The constitution of the state of Washington provided for the appointment of a commission to establish harbor lines and to lease the right of building wharves, and it was held that the owner of land abutting upon the sea or its arm, has no right to erect wharves in front of his land below high-water mark. And in the same case. the court said: "Riparian proprietors on the shore of navigable waters of the state have no special or peculiar rights therein as an incident to their estate. To hold otherwise would be to deny the power of the state to deal with its own property as it may deem best for the public good. If the state cannot exercise its constitutional right to erect wharves and other structures upon its public waters, in aid of navigation. without the consent of adjoining owners, it is obviously deficient in the powers of self development, which every government is supposed to possess." The Washington court professed to follow the common law rule. But its decision went further than the weight of authority under that rule.

Niles, 6 La. 77. But the property of the banks of the Mississippi river is in the abutting owner, the public having only an easement therein. De Ben v. Gerard, 4 La. Ann. 30. And the public easement is confined to the use of the bank for purposes incident to navigation. Lyons V. Hinckley, 12 La. Ann. 655. Hence a city has no right to permit the construction of buildings not designed to promote navigation. Leonard v. Baton Rouge, 39 La. 275, 4 So. 241. And a wood yard does not come within that category. Carrollton v. R. Co. v. Winthrop, 5 La. Ann. 36.

Occupancy of the banks for public use cannot afford a basis for prescription, because such Occupancy is consistent with the abutter's title. Remy v. Municipality No. 2, 11 La. App. 148. If more land is taken than is needed for public use for levees, highways, etc., the riparian owner may seek for a reduction. Louisiana Ice Mfg. Co. v. New Orleans, 43 La. Ann. 217, 9 So. 21. The use of land lying between the levee and the river is in the public and adjacent property cannot be assessed for opening a street thereon. But if the levee be advanced nearer the river, the batture becomes private property, which, if taken for public use, should be paid for, and an assessment for that purpose is valid. Re Municipality No. 2, 7 La. Ann. 76. Note Hartman v. Tresise, 4 L. R. A. (N. S.) 874.

(5) Art. 15 Const. Wash.

(6) Eisenbach v. Hatfield, 2 Wash. 236, 26 Pac. 539, 12 L. R. A. 632.

(7) Eisenbach V. Hatfield, 12 L. R. A. (Wash.) 642, citing Galveston v. Menard, 23 Tex. 349.

would seem to justify, and in a later case involving the consideration of riparian rights which had vested before the adoption of the state constitution, this was apparently recognized. If the court had said that the riparian proprietor has no rights. which are not subordinate to public easements incident to navigation, the proposition would have the support not only of the civil law, but perhaps the weight of common law authority. A right thus qualified might be very valuable both to the possessors and to the public at large, and to deny it altogether seems unnecessarily to impede the use of nature's natural forces. But the the right of access is not the same thing as the right to wharf out to navigability, and some states that deny the latter right altogether, declare that the former cannot be taken without compensation.10

(8) New Whatcom v. Fairhaven Land Co., 24 Wash. 501, 54 L. R. A. 190. In Eisenbach v. Hatfield, Stiles J. dissenting from the opinion of the court said: "The court has found that upon authority, a riparian proprietor upon the shore of the sea or its arms, has no rights as against the state or its grantees to continued access to the water to extend wharves in front of his land below high water mark. In the language of Mr. Lewis, in his work on Eminent Domain, p. 83, it has done so by a narrow and technical course of reasoning, based upon the fact that the title to the soil is in the state or public and has not as I conceive accepted the great weight of authority in England and America. To my mind in reaching its conclusions, it has completely ignored the prime common source of the state's title and the riparian claim to access which is that the navigable waters are natural public highways."

(9) Mr. Gould says: Riparian owners upon navigable fresh rivers and lakes, may construct in shoal water in front of their land, wharves, piers, landings and booms in aid of and not obstructing navigation. This is a riparian right, being dependent upon title to the bank and not upon title to the river bed. Its exercise may be regulated or prohibited by the state, but so long as it is not prohibited it is an implied right derived from the passive or implied license by the public. As it does not depend upon title to the soil under water it is equally valid in the states, in which the river beds are held to be public property, and in those in which they are held to belong to the riparian owners. The legislatures may authorize the extension of such structures beyond low water mark, but if not sanctioned by the legislature they are illegal so far as they interfere with or limit the right of navigation. Gould Waters 176, cited Lewis v. Portland, 25 Or. 133, 42 Am. St. Rep. 772, 35 Pac. 256, 22 L. R. A. 736.

(10) This is true in Illinois. In Revell v. People, 177 Ill. 468, 43 L. R. A. 790, the court denied the right of the owner of land abutting

on Lake Michigan to erect wharfs in the water, distinguishing the right of the riparian owner on the Mississippi on the ground that he owned to the middle of the stream and would therefore only be erecting wharfs on his own land, which would be lawful as long as he did not interfere with navigation. In this case the court declared that the shore owner had only two common law rights, viz., that of accretion and of access. "The shore owner also has the right of access from his land to the lake; in other words the right to pass to and from the waters of the lake, within the width of his premises as they bordered on the lake. This right cannot be diverted or taken from the shore owner, without just compensation betherefor. ing made These are common law rights, and as we understand the law they are the only common law rights possessed by the shore owner." See also Middleton v. Pritchard, 4 Ill. 510; Ensminger v. People, 47 Ill. 384; Cobb v. Lincoln Park Commissioners, 202 Ill. 427, 63 L. R. A. 264. Compare the last case with Brookhaven v. Smith, 188 N. Y. 74, 80 N. E. 665, 9 L. R. A. (N. S.) 326, in which the New York court arrived at a conclusion exactly opposite to that of the Illinois court, the facts being substantially the same in each case. Connecticut the right to wharf out to navigable water is recognized, although the ownership of the soil under the water is in the state, but the right is subject to the provision that the wharf does not interfere with navigation. East Haven v. Hemingway, 7 Conn. 186; Simons v. French, 25 Conn. 346; Mather v. Chapman, 40 Conn. 382; State v. Sargent, 45 Conn. 358; Prior v. Swartz, 62 Conn. 132, 18 L. R. A. 668; Lane v. New Haven Harbor, 70 Conn. 694, and this is the general rule in the United States, Madison v. Mayers, 97 Wis. 399, and note to S. C. 40 L. R. A. 645. Hunter v. Sandy Hill, 6 Hill, 407; Backus v. Detroit, 49 Mich. 110.

In

out the consent of the owner, and in return for the privilege of landing, a reasonable compensation may be demanded." It is not to be supposed however, that the right to land in the case of shipwreck, would be subject to the will of the riparian owner, or that he would have the right to exact a payment for the use of his shore by those who took refuge on it to escape from drowning.' That he should have a right to recover for unnecessary injury to crops or other property seems reasonable, and such no doubt is the law.13 It is in connection with log driving that the use of the shore by those engaged in navigation is perhaps most frequently found

12

(11) Bainbridge v. Sherlock, 29 Ind. 364, 95 Am. Dec. 644. Note Hartman v. Tresise, 4 L R. A. (N. S.) 877.

(12) RIGHT OF WHARF OWNER AND OF MARINERS IN CASE OF PERIL. The case of Dutton v. Strong, 66 U. S. 29, 17 L. Ed., 29, upholds the right of the riparian owner to protect his wharf by cutting the lines and setting adrift a boat which has been moored to the wharf without the owner's consent during a storm. The wharf it appears was about to give way and in order to save it, the owner cut the hawser which fastened the boat to it. As a result the boat was wrecked. The owner of the boat brought suit to recover the damage done. In denying the liability of the wharf owner the court said: "Piers or landing places, or even wharfs, may be private, or they may be in their nature public, although the property may be in an individual owner, or, in other words, the owner may have the right to the exclusive enjoyment of the structure, and to exclude all other persons from its use, or he may be under obligations to concede to others the privilege of landing their goods, or of mooring their vessels there upon the payment of a reasonable compensation as wharfage; and whether they are the one or the other may depend in case of dispute upon several considerations, involving the purpose for which they were built, the uses to which they have been applied, the place where located and the nature and character of the structure. Undoubtedly a riparian proprietor may construct any one of these improvements for his own exclusive use and benefit and if not located in a harbor or other usual resting place for vessels, and if confined within the sea or the unnavigable waters of a lake and it had not been used by others, or held out as intended for such use, no implication would arise in a case like the present, that the owner had consented to the mooring of the vessel to the bridge pier." One cannot help wondering if the decision would have been the same in case passenger or crew had been drowned as a result of the cutting of the hawser. See also Heaney v. Heaney, 2 Den. 625.

(13) Weise v. Smith, 3 Or. 445, 8 Am. Rep. 621; Haines v. Hall, 17 Or. 165, 20 Pac. 831, 3 L. R. A. 609; Hunter v. Grand Ronde Lumber Co., 39 Or. 451, 65 Pac. 598.

convenient if not absolutely necessary. On the small streams it is the practice for the log-drivers to walk along the shore and to go to and from the logs in the water as occasion demands. The right to do this has been claimed as a matter of common law. But save in Louisiana it does not seem to have been recognized as a legal right.1 Even the Washington court which as we have seen, denied that riparian owners had any peculiar rights as such owners, holds that log drivers have no right to use the banks to assist them in driving their logs to market;15 and that such right must either be acquired by purchase or condemnation proceedings. This is on the theory that the constitutional provision reserving title to the state in land under navigable waters does not apply to streams which are valuable only for floating logs to market during annual freshets,16 and that the fee to the land is in the riparian owner.17 Some states have by statute enlarged the rights of log drivers in the use of the banks,

(14) Haines v. Hall, 17 Or. 165, 3 L. R. A. 609. In Olsen v. Merrill, 42 Wis. 213, the court said: "We of course recognize the position that the navigable character of a stream cannot depend upon trespass upon shore; and that one floating his logs down stream has no right to use the banks of the stream to aid him. We take it that a stream that is of sufficient capacity to float logs, is of sufficient capacity to float some kind of boat or skiff in which the owner may follow his logs. This might sometimes be inconvenient or even dangerous, but the stream is none the less navigable because persons using it are induced by convenience to prefer unlawful to lawful means in aid of the use." In Hooper v. Hobson, 57 Me. 273, "the right of the public in a stream capable of being used for floating logs is not thus to be extended over adjoining land. The water makes and defines the highway. Except during the continuance of an overflow, or in the exercise of those privileges which are given or defined by statute, log owners and river drivers have no right in a floatable stream beyond the boundaries. Their liability to pay damages to riparian owners for travelling upon the banks to propel their logs, is expressly recognized in Brown v. Chadbourne, 31 Me. 9."

and have at the same time provided for the recovery of damages by the riparian owner when the log driver oversteps his rights.18

A review of the authorities leads to the irresistible conclusion, that while the right to the use of the shore land is not absolutely and exclusively in the riparian owners, yet their right is so far exclusive, that other navigators cannot avail themselves of the use of the shore land for ordinary commercial purposes without the consent of the riparian owner save by condemnation proceedings, to establish landings or wharves for public use. So far as the writer's investigation has gone Louisiana seems to be be the only state where the dry shore land is burdened with easements subservient to navigation.

W. A. COUTTS.

Sault Ste. Marie, Mich.

(To be concluded in next week's issue).

In

(18) Mich. Com. Laws. 5081-5098. For the respective rights of log drivers and riparian owners under these statutes and under the common law see note to Coyne v. Mississippi & Rum River Boom Co., 41 L. R. A. 494, also note to Crookston W. P. L. Co. v. Sprague, 64 L. R. A. 986; Smith V. Atkins, 53 L. R. A. 791; Compton v. Hawkins, 90 Ala. 411, 24 Am. St. Rep. 823, 8 So. 75, 9 L. R. A. 387. Louisiana, it was held that when logs were driven by a high wind upon the lands of a riparian owner the latter had no right of action if the owner of the logs did not permit them to remain upon the land an unreasonable length of time after the abatement of the storm. New Orleans & Northeastern Ry. Co. v. McEwen & Murray, 49 La. Ann. 1184, 38 L. R. A. 134. WHARF AND LANDING PRIVILEGES. In Bainbridge v. Sherlock, 29 Ind. 364, it is said, "The river being public and its banks being private, it is not difficult to discover the true foundation of those riparian rights known as wharf rights. It is essential to the successful prosecution of his business, that the navigator shall make frequent landings to load and unload, to receive and discharge passengers, and to receive supplies. But except in case of some peril or emergency of navigation, he cannot thus land without the consent of the riparian owner, and in return for the privilege of landing, a reasonable compensation may be demanded. This is the origin of wharfage," quoted in Compton v. Hawkins, 90 Ala. 411, 9 L. R. A. 387. See note 12. In Washburn on Easements (p. 554) the author says: "In regard to the right to land upon other points of the banks of a navigable stream than those which have in some way become public landings, the law would seem to confine it to cases of necessity, where, in the proper exercise of the right of passage upon the stream of water, it becomes necessary that one should make use of the bank for landing upon or fastening his craft in the prosecution of his passage.' Quoted 9 L. R. A. 387.

"

A maker of a note payable on demand bearing interest at the rate of 8 per cent, per annum, and providing for 8 per cent. interest on interest not paid at maturity, rendered services to the payee during a period extending from a date prior to the execution of the note to nearly seven years thereafter. During the period nothing was credited on the note. Held, that the court, in an action on the note, properly applied the total items of each year's services as a credit on the note on the last day of such

year.

LADD, J.: The defendant gave his promissory note to the plaintiff February 1, 1908, for $291.15. It was payable on demand and bore interest at the rate of 8 per cent per annum, payable annually, and provided that "should any of the interest not be paid when due it shall bear interest at the rate of 8 per cent per annum." The action was begun August 9, 1907, up to which time nothing had been credited on the note. The "answer and counterclaim" averred that the note had been fully paid, that defendant had rendered services for plaintiff as set out in an itemized account extending from December 20, 1897, to October 30, 1906, of the reasonable value of the several items, and prayed for judg ment thereon, and that "the account be ascertained that is due this defendant over and above the amount of the note sued on, and that the charges as they appear in defendant's bill of particulars be deducted from the note as held by the plaintiff as of the date of the items, and for all other legal and equitable relief in the premises, and that an accounting be had between plaintiff and defendant." By way of reply, plaintiff admitted the correctness of the account, but asserted that, as the account was continuous and open, defendant was entitled to interest thereon from six months after the last item only and then at 6 per cent per annum, that he was not entitled to have the items applied as payments on the note until the filing of the answer and counterclaim, and is "not entitled to equitable relief." A jury was waived, and the cause submitted on the pleadings, save that the note was introduced in evidence. The court applied the total of items of each year as a credit on the note on the last day of said year and found there to be due the defendant the sum of $18 26, for which judgment was entered. It will be observed that no issue of fact is presented by the pleadings, and that the action was rightly begun on the law side of the calendar.

Section 3428 of the Code. No error as to the kind of proceedings adopted then appears to have been made, so that the cause might not have been transferred to the equity side of the docket, even though motion that this be done had been filed. Johnston v. Robuel, 104 Iowa, 523, 73 N. W. 1062. But in such a case "either party shall have the right, by motion, to have any issue heretofore exclusively cognizable in equity tried in the manner hereinafter prescribed in cases of equitable proceedings." Section 3435 of the Code. No motion to have the issue heard as in equity was presented, but the answer definitely prayed for equitable relief, in that the items of the account be applied on the note as of their dates, and the right thereto was specifically challenged by the reply. As the issue was thus made, we are of the opinion, in view of the fact that the cause was submitted on the pleadings, that the question was presented to the court whether credit should be applied as an equitable set-off.

The account began in December, 1897, and amounted to but $19 25 prior to the execution of the note, February 1, 1908. This note was matured during the remaining eight years and more of the account. During this period payment for the services as rendered at each of the 85 different times became due and owing the defendant when performed, and the note was payable at each of these several dates until satisfied. It is unreasonable to suppose that the one or the other of the parties would have allowed so long a period to elapse but for the implied understanding that the noninterest-bearing items of account were to be credited on the note. Mutual debts were inextinguishable at the common law, but by the civil law under the doctrine of compensation relief was granted by "the reciprocal acquittal of debts be tween two persons who are indebted the one to the other." "Compensation is the extinction of debts of which two persons are reciprocally debtors to one another, by the credits by which they are reciprocally creditors to one another." 2 Story, Eq. Jur. § 1437. In the work cited the author notes "that, independently of the statutes of setoff, courts of equity, in virtue of their general jurisdiction, are accustomed to grant relief in all cases where although there are mutual and independent debts, yet there is a mutual credit between the parties founded, at the time, upon the existence of some debts due by the crediting party to the other. By mutual credits, in the sense in which the terms are here used, we are to understand a knowledge on both sides of an existing debt due to one party and a credit by the other, founded on and trusting to such debt as a

means of discharging it." Story's Eq. Jur. § 235. In Trent v. Tenn., 3 Doug. 257, Mr. Jutice Buller observed that "wherever, there is a trust between two men on each side, that makes a mutual credit," and Mr. Justice Dallas declared in Key v. Flint, 8 Taunt, 21, that "mutual credit' meant something different from mutual debts. Mutual credit must mean mutual trust." The cases are reviewed

in Greene v. Darling, 5 Mason, 207, 213, Fed. Cas. No. 5,765, summing up thus: "The conclusion which seems deducible from the general current of the English decisions (although most of them have arisen in bankruptcy) is that courts of equity will set off distinct debts where there has been a mutual credit, upon the principles of natural justice, to avoid circuity of suits, following the doctrine of compensation of the civil law to a limited extent. That law went further than ours, deeming each debt sub jure, set off, or extinguished pro tanto; whereas, our law gives the party an election to set off, if he chooses to exercise it; but if he does not, the debt is left in full force, to be recovered in an adversary suit. Since the statutes of setoff of mutual debts and credits, courts of equity have generally followed the course adopted in the construction of the statutes by courts of law, and have applied the doctrine to equitable debts. They have rarely, if ever, broken in upon the decisions at law, unless some other equity intervened, which justified them in granting relief beyond the rules of law, such as has been already alluded to; and, on the other hand, courts of law sometimes set off equitable against legal debts, as in Bottomley v. Brooke (cited 1 T. R. 619). The American courts have generally adopted the same principles, as far as the statutes of set-off of the respective states have enabled them to act." Since the enactment of statutes allowing a set-off or counterclaim to be pleaded in actions at law, the courts of equity have usually followed the law, save when peculiar equities intervene. 2 Story, Eq. § 1437. Such cases are too various for citation. Ordinarily a mere claim or account will not furnish ground for relief. As said by Judge Story, in section 1435 of the work cited: "Independently of the statutes of set-off, courts of equity, in virtue of their general jurisdiction, are accustomed to grant relief in all cases where, although there are mutual and independent debts, yet there is a mutual credit between the parties, founded at the time upon the existence of some debt due by the crediting party to the other. By 'mutual credit,' in the sense in which the terms are here used, we are to understand a knowledge on both sides of an existing debt due, to one party, and a credit by the other

party, founded and trusting to such debt as a means of discharging."

This well describes the situation of the parties in the case before us. No other inference is reasonably to be drawn from the facts disclosed than they were trusting to the services rendered by defendant, concerning which there was no controversy, to satisfy plaintiff's demand. The precise question was before the Supreme Court of Georgia in Meriwether v. Bird, 9 Ga. 594. An action was brought by an administrator on a note. One of the makers set up an account for legal services rendered plaintiff's decedent after the maturity of the note, and the court, after recognizing the plea of setoff as good in bar, referred to the doctrine of set-off under the civil law, and speaking through Lumpkin, J., proceeded: "The rule of that Code has been correctly cited by the learned counsel, from Pothier, namely: If you have a debt due from me, which carries interest, and afterwards become my debtor of a sum which from its nature does not carry interest, my debt will be held to be discharged to the extent of the mutual credit, from the time of such credit taking place, and interest would only be due for the balance, from that time-and the author puts the following illustration: If you are my creditor of a sum of £1,000 for the price of an estate which you have sold and conveyed to me, and afterwards you become sole heir to Peton, and in that quality my debtor for £800, the amount of a loan from me to Peton; from the death of Peton, your demand of £1,000 is to be regarded as acquitted to the amount of £800, and submitting only for the remaking £200, and from the death of Peton the interest will only continue to run upon the remaining £200. Is there anything in our law of set-off which excludes this construction? I know of nothing, and it is so manifestly right that it commends itself to the conscience of every man. Interest is only given by way of damages for the detention of a debt. But there is another principle which would seem to entitle the defendants to the relief which they seek, and that is, in cases of mutual credit, where there is knowledge on both sides of an existing debt due to one party and a credit by the other party, founded on and trusting to such debt, as a means of payment, that the law will so apply it."

Equity will intervene to effect a set-off only when under the strict rules of the law justice cannot be effectuated, and we are of opinion that the record presents such a case. Decisions to the contrary may be found, but in all to which our attention has been directed the defenses or counterclaims were at law,