Ice, from its general use, has come to be a merchantable commodity of value, and the traffic in it a quite important business. It would not be in the interest of peace and good order, nor consistent with legal policy, that such an article should be held a thing of common right, and be left the subject of general scramble, leading to acts of force and violence. In reference to the rule which we here adopt, of assigning to the owner of a bed of a stream property in the ice which forms over it, we may well use, as fitly applying, the language of Hosmer, J., in Adams v. Erase, supra, in speaking of the common-law rule as to the right of Fishery, viz.: 'The doctrine of the common law, as I have stated it, promotes the grand ends of civil society, by pursuing that wise and orderly maxim of assigning to everything capable of ownership a legal and determinate owner."
The views we hold are in accordance with the holding in The State v. Pottmeycr, 33 Ind. 402, that when the water of a flowing stream running in its natural channel is congealed, the ice attached to the soil constitutes a part of the land, and belongs to the owner of the bed of the stream, and he has the right to prevent its removal. See, further, relative to the subject, Myer v. Whitaker, 55 How. Pr. Rep. 376; Lorman v. Benson, 8 Mich. 18; Mill River Woolen Manufacturing Co. v. Smith, 34 Conn. 462; Brown v. Brown, 30 N. Y. 519.
Defendant claims that it committed no trespass in taking the ice, because the ice in the midst of a stream navigable in fact, is naturally an obstruction to navigation, and that anyone has the right, having obtained access independent of the riparian owner, to enter upon the ice and remove it. We said in Braxon v. Bressler, above cited: "Where the river is navigable, the public have an easement or a right of passage upon it as a highway, but not the right to remove the rock, gravel, or soil, except as necessary to the enjoyment of the easement." The same is to be said as to the ice here. But it was not removed as necessary for the enjoyment of the public easement of navigation, - it was for the purpose only of the appropriation of it for defendant's gain.
As to the instruction as to the measure of damages, we think the case is analogous to those where coal is taken from the soil, and that the instruction is sustained by former decisions of this court in those cases: Illinois and St. Louis R. R. and Coal Co. v. Ogle, 92 Ill. 353; McLean County Coal Co. v. Lennon, 91 Id. 561; Illinois and St. Louis R. R. and Coal Co. v. Ogle, 82 Id. 627; McLean County Coal Co. v. Long, 81 Id. 359; Robertson v. Jones, 71 Id. 405.
Perceiving no error in the giving or refusing of instructions by the Circuit Court, the judgment of the Appellate Court is affirmed.
91 Indiana, 134. - 1883.
Elliott, J. - Under the general internal improvement act of 1836, the State, in 1837, for the purposes of constructing a canal, seized land then owned by the heirs of Charles Collett. During that year, and prior to 1842, work was done upon the canal by the State; at the session of the Legislature of the year 1842, a corporation was created named White Water Valley Canal Company, and all the right and title of the State to the land seized was vested in that corporation; the canal was afterwards completed and was operated by the grantee of the State until the year 1865; in December of that year the canal company conveyed its estate in the canal and appurtenances, reserving, however, all water power and all water rights owned by itself or its lessees; the grantee of the canal company leased to the appellant all the unoccupied water on that part of the canal which is upon the land once owned by the Collett heirs; on that land there was a low piece of ground through which the canal passed; upon this low piece, and immediately adjoining the bank of the canal, is a large pond formed by the water thrown from the channel of the canal; on this pond ice formed in the winter of 1878 and 1879, and was cut and appropriated by the appellees, who were the defendants below.
It is within the power of the Legislature to authorize the seizure of the fee, when that estate is required for the public purpose. When the fee is taken, the owner must be awarded, as compensation, the value of that estate. Our cases declare that the act of 1836 authorized the seizure of the fee, and that this was the estate taken by the State and transmitted to the grantees. City of Logans-port v. Shirk, 88 Ind. 563; Cromie v. Board, etc., 71 Ind. 208; Nelson v. Fleming, 56 Ind. 310; Water Works Co. v. Burkhart, 41 Ind. 364. It is not without reluctance that we yield to the rule declared in these cases, but we feel that it has become a rule of property which we should not change. * * *
The title which the appellant acquired was to the canal and its appurtenances. Sheets v. Selden, 2 Wal. 177. If the land on which the ice formed can be deemed an appurtenance, then the State acquired and transmitted it to her grantee. But land can never be appurtenant to land. This old rule, old as the law itself, forbids the conclusion that the land passed as an appurtenance.
The right to flow lands conveys no right to the land itself; it vests a mere easement in the possessor. The right which the canal company had in the land adjoining the channel of the canal was an easement, and nothing more. The pond which formed is not shown to have been a reservoir or basin of the canal, nor to have constituted any part of the channel. All that can be inferred from the use of the low ground by the appellant and its grantors is that there existed a right to overflow it. A prescriptive right can never be broader than the claim evidenced by user. Phear, Rights of Water, 90.
The appellant owns an easement vesting in it a right to do whatever the owner of an easement to overflow another's land may rightfully do; the owners of the fee possess the right to do all acts which a landowner may lawfully do, not inconsistent with, or injurious to, the easement. The former as owner of the dominant estate has all the rights that such an estate confers; the latter all the rights of a owner of land burdened with an easement.