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all rivers that may be navigated by sea vessels, or all that are by nature floatable, we hesitate not to declare that this court, if it should feel itself at liberty, from considerations of public convenience, to assume legislative discretion in the matter, is not likely by any decision to extend the rules which by the common law are applicable to navigable rivers, to any stream above those falls which by nature obstructed the serviceable use of its water for transportation. Above those falls, as below, the right of the public to improve a river, and to use it as a highway, subsists; to that the proprietary right in the soil is subject; but so subject, the proprietary right exists in the owners to whom it has been granted, above the falls at any rate, as we may now safely say."
§ 60. In North Carolina, this rule has frequently been declared by the courts to be inapplicable to the condition of the country.i An early statute of this State provided that where a survey is made upon any navigable waters, the water shall form one side of the survey; and it recognized islands as distinct from the property in the lands adjoining these waters by prescribing the manner of entering and surveying them.2 Under these provisions, all waters, whether fresh or salt, which are capable of navigation by sea-going vessels, are held to be navigable.3 Lands covered by such waters are not subject to entry and grant, under the entry laws of the State ;4 but islands and rocks which are above the surface of the water, are vacant property, and subject to those laws.6 With respect to the right of fishing, it was held in
i Wilson v. Forbes, 2 Dev. 30; In- 74 N. C. 402,407; State v. Tomlinson,
graham v. Threadgill, 3 Dev. 59; Col- 77 N. C. 528.
lins v. Benbury, 3 Ired. 27"; 5 Ibid. * Ibid.; In graham v. Threadgill, 3
118; Smith v. Ingram, 7 Ired. 175; Dev. 59. Gilliam v. Bird, 8 Ibid. 280, 284; Fa- 3 Ibid.
gan C. Armistcad, 11 Ibid. 433; Lewis * Tatum v. Sawyer, 2 Hawks, 226;
i>. Keeling, 1 Jones Law, 299; State Smith v. Ingram, 7 Ired. 175. v. Dibble, 4 Ibid. 107; Ward v. Willis, 6 Jones v. Jones, 1 Hay. 488; Mc
6 Ibid. 183; State v. Glen, 7 Ibid. 321; kenzie v. Hulet, N. C. T. R. 181; 1
Cornelius v. Glenn, Id. 512; Skinner Battle's Dig. 404; Ward v. Willis, 6
B. Hettick, 73 N. C. 53; State v. Pool, Jones, 183.
an early case1 in this State that neither the above statutory provisions, nor the absence of a grant of the fishery from the State, debar the owners of lands adjoining fresh navigable waters from claiming the common-law right of exclusive fishery opposite their lands to the thread of the stream. This appears, however, to be overruled by later adjudications in the same State.9 In Tennessee, which was formerly included within the territory of North Carolina, the same rules prevail as to the ownership of the soil of navigable streams. Navigable waters are here considered to be those which, in the ordinary state of the water, are capable of navigation by vessels commonly used in commerce, whether foreign or inland, steam or sailing vessels; and riparian ownership on such waters is limited to the ordinary low-water mark.3
§ 61. In Virginia, early acts of the legislature prohibited grants of the banks, shores, and beds of rivers and creeks,* and patents for land which form part of the bed of a navigable river are held to be void.5 These provisions seem to apply to navigable waters whether fresh or salt. It is held here, as elsewhere, that a conveyance of land bounded upon an unnavigable stream carries with it the title to the thread of the stream.6
§ 62. The earlier cases in Kentucky tend to reject the common-law rule, and are in favor of limiting the title of the riparian owner to low-water mark.7 But in the recent case
1 Ingraham v. Threadgill, 3 Dev.
'See the cases cited in the preceding note.
a Elder v. Burrus, 6 Humph. 358; Roberts v. Cunningham, Martin & Yerg. 67; Stuart v. Clark, 2 Swan, 9; Sigler v. State, 7 Baxter, 403; Martin i'. Nance, 3 Head, 049; Memphis r. Overton, 3 Yerger, 387; Holbert v. Edens, 6 Lea, 204.
4 1 Rev. Code, pp. 142, 423; Code of Virginia, tit. 19, c. 62, § 1.
6 Norfolk City v. Cooke, 27 Gratt. 430; Mead v. Haynes, 3 Rand. 33,36; Home v. Richards, 4 Call, 441. See, also, French v. Bankhead, 11 Gratt. 136; Richards c. Hoome, 2 Wash. (Va.) 36; Wroe r. Harris, Id. 126; Martin v. Beverley, 5 Call, 444.
6 Hayes v. Bowman, 1 Rand. 417; Mead r. Haynes, 3 Rand. 33; Crenshaw r. Slate River Co., 6 Rand. 245; Home v. Richards, 4 Call, 441.
'Louisville r. United States Bank, 3 B. Mon. 138, 143; Thurman v. Morof Berry v. Snyder,i it was held that an early grant by the State of Virginia, which formerly possessed this territory, of land bordering upon the Ohio River, was to be construed by the laws of Virginia, and included the soil of the river to the centre of the main channel. The decision seems open to the following criticism: First, that by the law of Virginia, which is made the basis of the decision, the bed of a navigable river could not,be granted;2 second, that, as the jurisdiction and boundary line of the State extend to low-water mark on the northern shore,3 it would seem that there is no reason for limiting private titles to the thread of the river, and reserving the more remote portion of its bed for the State, but that, if the common-law rule is adopted, the title of the riparian owner would extend across the river, as has been held in similar cases in Georgia,4 which appear not to have been called to the attention of the court in Berry v. Snyder.
§ 63. The case of The Magnolia v. Marshall,6 in Mississippi, related to the right of soil between high and lowwater mark on the Mississippi River, but the title to the
rison, 14 B. Mon. 367; Morrison v. laws of nature, and will remain as
Thurman, 17 Id. 249; Hawkesville v. surely navigable as the sea itself.
Lander, 8 Bush, 679. See also Trus- Though not so deep, their surface level
tees v. Wagnon, 1 A. K. Marsh. 243; is the same; hence, without violence
Cockrell v. M'Quinn, 4 Mon. 61; Bruce of expression or idea, they are called
v. Taylor, 2 J. J. Marsh. 160; Hart v. 'arms of the sea.' But it is different
Rogers, 9 B. Mon. 418, 422. with all the great rivers of the earth
i 3 Bush, 266, 274. In this case, above tide watev. These are dependent
Williams, J., suggests the following for their supply from the clouds."
reasons for a distinction between the In Miller v. Hepburn, 8 Bush, 326, it
title to the beds of fresh and salt was held that Berry v. Snyder settled
waters: "So long as the ocean keeps the rule in this State in favor of the
its bed, and nature's present frame doctrine of the common law.
shall continue to exist, there will al- * Ante, § 61.
ways be water up to the ocean's level 3 Post, § 71; Handley i>. Anthony,
in all those channels where the tide 5 Wheat. 379; Conway v. Taylor, 1
ebbs and flows, and this not dependent Black, 603; Church v. Chambers, 3
upon the water falling in rain; there- Dana, 278; McFall v. Com., 2 Met.
fore, these channels are filled to ocean's (Ky.) 396; Fleming v. Kenny, 4 J. J.
level twice every twenty-four hours, Marsh. 158; McFarland v. Mclvnight,
and are constantly and uniformly nav- 6 B. Mon. 510. 4 Ante, § 58.
igable. Their navigability does not 4 39 Miss. 109. See also Morgan
depend upon a season more or less v. Reading, 3 S. & M. 366; Commis
rainy, but on the constant, unvarying sioncrs v. Withers, 29 Miss. 21.
river-bed was fully considered by the court. Harris, J., after referring to the authorities usually cited upon the question, reasons: First, that the term "navigable," as employed in the common-law authorities, has reference to the right possessed by all nations of navigating the ocean and its arms as common highways of mutual intercourse and commerce, and that inland rivers, though capable of navigation, are not navigable for all the world except by permission of the sovereign having jurisdiction over them;1 second, that, under the law of nations, while the shores of the sea, rivers, and other waters forming boundaries between different states or nations, and also sounds, straits, and other arms of the sea which lead through the territory of one nation to that of another, or to other seas common to all nations, are subject to the right of innocent passage,2 not as controlled by the nearest nation, but according to the mutual convenience of the parties interested;3 yet rivers and waters, which are not national boundaries and do not constitute channels of international communication, including inland lakes and rivers, ports, harbors, and bays, the entrance of which can be defended, are a part of the adjacent nation and wholly subject to its control;4 and that the term "navigable," as used in the common law, was thus borrowed from the law of nations, and has reference to the right of free navigation of the ocean and of the greater arms of the sea, not mare clausum, and to the usage of civilized nations extending this right as far as the sea ebbs and flows, restraining grants of land by the sovereign power beyond low-water mark on tide waters and leaving the water and soil, below ordinary high-water mark, subject to the public easement as a common highway for all nations; third, that in respect to fresh rivers which are intra
1 39 Miss. p. 117. The reasoning 3 Citing Wheaton's Int. Law, pp.
of the court in this case has been ap- 243, 244, §§ 13,14 ; p. 2ol, § 18; p. 255,
proved in Wisconsin. Olson v. Mer- § 10; Vattel's Law of Nations, p. 129,
rill, 42 Wis. 203, 212; Diedrich v. §§ 200-292.
Northwestern Railway Co., 42 Wis. 4 Citing Wheaton's Int. Law, p. 266,
248, 263. § 19; Vattel's Law of Nations, p. 129,
8 Citing Vattel's Law of Nations, §§ 290-292. bk. 2, pp. 180, 181; Wheaton's Int. Law, p. 243, § 12.
territorial, whether they are capable of navigation or not, "the right of navigation was always wholly dependent on the will of the sovereign having the right of property in the soil; and, by the law of nations, such streams were 'not navigable ' for other nations, except by treaty or special permission of the local sovereign. Hence they are called 'not navigable,' in contradistinction to such waters, etc., as were common to all nations."1 The opinion proceeds:2 "In the construction of grants of land made to the citizen and bounded on these fresh-water streams, over which the sovereign had exclusive title and jurisdiction, there could be no question of the right of the sovereign to part with the title of the soil to the grantee. It became, therefore, a mere question of intention. The courts of common law, applying to these deeds or graiits the ordinary rules of construction, in cases of doubt, construed the grant most strongly in favor of the grantee; and, upon the further presumption that the grantor, in parting with his land on both sides of a watercourse, whether capable of navigation or not, could scarcely have intended, without an express clause to that effect, to reserve the watercourse to himself, have held with unvarying uniformity in England, from the earliest period down to this day, that such grants bounded on or by or at such watercourse conveyed to the respective riparian grantees the right of soil and the use of the water (subject to the jus publicum) usque ad filum aquae."3 "It is certain that under the deed of cession from
1 p. 120. » p. 120.
3 Mr. Houck (on Rivers, 59) makes the following criticisms upon this passage: (1) That an argument hased upon the hypothesis that the title of the sovereign to the hed of a river is undoubted, while doubtful as to the seashore, and the inference that the sovereign therefore disposed of the bed of the river, although no express grant is shown, are entirely ideal, in view of the fact that in England the sovereign has from time immemorial granted parts of the seashore to individuals. (2) That the grants in England construed so as to go to the
centre of the stream, were not of lands upon streams navigable in fact at the time such a construction was placed upon the grants, and the interest of the public had not attached prior to the grant from the sovereign. (3) That grants from the government are not 9trongly construed in favor of the grantee. (4) Especially is this so in the States carved out of the Territories of the Union, where all lands sold by the government are bounded by mathematical lines which limit the purchaser's rights. (5) That the position that the public could scarcely have intended to reserve the stream