Georgia, as well as the several acts and ordinances in reference to the free navigation of the Mississippi River, as a common highway, no grant could have been made here, interfering with this great public right.1 There is, therefore, no inconsistency, but, on the contrary, as before suggested, perfect harmony between the jus privatum of riparian ownership in public fresh-water streams to the middle of the river and the jus publicum of free navigation thereof. The soil is granted to the riparian proprietor, subject to this public easement." With reference to the opinion delivered by Tilghman, C. J., in the Pennsylvania case of Carson v. Blazer,2 the opinion proceeds: "He seems not to apprehend that the great principle lying at the foundation of the rule ('that a grant of land, bounded on the ocean or its arms, or tide water, extends only to ordinary high-water mark') is that a sovereign making such grant, by the laws and comity of nations, has no power to appropriate to private use what is not only juris publici, or common to the whole world, and therefore incapable of ownership, but what lies beyond his territorial dominion." The learned judge concludes that the plaintiff derived his title to the property in question under the common law; and that only under the common-law doctrine as to fresh-water streams could the deed of cession by Georgia to the United States and the act of Congress organizing the Mississippi Territory and the subsequent act admitting that Territory as a State, which acts referred to the Mississippi River as a boundary, be held to pass to Mississippi the right of soil and jurisdiction to the middle of the river; that the whole legislation of Mississippi in relation to her western boundary was founded upon this rule of the common law, and that its right of jurisdiction and property to the thread of the river had been frequently asserted and acted on. Handy, J., concurred in the conclusion reached, without assenting to all the views expressed in the above opinion. without an express clause, is opposed to the United States statutes declaring navigable rivers public highways and unnavigable streams common to the opposite shoreholders. 1 p. 122. 22 Binney, 475; post, § 65. 4 pp. 133-135. § 64. With respect to the deed of cession from Georgia to the United States, and the acts of Congress referred to in this opinion, it may be remarked that, under the decisions of the Supreme Court of the United States, Mississippi acquired the jurisdiction and property in its navigable waters;1 and it seems equally clear that by the rules both of the law of nations and of the common law applicable to boundary rivers, the line of separation, if not controlled by treaty or the terms of the grant, would be fixed at the middle of the channel, irrespective of the question whether the water was salt or fresh.2 The suggestion, therefore, that Congress adopted the common-law rule in fixing the western boundary of the State does not necessarily affect the question whether the riparian owner, upon the one hand, or the State, upon the other, owns the river-bed. With respect to the law of nations, the opinion proceeds upon grounds not clearly established, and disregards the distinction between those tide waters which are, and those which are not, within the territory of a nation. The territory of England extends to low-water mark on the external coast,3 and between that Martin . Waddell, 16 Peters, 367; Pollard v. Hagan, 3 How. (U. S.) 212; Goodtitle v. Kibbe, 9 Ib. 471. "These cases," say the court, in Barney v. Keokuk, 94 U. S. 324, 338, "related to tide waters, it is true; but they enunciate principles which are equally applicable to all navigable waters." See, also, Renwick v. The D. & N. W. R. Co., 49 Iowa, 664, 669. 2 Lawrence's Wheaton's Int. Law (2d ed.), pp. 342, 346-360; Wheaton's Law of Nations, 577-583; Vattel, bk. 1, c. 22, §§ 266, 274; Marten, Precis du Droit. bk. 2, c. 1, § 39; Bluntschli, Int. Law, 298, 299; Handly v. Anthony, 5 Wheat. 374; The Apollon, 9 Wheat. 362, 369; The Fame, 3 Mason, 147; Cornfield v. Coryell, 4 Wash. C. C. 384; Bennett v. Boggs, Bald. 60; Mississippi Railroad Co. v. Ward, 2 Black, 485; An Open Boat, 1 Ware, 26, 28; Spears v. State, 8 Texas App. 467; Stillman v. White Rock Manuf. Co., 3 Wood. & M. 538; Missouri v. Kentucky, 11 Wall. 395, 401; Gilbert v. Moline Water Power Co., 19 Iowa, 319; State v. Mullen, 35 Iowa, 199; Canal Appraisers v. People, 17 Wend. 571, 597; Mahler r. New York Trans. portation Co., 35 N. Y. 352; People v. Central Railroad Co., 48 Barb. 478; Tinicum Fishing Co. v. Carter, 61 Penn. St. 21, 30; Brown v. Camden Railroad Co., 83 Penn. St. 316; Myers v. Perry, 1 La. Ann. 372; Phillips . People, 55 Ill. 429; Attorney General v. Delaware Railroad Co., 27 N. J. Eq. 1, 631. If a nation possesses both banks of a river, and grants to another nation the territory on one side only, it retains the river within its domain, and the grantee takes to low-water mark only. Handly v. Anthony, 5 Wheat. 374. line and the high-water mark the Crown's right of property is subject to the jus publicum of its subjects, but has never been regarded in that country as burdened with an easement in favor of foreign nations. There appears, also, to be no authority for the suggestion that the technical use of the word "navigable" is derived from the law of nations; nor could it have been derived from a system which recognizes none of the peculiar distinctions of the common law 2 with respect to the admiralty jurisdiction and the jus privatum3 of the Crown in navigable waters. Under the law of nations, the subjects of foreign powers have no greater rights in tidal rivers which are exclusively within the territory of one nation, and do not flow through distinct jurisdictions, than in large fresh-water rivers similarly situated. That law does not distinguish between rivers by the absence or presence of the tide; and it admits of little doubt that every State has full sovereignty, from their source to the sea, over all waters which are wholly within its territory and do not lead to other large waters, as well in places where the water is salt as where it is fresh. The reasoning of Harris, J., violates these principles, which are too clearly supported by authority to admit of serious question as to their correctness. § 65. In Pennsylvania the English doctrine has always been rejected. The early case of Carson v. Blazers pro 28. 1 See authorities cited ante, §§ 21, Ball v. Slack, 2 Whart. 508; Covert 2 Ante, §§ 8, 12. 3 Ante, §§ 17-19. 4 Lawrence's Wheaton's Int. Law (2d ed.), 342, 346-360; Hall's International Law, 113, 114, and authorities above cited in this section, as to boundary rivers between States. Ibid. 6 Ibid. v. O'Connor, 8 Whart. 470; Bird v. Smith, 8 Watts, 434; Dalrymple v. Mead, 1 Grant's Cas. 197; Union Canal Co. v. Landis, 9 Watts, 228; Zimmerman v. Union Canal Co., 1 Watts & S. 346; Jones v. Janney, 8 Watts & S. 436; Johns v. Davidson, 16 Penn. St. 512; Bailey v. Miltenberger, 31 Penn. St. 37; Baker v. Lewis, 33 Penn. St. 301; Barclay Railroad Co. v. Ingham, 36 Penn. St. 194; Solliday v. Johnson, 38 Penn. St. 380; Flanagan v. Philadelphia, 42 Penn. St. 219; Monongahela Bridge Co. v. Kirk, 46 Penn. St. 112; Mc8 2 Binney, 475. 7 Carson v. Blazer, 2 Binney, 475; Commonwealth v. Fisher, 1 Penn. 462; Cooper v. Smith, 9 S. & R. 26; Shrunk v. Schuylkill Navigation Co., 14 S. & R. 71; Hart v. Hill, 1 Whart. 124; ceeded upon three grounds: first, that such a rule was inapplicable to the condition of that State; second, that the title to the river-beds which Penn acquired by grant from the Crown of England either was not alienated in his grants of river lands, but was retained for the public benefit, or if such property was included in his concessions, which declared that all rivers, etc., shall be freely enjoyed, "and wholly by the purchasers into whose lots they fall," yet these concessions were to be construed as personal and as confined to the first purchaser; third, that any exclusive private rights in the rivers of the State were inconsistent with its statutes and usages. In subsequent cases stress was laid upon the fact that islands in navigable fresh-water rivers, which, at the common law, would belong to the riparian owners, together with the soil of the river, had been uniformly treated as distinct from the lands adjacent to the banks both under the proprietary and State governments, being sold by special contract and for higher prices than the ordinary river lands. The rule thus founded has been applied to the large fresh rivers of the State, such as the Susquehanna and its principal branches, and the Allegheny, Ohio, and Monongahela Rivers. In these the fishery is a common right, and grants from the State, or between private persons, of lands bordering upon them, when calling for the river as a boundary, do not extend Keen v. Delaware Canal Co., 49 Penn. St. 424; Stover v. Jack, 60 Penn. St. 339; Tinicum Fishing Co. v. Carter, 61 Penn. St. 21; Wainwright v. McCullough, 63 Penn. St. 66; Zug v. Commonwealth, 70 Penn. St. 138; Poor v. McClure, 77 Penn. St. 214; Allegheny City v. Moorehead, 80 Penn. St. 118; Philadelphia v. Scott, 81 Penn. St. 80; Fisher v. Haldeman, 20 How. 186; 1 Wall. Jr. 79, 297; Simpson v. Neill, 89 Penn. St. 183; Rundle v. Delaware Canal Co., 14 How. (U. S.) 80; Carson v. Blazer, 2 Binney, 475. 1 Shrunk v. Schuylkill Navigation Co., 14 S. & R. 71; Hunter v. How ard, 10 S. & R. 243; Stover v. Jack, Allegheny City 2 the grantee's title beyond the ordinary low-water mark,1 and will not include islands which are connected with the main land only in times of extraordinary drought. So the wrongful diversion of a navigable stream-bed does not extinguish the right of the State to the soil or add to that of private persons.3 These rivers are often subject to marked fluctuations, and the title of the riparian owners to the shore, or space between high and low-water mark, is but a limited and qualified form of property. The public have the right of passage over it at high water, and the State may use it for purposes connected with the navigation of the stream without compensation to the owners of the adjoining lands, and may protect it from any use by such owners which is not strictly authorized. But, as the riparian owner's title extends, ir the case of a navigable fresh river, to low-water mark, he is entitled to compensation from a railroad company, the construction of whose road causes the loss of a spring situated between high and low-water mark, although he could not recover for the loss of a spring similarly situated on the shore of a tidal river. In this State, as elsewhere, grants of land upon small unnavigable streams, following their courses and distances, pass the right of soil to the centre of the stream.7 Hart v. Hill, 1 Whart. 137; Ball v. Slack, 2 Whart. 508; Cooper v. Smith, 9 S. & R. 26; Naglee r. Ingersoll, 7 Penn. St. 185; Lehigh Valley Railroad Co. v. Trone, 28 Penn. St. 206; Jones v. Janney, 8 Watts & S. 436; Stover v. Jack, 60 Penn. St.` 339, 343; Freytag v. Powell, 1 Whart. 536; Hartley v. Crawford, 33 Leg. Int. 24; s. c. 23 Pitts. L. J. 127; Allegheny City v. Moorehead, 80 Penn. 118. Union Canal Co., 1 Watts & S. 346; Bailey v. Miltenberger, 31 Penn. St. 37; Flanagan v. Philadelphia, 42 Penn. St. 219; Wainwright v. McCullough, 63 Penn. St. 66; Wood v. Appal, Ibid. 210; Grant v. White, Ibid. 271; Poor v. McClure, 77 Penn. St. 214, 219; Hartley v. Crawford, 81 Penn. St. (pt. 2), 478; Philadelphia v. Scott, 81 Penn. St. 80, 86; Lacy v. Green, 84 Penn. St. 514; Cooper v. Smith, 9 S. & R. 26; Balliet v. Commonwealth, 2 Ibid.; Stover v. Jack, 60 Penn. 17 Penn. St. 206. St. 339. 3 Wainwright v. McCullough, 63 Penn. St. 66; Zug v. Commonwealth, 70 Penn. St. 138. 4 Stover r. Jack, 60 Penn. St. 339; Shrunk v. Schuylkill Navigation Co., 14 S. & R. 71; Commonwealth v. Fisher, 1 Penn. 462; Zimmerman v. 5 Lehigh Valley Railroad Co. v. Trone, 28 Penn. St. 206. 6 Commonwealth v. Fisher, 1 Penn. 462. Coovert v. O'Conner, 8 Watts, 470; Ball v. Slack, 2 Whart. 538; Barclay Railroad Co. v. Ingham, 36 Penn. St. 190. In Shrunk v. Schuyl |