that it is the fluctuation of the water, as shown by its regular rise and fall, under the influence of the tide, and not the proportion of salt water to fresh, that determines the point in a river at which its navigable character ceases. It was so decided in the Supreme Court of the United States with reference to the Mississippi River at New Orleans; 1 in Maine, in respect to the Penobscot River at Bangor; 2 and in Massachusetts, as to a portion of the Mystic River where the rise and fall of the water was two feet and the stream only about the same number of feet deep at low tide.3 In the recent English case of Reece v. Miller, it appeared that the water of the river Wye was not salt at the spot in question, and that in ordinary tides it was unaffected by any tidal influence, but that, upon the occasion of very high tides, the rising of the salt water in the lower parts of the river dammed back the fresh water, and caused it to rise and fall with the tide. It was held that the right of the Crown and the public right of fishery did not apply to the part of the river affected by the tide only under such circumstances or when the action of the tide was reinforced by a strong wind. § 45. A fresh-water river, like a tidal river, is composed of the alveus, or bed, and the water; but it has banks instead of shores.5 The banks are the elevations of land which confine the waters in their natural channel when they rise the highest and do not overflow the banks; and in that condition of the water the banks, and the soil which is permanently submerged, form the bed of the river. The banks 5 See ante, § 41, note. 6 Howard v. Ingersoll, 13 How. (U.S.) 381, 391, 427; 17 Ala. 780; Houghton v. The C. D. & M. R. Co., 47 Iowa, 370; Haight v. Keokuk, 4 Iowa, 199, 212; Stone v. Augusta, 46 Maine, 127, 137; Alabama v. Georgia, 23 How. 506. 7 Ibid.; 13 How. (U. S.) p. 415. In distinguishing the banks from the permanent bed of the river, the line is determined by examining the bed and banks, and ascertaining where the are a part of the river-bed,' but the river does not include lands beyond the banks, which are covered in times of freshets or extraordinary floods, or swamps or low grounds which are liable to overflow, but are reclaimable for meadows or agriculture, or which, being too low for reclamation, though not always covered with water, may be used for cattle to range upon, as natural or unenclosed pasture.2 Fresh rivers, although not subject to the daily fluctuations of the tide, may rise and fall periodically at certain seasons, and thus have defined high and low-water marks. The lowwater mark is the point to which the river recedes at its lowest stage. The high-water mark is the line which the river impresses upon the soil by covering it for sufficient periods to deprive it of vegetation and to destroy its value for agriculture.1 3 § 46. Fresh-water streams which are not a common passage are private property, and the title to the bed of the river ad filum aquae is in the riparian proprietors in severalty and not in common; 5 they own the islands which form in presence and action of the water are so common and usual, and so long continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as in respect to the nature of the soil itself. Ibid., per Curtis, J., pp. 427, 428; McCulloch v. Wainwright, 14 Penn. St. 171. 199. Press, 18 La. 125, 278; Lacy v. Green, 84 Penn. St. 514; Gavit v. Chambers, 3 Ohio, 495. 5 Rex v. Wharton, Holt, 499; 12 Mod. 510; Carter v. Murcot, 4 Burr. 2162; King v. King, 7 Mass. 499; Lunt v. Holland, 14 Mass.; Dearfield v. Arms, 17 Pick. 41; Knight v. Wilder, 2 Cush. 200; Seneca Nation v. Knight, 23 N. Y. 498; Woodman v. Spencer, 54 1 Ibid.; Haight v. Keokuk, 4 Iowa, N. H. 507; Adams v. Barney, 25 Vt. 2 Ibid.; 13 How. (U. S.) p. 415. 3 13 How. pp. 417, 415, 428. 4 Howard v. Ingersoll, 13 How. 381; Houghton v. The C. D. & M. R. Co., 47 Iowa, 370; Musser v. Hershey, 42 Iowa, 356; McCullough v. Wainwright, 14 Penn. St. 171; Stover v. Jack, 60 Penn. St. 339; Wainwright v. McCullough, 63 Penn. St. 66. See The Batture, Am. State Papers, vol. 17, p. 90; Public Lands, vol. 2, p. 90, et seq.; Municipality No. 2 r. Orleans Cotton 225; Jackson v. Louw, 12 Johns. 252; Ball v. Slack, 2 Whart. 538; Coovert v. O'Conner, 8 Watts, 470; Barclay Railroad Co. v. Ingham, 36 Penn. St. 194; Poor v. McClure, 77 Id. 214; Bradford v. Cressey, 45 Maine, 9; Poor v. McClure, 77 Penn. St. 214; Cates v. Waddington, 2 McCord (S. C.) 580; McCullough v. Wall, 4 Rich. (S. C.) 68; Noble v. Cunningham, McMullan (S. C.) 289; Hayes v. Bowman, 1 Rand. (Va.) 417; Home v. Richards, 4 Call, 441; Smith . In the stream,1 and have the exclusive right of fishing; 2 and if the banks on both sides of the river belong to the same person, he owns the entire river-bed according to the extent of his lands in length. There is great conflict of authority with respect to the large rivers and parts of rivers which, being navigable in fact, resemble tidal rivers, and, being fresh, partake of the nature of the small unnavigable streams which feed them. Where a fresh navigable river is held to be private property, the Crown and the public gram, 7 Ired. (N. C.) 175; Ingraham v. Treadgill, 3 Dev. (N. C.) 59; Camden v. Creel, W. Va. 365. 1 Brickett v. Morris, L. R. 1 H. L. Sc. 47; Wishart v. Wyllie, 1 Macq. H. L. 389. 2 Ibid. 3 Wadsworth v. Smith, 11 Maine, 278, 281. The ground on which this rule is founded is thus explained in the dissenting opinion of Redfield, J., in Buck v. Squires, 22 Vt. 484, 494: "The rule itself is mainly one of policy, and one which to the unprofessional might not seem of the first importance; but it is at the same time one which the American courts, especially, have regarded as attended with very serious consequences, when not rigidly adhered to; and its chief object is, to prevent the existence of innumerable strips and gores of land, along the margins of streams and highways, to which the title, for generations, shall remain in abeyance, and then, upon the happening of some unexpected event, and one, consequently, not in express terms provided for in the title deeds, a bootless, almost objectless, litigation shall spring up to vex and harass those, who in good faith had supposed themselves secure from such embarrassment. It is, as I understand the law, to prevent the occurrence of just such contingencies as these, that in the leading, best reasoned, and best considered cases upon this subject it is laid down and fully established that courts will always extend the boundaries of land deeded as extending to and along the sides of highways and fresh-water streams, not navigable, to the middle of such streams and highways if it can be done without manifest violence to the words used in the conveyance. And, to have this rule of the least practical importance to cure the evil which it is adapted to remedy, it must be applied to every case, where there is not expressed an evident and manifest intention to the contrary, one from which no rational construction can escape. The rule, to be of any practical utility, must be pushed somewhat to the extreme of ordinary rules of construction, so as to apply to all cases, when there is not a clearly expressed intention in the deed to limit the conveyance short of the middle of the stream or way. If it is only to be applied like the ordinary rules of construction as to boundary, so as to reach, as far as may be, the clearly formed idea in the mind of the grantor at the time of executing the deed, it will ordinarily be of no utility as a rule of expediency or policy. For in ninety-nine cases in every hundred, the parties, at the time of the conveyance, do not esteem the land covered by the highway of any importance either way; hence, they use words naturally descriptive of the prominent idea in their minds at the time, and in doing so, define the land which it is expected the party will occupy and improve." have no rights in it which are not connected with the navigation.1 § 47. Bracton, who wrote in the thirteenth century, and is the earliest English authority upon this question, says that of natural right flowing water, the air, the sea, and the shores of the sea are common property; that all rivers that flow perpetually are public, and that the right of fishing therein and the use of the river banks are public also.2 This, though not the modern common-law rule, corresponds with the doctrine of the civil law, and the phraseology is substantially the same as that of the Institutes. No dis 1 Orr Ewing v. Colquhoun, 2 App. Cas. 839, 871; Binney's Case, 2 Bland, 99, 125; Adams v. Pease, 2 Conn. 483; Ross v. Faust, 54 Ind. 471; Braxton v. Bressler, 64 Ill. 488; Berry v. Snyder, 3 Bush, 266, 285. A right of public passage acquired over a highway by prescription does not authorize the public authorities to quarry stone, for the repair of other highways, in the bed of a river spanned by a bridge which forms part of the highway in question. Overman v. May, 35 Iowa, 89; Commissioners v. Beckwith, 10 Kansas, 603. 2 The passages in Bracton (lib. I. c. 12, fol. 7, 8) are as follows: "Naturali vero jure communia sunt omnia haec, aqua profluens, aer et mare, et littora maris, quasi maris accessoria. Publica vero sunt omnia flumina et portus. Ideoque jus piscandi omnibus commune est in portu et in fluminibus. Riparum etiam usus publicus est de jure gentium, sicut ipsius fluminis. Itaque naves ad eas applicare, funes arboribus ibi natis religare, onus aliquod in iis reponere, cuivis liberum est, sicut per ipsum fluvium navigare, sed proprietas earum est illorum quorum prediis adhaerent, et eadem de causa arbores in eisdem natae eorundem sunt; et haec intelligenda sunt de fluminibus perhennibus, quia tempo ralia possunt esse privata." These passages are translated in Sir Travers Twiss's edition of Bracton (vol. i., 57) as follows: "Of natural right all these things are common flowing water, air and sea, and the shores of the sea, as being as it were approaches to the sea. All rivers and ports are public, and accordingly the right of fishing in a port and in rivers is common to all persons. The use of the banks is also public by the right of nations, as of the river itself. It is free to every person to moor ships there to the banks, to fasten ropes to the trees growing upon them, to land cargoes and other things upon them, just as to navigate the river itself; but the property of the banks is in those whose lands they adjoin; and for the same cause the trees growing upon them belong to the same persons; and this is to be understood of perennial rivers, because streams which are temporary may be property." 3 See Inst. lib. 2, 1, §§ 1, 2, 5; Royal Fishery of the Banne, Sir J. Davies, 149, 150; Blundell v. Catterall, 5 B. & Ald. 268, 304; Bagott v. Orr, 2 Bos. & P. 472. Bracton does not here follow the civil law, for while he says that the use of the sea, etc., are common, he does not add the remain der of the sentence from the civil law, tinction is here drawn between those rivers which are and those which are not navigable in fact. The passage seems to show either that the rules of the common and civil law were the same at this early period, or that Bracton, finding the subject undefined in the law of England, supplied the deficiency, as he was wont to do, by borrowing from the Roman code.1 that the property in these things cannot be taken to belong to any one. See Hall on the Seashore (2d ed.), 104, 105. The Roman law declared navigable rivers to be so far public property that a free passage over them was open to everybody, but distinguished between rivers and the sea, the former being classed among res publicae, and the latter among res communes. Just. Inst. lib. II. tit. 1, §§ 1, 2; Dig. 43, 12; 2 Domat. bk. I. tit. 8, §§ 1, 2; 1 Phillimore's Int. Law, §§ 155-6; Vattel, Droit des Gens, liv. II. c. 9, §§ 126-130; c. 10, §§ 132-134; Puffendorf, De Jur. Nat. et Gen. lib. III. c. 3, §§ 3-6; Polson, Law of Nations, § 5; 1 Halleck Int. Law, c. 6, p. 147. As to the authority of Bracton, see 2 Reeve's History of the English Law (3d ed.), 88, 282; Crabb's History of the English Law, 157, 158; 1 Black. Com. 72; 4 Id. 425; Güterbock's Bracton, Preface; King v. Yarborough, 3 Dow & Clark, 178, 187. Mr. Reeve (p. 88 above) says: "The familiarity with which Bracton recurs to the Roman code has struck many readers more forcibly than any other part of his character; and some have thence pronounced a hasty judgment upon his fidelity as a writer on English law. But the passages to which such persons take exception, if put together, would perhaps not fill three whole pages of his book; and it may be doubted whether they are such as can always mislead the reader. Upon a second consideration of those places where the Roman law is stated with most confidence, it will be seen that it is rather alluded to for illustration and ornament, than adduced as an authority, though it is visible that Bracton, with all his endeavors to give form and beauty to our own law, by setting forth its native strength to advantage, did not refuse such helps as could be derived from other sources to improve and augment it." Mr. Crabb (p. 158) goes farther, and says that it is evident, from an attentive perusal of Bracton's works, that they contain nothing but what has been admitted by legal authorities into English jurisprudence. In Blundell v. Catterall, 5 B. & Ald. 268, Best, J., who differed from the majority of the court as to the public right of bathing in the sea, said, with reference to the above passage from Bracton: "Bracton has not stated this as civil law; he has made it part of his book De Legibus et Consuetudinibus Angliae. He was Chief Justice of England in the reign of Henry the Third; and Lord Hale (Hist. of the Common Law, c. 7) says, that in his time the common law was much improved, and the pleadings were more perfect and orderly than in any preceding period of our history. Surely such a man is no mean authority for what the common law was at the time he wrote.... Bracton speaks not of newly-made rivers, but of such as were always navigable, and the banks of which had been as open to the public as their waters. This I take to be the law with all inland navigations in the reign of Henry the Third. These, like the sea and its shores, were then the property of the public, |