CHAPTER III. RIVERS. SECTION. 41. River and water course defined. 42. Navigable or tidal rivers. 43. What streams are navigable and public. 44. A river is navigable and public at common law as far as the water is ordinarily ponded back by the tide. 45. Banks and shores of rivers. 46. Property in fresh-water streams and rivers. 47. Navigable fresh-water rivers. - Bracton. 48. Ibid.. Case of the Royal Fishery of the Banne. 49. Ibid. De Jure Maris. 53-55. Ibid. 56-58. Ibid. The rule applicable in this country. The common-law rule adopted in New England and other States. 66, 67. Ibid. — The effect of decisions respecting the admiralty jurisdiction. 76. Late decisions in the Western States limit private ownership to the margin of the river. SECTION. 77. What is the river under this rule. 78. Unnavigable streams in the West. 79. Lakes and ponds. 80, 81. Ibid. The common-law rule as to property in them. 82-83. Ibid. The rule in this country. § 41. A river is a running stream of water pent in on either side by banks, shores, or walls; and it bears that name as well where the waters flow and reflow with the tide as where the current is always in one direction. Every river consists of: (1) the bed; (2) the water; (3) the banks or shores;2 and it also has a current.3 It is a river or water course from the point where the water comes to the surface and begins to flow in a channel until it mingles with the sea, the arms of the sea, lakes, etc. It may sometimes be dry, but in order to be within the above definition it must appear that the water usu 4 1 Callis on Sewers, 77; Woolrych on Waters, 31; Tenterden, C. J., in Rex v. Oxfordshire, 1 B. & Ad. 289, 301; Rex. v. Trafford, 1 B. & Ad. 874, 887; 8 Bing. 204; Queen v. Derbyshire, 2 Q. B. 745, 756; Rex. v. Whitney, 3 Ad. & El. 69; 1 H. & N. 147; 7 C. & P. 208; Abraham v. Great Northern Railway Co., 16 Q. B. 586, 597; Menzies v. Breadalbane, 3 Wilson & Shaw, 235, 243; Long v. Boone County, 36 Iowa, 60. 2 "Shore" is strictly applicable only to the space between ordinary high and low-water mark in a tidal river, but it is sometimes used with reference to a fresh river, or lake, either as synonymous with bank, or as denoting that portion of the bank which touches the margin of the stream at low water. See Handly v. Anthony, 5 Wheat. 374, 385; Dutton v. Strong, 1 Black, 23, 32; Child v. Starr, 4 Hill, 369, 375, 380; Stone v. Augusta, 46 Maine, 127, 137; McCulloch v. Wainright, 14 Penn. St. 171, post, § 45; Lacy v. Green, 84 Penn. St. 514. A fresh river “has ripam, but not littus." Per Walworth, Ch., in Child v. Starr, 4 Hill, 369, 375. "The bank and the water are correlative. You cannot own one without touching the other." Per Cowen, J., in Starr v. Child, 20 Wend. 149, 152. 3 State v. Gilmanton, 9 N. H. 461; 14 N. H. 467. 4 Horne v. Mackenzie, 6 Cl. & Fin. 628; Dudden v. Clutton Union, 11 Ex. 627; Rawstron v. Taylor, Id. 369; Wood v. Waud, 3 Ex. 748; Regina v. Metropolitan Board of Works, 3 B. & S. 710; Taylor v. St. Helen's Co., 6 Ch. D. 264; Gallup v. Tracy, 25 Conn. 16. As to river-water flowing into an arm of the sea, see Horne v. Mackenzie, 6 Cl. & Fin. 628; post, § 44, note. ally flows in a particular direction, and has a regular channel, with bed, banks, or sides. Whether it does so flow is a question of fact for the jury.2 The bed, which is a definite and commonly a permanent channel, is the characteristic which distinguishes these waters from mere surface drainage, flowing without a defined course or certain limits, and from water percolating through the strata of the earth, both of which are not subject to riparian rights, but form part of the realty and belong exclusively to the owner thereof.3 The fact that these waters have a current gives rise to questions relating to the obstruction and acceleration of the water which do not arise in the case of still waters, like lakes and ponds. A stream necessarily involves the idea of a current ; 4 and a statute which provides for bridges over streams separating towns confers no authority to construct bridges over lakes, bays, or marshes, in which the water has no regular and perceptible flow.5 § 42. Those rivers and parts of rivers in which the tide ebbs and flows are known as "navigable" rivers, and by the common law they are vested prima facie in the Crown. 1 Chasemore v. Richards, 7 H. L. Cas. 349; 5 H. & N. 983; 2 H. & N. 168; Rawstron v. Taylor, 11 Exch. 369; Luther v. Winnesimmet Co., 9 Cush. 171; Ashley v. Wolcott, 11 Cush. 192, 195; Parks v. Newburyport, 10 Gray, 28; Flagg v. Worcester, 13 Gray, 601; Dickinson v. Worcester, 7 Allen, 19; Wheeler v. Worcester, 10 Allen, 591; Gannon v. Hargadon, 10 Allen, 106; Bates v. Smith, 100 Mass. 181; Emery v. Lowell, 104 Mass. 13; Morrill. Hurley, 120 Mass. 99; State v. Gilmanton, 14 N. H. 467; Bangor . Lansil, 51 Maine, 521; Greeley. Maine Central Railroad Co., 53 Maine, 200; Morrison V. Bucksport Railroad Co., 67 Maine, 353; Buffum v. Harris, 5 R. I. 243; Goodale r. Tuttle, 29 N. Y. 459; Earl r. De Hart, 1 Beasley, 280; Bowlsby e. Speer, 31 N. J. L. 351; Shields v. Arndt, 3 Green Ch. 234; Beard v. Murphy, 37 Vt. 99; Swett v. Cutts, 50 N. H. 439; Kauffman v. Griesemer, 26 Penn. St. 407; Gillham v. Madison Railroad Co., 49 Ill. 484; Hoyt v. Hudson, 27 Wis. 656; Eulrich v. Richer, 37 Wis. 226; 41 Wis. 318; Barnes v. Sabron, 10 Nev. 217; Imler v. Springfield, 55 Mo. 119; Jones v. Hannovan, Ibid. 462; New Albany Railroad Co. v. Peterson, 14 Ind. 112; Greencastle v. Hazelett, 23 Ind. 186; Taylor v. Fickas, 64 Ind. 167; Schlichter v. Phillipy, 67 Ind. 201. 2 Ibid.; Eulrich v. Richer, 37 Wis. 226; 41 Wis. 318. 3 Taylor v. Fickas, 64 Ind. 167, and above authorities. Joliet Railroad Co. v. Healy, 94 Ill. 416, 421. 5 In re Freeholders, 68 N. Y. 376, Hence, as was said in an early case, "all the navigable rivers in England appertain to the king." They are arms of the sea, and the king has them because they partake of its nature. This ownership is for the public benefit,3 and in this country each state, as sovereign, has succeeded to the rights which the king formerly possessed in such rivers and in the soil beneath. The high and low-water marks which define the shores are determined by the same rules as in the case of the shores of the sea and the arms of the sea, and the rights of the public extend to ordinary high-water mark.5 Islands which are formed in these rivers belong to the king, and in this country to the respective States as sovereign powers, and the rights of navigation and fishery in them, which are prima facie common to all, cannot be impaired by a grant from the Crown at common law, but may be by a State within the limits of which the waters lie, if intercommunication between different States is not thereby affected. 8 § 43. The presence of the tide is strong prima facie evidence that a river is public and useful for navigation. It is ployed in legal phraseology, are thus defined by Gray, C. J., in Commonwealth v. Vincent, 108 Mass. 441, 447: "The term 'navigable waters,' as commonly used in the law, has three distinct meanings: 1st, as synonymous with tide waters,' being waters, whether salt or fresh, wherever the ebb and flow of the tide from the sea is felt; or, 2d, as limited to tide waters which are capable of being navigated for some useful purpose; or, 3d (which has not prevailed in this Commonwealth), as including all waters, whether within or beyond the ebb and flow of the tide, which can be used for navigation"; citing Commonwealth. Chapin, 5 Pick. 199; Rowe v. Granite Bridge Co., 21 Pick. 344; Murdock v. Stickney, 8 Cush. 113, 115; Attorney General r. Woods, 108 Mass. 436; Waters v. Lilley, 4 Pick. 145, 147; Genesee Chief v. Fitzhugh, 12 How. 443; The Daniel Ball, 10 Wall. 557. See also, Mayor of Colchester v. Brooke, 7 Q. B. 339, 374; The Montello, 20 Wall. 430, 442; Abraham v. Great Northern Railway Co., 16 Q. B. 586, 598. In those Western States, where there are no tidal waters, the word "navigable" is not commonly employed in the technical sense. See Hickok r. Hine, 23 Ohio St. 523. Rex. r. Trinity House, 1 Sid. 86; s. c. 1 Keb. 331. Royal Fishery of the Banne, Sir John Davies, 149. 3 Ante, § 17. Ante, § 32. 5 Ante, § 27. 6 Hale, De Jure Maris, c. 6, ii.; Callis on Sewers, 45. 7 Middletown v. Sage, 8 Conn. 221; Tracy v. Norwich Railroad Co., 39 Conn. 382; Hopkins Academy r. Dickerson, 9 Cush. 544, 550. not, however, conclusive. In many small creeks and inlets of the sea private property may exist. The extent to which a river, whether its waters are salt or fresh, is used for navigation, affords the strongest evidence of its navigable capacity. If the channel is broad and deep and adapted to the purposes of commerce, it is a natural conclusion that it is a public navigation ; but if it is a small creek, navigable only at exceptional and extraordinary tides, or at certain states of the tide, and then only for a short time and by very small boats, its inadaptability for general use is strong, if not conclusive, evidence against the existence of a public right.1 1 See Miles v. Rose, 5 Taunt. 706; Vooght . Winch, 2 B. &. Ald. 662. In the early case of Commonwealth v. Charlestown, 1 Pick. 180, 186-188, Parker, C. J., said: "By the common law, the property of the sovereign is said to extend to all places where the sea ebbs and flows, whether such places are navigable or not; but it is probable the usages of our country have given a reasonable limitation to this doctrine, confining the public right to what may be of public use; so that in many little creeks into which the salt water flows, but which are incapable of being navigated at all, private property may be maintained. This is undoubtedly the case with many of the creeks which run through our extensive marshes, over which small bridges are thrown for the convenience of removing the hay; and yet whenever these streams are large enough for the passage of boats, and gondolas, or lighters, and pass through the lands of several proprietors, no one can obstruct them, even in his own grounds, unless he has acquired a right by prescription; which probably is the case with many of them.. There is but one principle for judicial courts to be governed by, and that is, to consider as public property all those inlets of the sea which are capable of sustaining vessels of any description, with their loading, for purposes really useful to trade or agriculture. It has been urged, that the actual use of them for such purposes is necessary to give them the character of public property; but it is obvious there can be no such qualification of the principle at common law; for it would go to allow the occupation, by individuals or corporations, of many of the most important public privileges, in the early settlement of the country, before ports and places of deposit should become valuable." It is now settled that the public right is limited to those streams and inlets which are capable of public use. Rowe v. Granite Bridge Co., 21 Pick. 344; Charlestown v. County Commissioners, 3 Met. (Mass.) 202; Attorney General v. Woods, 108 Mass. 436; 9 Gray, 519, note; The Montello, 20 Wall. 430, 442, 443; United States v. New Bedford Bridge, 1 Wood. & M. 401, 487; Weathersfield v. Humphrey, 20 Conn. 218; Groton v. Hurlburt, 22 Conn. 178; Burrows v. Gallup, 32 Conn. 501; Brown v. Preston, 38 Conn. 219; Glover v. Powell, 10 N. J. Eq. 211; Flanagan v. Philadelphia, 42 Penn. St. 219. 2 See per Bailey, J., in Rex v. Montague, 4 B. & C. 598. 3 Rowe . Granite Bridge Co., 21 Pick. 344; Attorney General v. Woods, 103 Mass. 436. 4 Colchester v. Brooke, 7 Q. B. 339. |