Woodman v. Pitman

Haskell, J.

I concur in the result, but I cannot agree to the-reasoning of the opinion of the court for the following reasons :

The right of navigation in public waters is paramount, although they may be subjected to any other useful purpose, even though such use may temporarily impede the paramount right; but. when a use blocks navigation, it must cease until the necessities, of navigation be served.

A vessel may lawfully be at anchor in and completely obstruct, a roadstead so long as it is not needed for passage by other vessels but when needed, the channel must be left open. The rights off passage and of anchorage are common rights, but the former from necessity is paramount, that both rights may be reasonably-enjoyed. Both may be exercised, but neither can lawfully b& destroyed.

A sailing vessel in ascending a river may occupy the whole channel if necessary, and a steamer astern must so remain unless it may pass her safely ; but when the former comes to anchor, the steamer has the paramount right of passage, and the channel must be left open if possible.

*468 So a traveler upon a highway has the paramount right to pass along, and teams standing and obstructing the way must move to 'give reasonable chance for passage.

Frozen navigable rivers are public highways, and the traveler ordinarily has the paramount right of passage as necessarily incident to the reasonable enjoyment of his right, but it must be exercised in common with such uses as the frozen surface of the river is adapted to. One such use is the harvesting of ice, a use that may impede travel. Both are common rights, and both may be lawfully exercised ; but both cannot be enjoyed at the’ same spot at the same time, because the one may be there destructive -of the other, so that it may be reasonable for that use giving the larger public benefit to restrict other uses to a narrower compass, but it cannot lawfully monopolize the whole right to the utter destruction of all other rights.

Ice gathering has become a remunerative and useful industry, and is of great benefit to the public. The nature of the business ’necessarily requires that it should not be subjected to a paramount right of travel that may destroy its reasonable enjoyment. Both Ice gatherers and travelers are partakers in a common right. Neither has such a paramount right as to permanently and entirely extinguish that of the other; but both may exercise their right reasonably under all the circumstances surrounding their conduct.

If the public has appropriated a particular portion of the ice of a stream or pond, and has worn a well beaten track upon the same, would it be reasonable for the ice gatherer to interrupt such use ? So if the ice gatherer has appropriated and marked his ice fields, leaving the traveler room for passage, would it be reasonable for the traveler to go upon it and defile it? Both uses of the ice are lawful, but neither may wholly exclude the other. Both cannot have the possession and use of the same ice for different purposes, although both have a common right to it so long as it remains unappropriated by either. The taker of water from a stream may not interfere with the navigation of it; but the harvester of ice obstructs the public highway at that place, so the one can no more take the whole ice and destroy the public highway, than the other without legislative authority could *469 divert the stream and leave its bed dry and unnavigable. Courts may declare the relative rights of persons, but they cannot extinguish them.

The plaintiff’s servant had no nee.d to enter upon the defendants’ ice field, and he is .chargeable with notice of the dangerous character of the spot, and for his imprudence in so doing the plaintiff is not entitled to recover.