was said: "The act of the defendants, for which the plaintiff sought to recover, is a criminal offense under our statute, and the question asked tended to obtain from the witness certain facts which would prove that he was present, and aided in the commission of the offense. An answer directly given to the questions propounded by the plaintiff might not have implicated the witness, but when once answered the right of defendant to a cross-examination to test the truth of such answer, might have compelled the witness to state some fact that would have been a link in the chain of evidence that would criminate him." In a case in its facts almost like case 7 (13), Redfield, J., said: "It is well settled that a witness is not bound to answer any question, the answer to which might tend to criminate him, i. e., expose him to a prosecution for crime or penalty. It is doubtless true that this is not the most effectual mode of shielding the witness, for the mere fact of claiming the privilege tends very much to show him guilty of the offense. A rule that the testimony should be given in all cases, but should never after be used for the purpose of procuring a conviction of crime, would be more conducive to the reasonable ends of justice, and at the same time afford full protection to the witness. But such is not the law. It is well settled that the testimony, if freely given, may be afterward used against the witness. I know indeed of no rule to exclude the testimony being given in evidence against the witness, even in a prosecution of a criminal nature, although the witness were compelled to testify under the requisition of a court of justice (14). It is obvious then that the only security of the witness is in silence. The rule should be so administered as to afford full protection to the witness, and at the same time escape simulated excess. From this view of the subject it is obvious that the witness must first determine whether he can make a full disclosure without stating any fact tending in any degree to criminate himself. If he informs the court upon oath that he cannot testify without criminating himself, the court cannot compel him to testify, unless they are fully satisfied such is not the fact, i. e., that the witness is either mistaken or acts in bad faith, in either of which cases the court should compel the witness to testify."

* * *

In case 9 it was said: "The question asked the witness referred to the manuscript from which this libel was published, and which was already in evidence in the cause. A libel is an indictable offense, the direct tendency therefore of this question was to criminate the witness."

In case 10 the court said: "If he had won the amount at gaming unlawfully, which was very sup(13) Chamberlain v. Wilson, 12 Vt. 491 (1840).

be inadmissible against him. See rule. (14) The evidence would be given under duress, and would

thing resembling the magistrate of ancient or patriarchal times, who sat in the gate or market place, and dealt out justice without much thought of fixed rules. No matter how strongly the judge may charge the jury that they must find their verdict according to the facts and the rules of law as expounded to them from the bench, they will too often insist upon taking the law into their own hands, and will decide on some general notion of what is about right, or on some mere whim or notion or cranky scruple. There is often no way of preventing this, or even of finding out upon what ground the jury have decided. Now if instead of a general verdict, the jury were called on to make a finding of specific facts, on which the court was to decide what the rights and liabilities of the parties were, and to pronounce the decision; if instead of being asked, "Is the prisoner guilty of murder?" they were asked, "Did he actually kill the deceased?" "If so, was it done intentionally?" etc., is there any doubt that they would as a general rule be more likely to report the facts correctly than they now are to render a correct verdict? A juryman who now will consent to no verdict but "not guilty," because he believes that capital punishment is unjustifiable, because he won't send such a pretty woman as the prisoner to State's prison; because he likes a drink on Sunday himself, and does not think it fair to punish the man who provides it; because he thinks a man has a right to shoot the seducer of his wife or daughter, or for any other reason which the law excludes, would not dare to sign a written finding that the prisoner did not kill the deceased, or was insane when he did it, or did not steal goods, or did not sell liquor or Sunday; or his overnice scruple would not oppress him so much if he felt that he was not pronouncing sentence, but merely getting up a narrative.

Again, the increased complication of cases nowadays, and the degree of special knowledge, not of law such as judges have, but of business and affairs, needed to comprehend many of them, make them unfit to be taken before juries as now composed.

The following changes in the jury are suggested as tending, while preserving the lay element in the court, to obviate to some extent the evils above mentioned and others:

1. A jury of less than twelve would answer all purposes, and be less clumsy and expensive. Therefore let the parties fix the number of jurymen-not to exceed five except by permission of the court-by agreement, if they can agree. If not, let it be fixed at from three to five, with power in the court to increase it in any case, and with a right in any person accused of a capital crime to have it consist of at least five members. 2. If the parties can agree upon the persons who are to serve as jurymen, or any of them, and they are willing to serve, or are on the jury list and liable to serve, let such persons be placed on the jury. This power the parties now partially have in the selection of referees.

3. Give to either party or the court the right to require a special finding of facts, either the whole or on any special point, and to have it in writing if desired. In this case the jury might be allowed the assistance of an expert to help them put their statement into form. Either party in the court should have the right to present to the jury in writing questions material to the case, which the jury should be compelled to answer in their finding. The court should declare the conclusious of law resulting from the facts found.

4. The dissent of oue jury man, or perhaps of two if the jury consists of five or more, should not, except in prosecutions for capital crimes, prevent the finding of any fact. HENRY T. TERRY.

WATER AND WATER-COURSES MILL-DAMS REASONABLE USE OF WATER.

MAINE SUPREME JUDICIAL COURT.

PEARSON V. ROLFE.*

A mill-owner upon a floatable river is not under legal obligation to provide a public way, for the passage of logs over his dam, better than would be afforded by the natural condition of the river unobstructed by his mills. The right of passage is to the natural flow of the river or its equivalent.

Nor is he under a legal obligation to furnish any public passage for logs over his dam or through his mills at a time when the river at such place, in its natural condition, does not contain water enough to be floatable if unobstructed by mills, although the river is generally of a floatable character.

Whenever a river, with mills upon it, is floatable, aud the mill-owner and those who want to float logs past the mills are desirous of using the water at the same time, all parties are entitled to reasonable use of the common boon; the right of passage is the superior, but not an usurping, excessive er exclusive right; the law authorizing mills puts some incumbrance upon the right of passage.

What is a reasonable use is a question of fact, and depends upon the size and nature of the stream, the extent and kinds of business upon it, and all other circumstances.

ON report.

The first action is for trespass. The writ dated August 31, 1880, alleged that the defendant at Oldtown, August 30, 1880, with force and arms willfully, and without the consent of the owner, let loose the plaintiffs' boom in the Penobscot river by reason whereof a large number of logs ran by the boom into the plaintiffs' mill-pond, and the plaintiffs were put to great expense in sluicing the logs out of the pond. Ad damnum one thousand dollars.

The second action is case. The writ, dated September 18, 1880, alleges that the defendant on the first day of June, 1875, and various other times between that day and the date of the writ, unlawfully erected, maintained and kept a dam across the Penobscot river at Great Works in Oldtown, and unfawfully omitted, neglected and refused to provide a suitable sluice or place of passage for logs being driven down the river by the plaintiff, and caused great loss, damage and detention to the plaintiff in his business of driving logs. Ad damnum five thousand dollars.

The two cases were submitted together to the law court to render such judgment as the rights of the parties require in each case; damages if any, to be assessed at nisi prius.

Wilson and Woodward, and John Varney, for Pear

son.

Chas. P. Stetson, and J. A. Blanchard, for Rolfe. PETERS, C. J. The controversy in these cases arises from a conflict between log-owners and mill-owners as to their respective rights in the use of the water at certain falls in the Penobscot river at West Great Works, in the town of Oldtown Pearson represents millowners, Rolfe represents log-owners. Pearson has mill structures upon his privilege, with such appendages as dams, sluices and booms. Rolfe had a quantity of logs in the river which he was unable to drive over the dam at Pearson's mills, unless Pearson would shut down his mill-gates, thereby suspending his own business of manufacturing, until water enough should accumulate in his mill-pond to float the logs over. This

*S. C., 76 Me. 380.

Pearson refused to do, basing his refusal upon the allegation that the drift-way in the dam, without shutting down his working gates, afforded all the facility for floating logs by his mills that existed in the river at that place in its natural state, as much as there would be provided his mills and all of his structures were entirely out of the way. Rolfe contends that the facts were otherwise, but further contends that Pearson, eveu if he represents the facts truly, having it within his power to furnish more water than the natural facility and flow, was under an obligation from his situation to do so.

The counsel for Rolfe contends that the doctrine of reasonable use applies; and that if the river in its natural condition would not furnish a sufficient flow, Rolfe was entitled to the use of the river in its changed condition for his purposes. We think this position cannot be mained. Our idea is that the doctrine of reasonable use does not apply when the river is not naturally floatable; but does apply when it is naturally floatable or log-navigable, when both parties can use the natural flow and desire to use it at the same time. We are well satisfied that whenever logs cannot be driven over a particular portion of a fresh water river such as the Penobscot above the flow and ebb of the tide, while in its natural condition, such portion of the river is not at such time navigable or floatable, and that the use of the water at such time, and place, so far as he needs the same for his own purposes, belongs exclusively to the riparian proprietor. We think an examination of well settled principles, as illustrated by the decisions, affecting the respective rights of the parties in river easements and privileges, inevitably leads to such conclusion.

Rolfe unquestionably had the general right to use the river as a passage-way for his logs. All navigable waters are for the use of all citizens. In a technical senso at the common law, the Penobscot river would be regarded as navigable only so far as its waters flow and reflow with the tide. But it is navigable in fact, or in a popular sense, or according to a common law of our own, above the reach of the tides. The reason of the old common-law rule, the rule of the English courts, is the reason of the rule in this country. The germ of the doctrine is the same in both countries. We refit the rule to more extended and liberal applications, under the stimulating influences that arise from the wants and necessities of our business, the magnitude of our rivers, and the extensiveness of the internal and inter-State commerce of our country.

The Penobscot river at the place in question, as before intimated, was floatable only, floatable because capable of valuable use in bearing the products of the forests to markets or mills. A floatable stream is the least important of the classes of streams called navigable. Rolfe had the right to use the river so far as it was a floatable river, in such parts or places and at such times as it was floatable. He had the right to avail himself of its navigable capacity for floating logs. But only so far as it was navigable or floatable in its natural condition. It is the natural condition of a stream which determines its character for public use. And it must be its navigable properties in a natural condition, unaided by artificial means or devices. It is well settled in this State and elsewhere, that if a stream is not susceptible of valuable use to the public for floatable purposes, without erections for raising a head, it cannot legally be deemed a public stream, even though it might be easily converted into a floatable stream by artificial contrivances. Wadsworth v. Smith, 11 Me. 278; Brown v. Chadbourne, 31 id. 9; Treat v. Lord, 42 id. 552; Wood Nuis. (2d ed.), § 463, and cases. The log driver takes the waters as they run, and the bed over which they flow as nature pro

vides. Nor has any person the right, unless upon his own land, or under legislative graut, to remove natural obstructions from the bed of a river in order to improve its navigation. This is clear from the same authorities.

On the other hand, what rights have the adjudged cases accorded to the riparian proprietor in a merely floatable and non-tidal stream? It is settled, in this State that he owns the bed of the river to the middle of the stream. He owns all the rocks and natural barriers in it. He owns all but the public right of passage. The right of passage does not include any right to meddle with the rocks or soil in the bed of the river. If rocks are taken, the owner may sue in trespass for the act, or may replevy them from the wrongdoer. Gould Waters, §§ 77, 93a, and note.; June v. Purcell, 36 Ohio St. 396; Ross v. Faust, 54 Ind. 471; Watson v. Peters, 26 Mich. 508; Braxon v. Bressler, 64 Ill. 488. Stone cannot be quarried without compensation from the bed of a private stream for the purpose of constructing a public bridge over the stream. Oberman v. May, 35 Iowa, 89. The owner may maintain trespass quare clausum for an unlawful invasion of land covered by water. Morris Canal Co. v. Jersey City, 26 N. J. Eq. 294; Walker v. Shepardson, 4 Wis. 495; Moor v. Veazie, 31 Me. 360. Ice formed upon a floatable fresh water stream is the property of the riparian proprietors. Wash. Ice Co. v. Shortall, 101 Ill. 46; Mill River Man. Co. v. Smith, 34 Conn. 462; Paine v. Woods, 108 Mass. 173, and cases. See for several pertinent matters, 19 Am. Law. Reg. (N. S.), pp. 145, 337, and cases there cited and discussed.

The mill-owner occupies other vantage ground. His structures are legalized and protected by the statutes of the State. A part of the public right is granted to him, for a supposed gain which the public obtains through the use of mills. He is authorized to build dams and erect mills upon the privilege and to raise a head of water for his use. His stores of water are his property. A person who casts waste into his millpond to his injury is liable therefor. Dwinel v. Veazie, 44 Me. 167. A log-owner is liable if he unnecessarily incumbers the pond of a mill-owner with his logs. The log-owner's general right is that of passage, not of rest. Brown v. Black, 43 Me. 443. There may be however exceptions or qualifications to this. Rev. Stat., ch. 42, § 8.

In the light of these principles governing the rights of the parties, how can it be admissible for the log driver to claim for his purposes more of the river than the natural flow or its equivalent? Can he claim a better passage than would be possible to him were there no structures upon the privilege? If he cannot, without the land-owner's consent, erect dams himself to create a head for facilitating the driving of logs, can he impress into his service the use of dams lawfully erected for other useful purposes by other men? If he has no right to remove or interfere with natural obstructions, to the owner's injury, how can he inter meddle with legally authorized artificial obstructions which do not deprive him in any respect of the ordinary and natural flow? Each is a legal property, the natural and the artificial obstruction. Neither necessarily impairs any subsisting legal right. The only obligation which the law lays upon the mill-owner is not to injure the river passage. He is not required to make it better.

The mill act declares that an owner may erect and maintain a water mill, "and dams to raise water for working it." How can he have the water for working his mill, if others may take it without his consent for other uses? If other may take from him more than the natural flow, when and how often and in what quantities may it be thus taken? Is it to be a reasonable

use? How much is a reasonable taking by one man of another's property without compensation? Where does the doctrine of mutual concession come in, if the mill-owner is to reap no advantages from the plan? Would not Pearson be permitted to remove his structures, leaving the river in its natural state? If he can do that, cannot he hoist his mill-gates at his pleasure for business purposes, allowing the water to pass his mills in manner and quantity equivalent, as near as may be, to its ordinary condition and natural flow?

Let it be borne in mind that the complaint against Pearson is not that he kept back the natural flow, but that he refused to keep it back, that he would not shut down his gates and suspend his business in order to keep it back. The demand was that he should suspend his own sawing and shut down his millgates until the accumulation of water in the mill-pond might be enough to create a navigable flow through the public passage. It would be a curious legal spectacle to see a mill-owner mulcted for not allowing log-owners the use of his dam and mills to create, not a natural, but an unnatural flow upon the river. It would be a different thing however if Rolfe asked for only such a facility of passage as the river in its natural condition would have afforded.

The counsel for Rolfe invokes in his behalf the doctrine maintained by several cases, that where one person improves the navigability of a stream, all other persons having the right to use the stream, may use it in its improved condition. That principle must be admitted. If the channel of a floatable stream is changed or deepened by riparian proprietors for the purpose of making its navigation less difficult, any person using the stream has the benefit of the improvements.. Such a result is unavoidable. The same rule applies to a highway upon land. If a man improves a highway in front of his own land, a traveller may use the improved highway. He must do so, if he uses the way at all. He can no longer use the way as it was. But this doctrine cannot apply to the cases before us. Here the navigable character of the river has not been improved. The gist of the complaint against the millowner is virtually that he would not improve it, when he had the means and power of doing so at easy hand. Here the channel is neither deepened nor widened. The case here differs widely from any case that can be cited in affirmance of the doctrine contended for. Had Pearson improved the navigability of the river for his own use, he would have bestowed the same benefit upon others. But he intended no such improvements either for himself or others. Holden v. Robinson Co., 65 Me. 215, is relied upon by counsel for Rolfe. An incidental remark in the opinion in that case was to the effect that a log owner was entitled to the water raised by a mill-dam. But it was to get down to the dam, and not to get over or past it. That authority therefore is not in the least in our way. In coming to any mill-dam, logs must necessarily pass over the water as raised by the dam. Dwinel v. Barnard, 28 Me. 554, is also relied upon, as approving the doctrine that if a new passage is substituted for au old one, the new one is open to the use of all. We entirely concur in that view. In such a case, no natural stream-in fact no stream-is left in the old channel. But in the case at bar, we are assuming for the purpose of argument, that the full natural stream is left. The court, in the case referred to, places its theory upon the fact that the flow of the waters was so changed "that they could not be used as formerly." Here it is contended that they can be used as formerly without interfering with Pearson, and that the river, at the time in question, was allowed its natural and accustomed flow, or its equivalent.

The fact that it would be a convenience to the pub

lic to use more than a natural flow from the head of water ralsed by mill erections, cannot influence the question in the least. The extra stores of water collected by the mill-owner for his use, are his own. They could be taken by the State for the public for a compensation; or the State could authorize the owner to dispose of their use for a toll. Gould Waters, § 35; Cool. Con. Lim. *592. The legal position espoused by the mill-owner in the cases presented for our decision, is sustained by the effect of the views entertained by the court in Wadsworth v. Smith, supra, and is emphatically and quite directly defended by the case of Thunder Bay River Booming Co. v. Speechly, 31 Mich. 336; authorities relied on by counsel for Pearson.

It will be seen that we have thus far discussed the relative rights of the parties upon the supposition that Pearson's structures and his management of them did not deprive Rolfe of as good a chance of passage as the natural stream would have afforded at the time and place. We do not affirm the fact to be so. We express no opinion upon any disputed fact. We give the rule upon which the facts are to be considered. It is said that the rule may not be a just one, because of the difficulty of observing the operations of nature after the erection of mill-dams. The objection is not formidable. Other evidence may be substituted. Proof of the general character of the river, of its volume and flow above and below the place in question, would be among other things an important matter. A jury would not encounter more diffiulty than that which attends very many contested cases. At all events, the difficulty of proof does not ordinarily dispense with the necessity of proof.

Another difference of opinion exists between the parties upon the facts adduced. That is as to what their respective rights may be in the use of the water when there exists a natural flow sufficient to make a floatable stream, but both parties need the water for their different purposes at the same time, and the use of the water by one injuriously interferes with its use by the other. In such a condition of things, as before expressed, the maxim or doctrine of reasonable use applies. If they cannot both enjoy the same thing at the same time, each must take to himself and concede to the other a reasonable use of the common boon. The right of passage is the paramount or superior right, and necessarily so from the very nature of things. It is a right to move on or by. The stationary obstacle must necessarily yield in order to give it a chance to go by. It is not an exclusive right. It is not a privilege of moving at all times, with any quantities, and without any delay, and under all circumstances. The two rights come in conflict. One does not destroy the other. Each influences the other. The Legislature has surrendered some part of the public right to the mill occupiers for the supposed public good. The mill-owner must not materially and essentially prevent or delay the public passage.

The law authorizing mills necessarily puts some incumbrance upon the rights of passage.

In Cool. Torts, 583, the author says: "The reasonableness of the use depends upon the nature and size of the stream, the business or purposes to which it is made subservient, and on the ever-varying circumstances of each particular case. Each case must stand upon its own facts, and can be a guide in other cases only as it may illustrate the application of general principles. Such general rule should be laid down as appears best calculated to secure the entire water of the stream to useful purposes." The same doctrine is excellently presented by Dickerson, J., in Lancey v. Clifford, 54 Me. 487, and by Rice, J., in Dwinel v. Veazie, 50 id. 479. The want of space forbids quoting from the cases at much length. In the former it is