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of the tide does not now constitute the test of the navigability of American waters, and those rivers are public and navigable in law which are navigable in fact. If, in their ordinary condition, by themselves, or by uniting with other waters, they form a continued highway, over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water, they are "navigable waters of the United States" within the meaning of the acts of Congress in which that phrase is employed.1 This departure from the precedents of the English law tends to support the position that the large inland rivers of this country are public in respect to property. In Barney v. Keokuk,2 in the Supreme Court of the

Plant, 10 Wall. 577; Insurance Co. v. Dunham, 11 Wall. 1; Leon v. Garceran, Id. 185; Barney v. Keokuk, 94 U. S. 324; Ex parte Easton, 95 U. S. 68, 72; Steamboat Co. v. Chase, 16 Wall. 522; 9 R. I. 419; The Montello, 20 Wall. 430; The Lottawanna, 21 Wall. 558; United States 2. Wilson, 3 Blatch. 435; The Sarah Jane, 1 Lowell, 203; Raymond . The Ellen Stewart, 5 McLean, 269; Roberts v. Skolfield, 3 Ware, 184; The Avon, 1 Brown Adm. 180; The Illinois, Ibid. 497; Revenue Cutter No. 1, Ibid. 76; The General Cass, Ibid. 334; Eads v. The H. D. Bacon, Newb. Adm. 274; Parmlee v. The Charles Mears, Ibid. 197; Williams . The Jenny Lind, Ibid. 443; McGinnis v. The Pontiac, Ibid. 130; The Flora, 1 Biss. 29; The Elmira Shepherd, 8 Batch. 341; The Mary Washington, 1 Abb. (U. S.) 1; Jones v. The Coal Barges, 3 Wall. Jr. 53; The Leonard, 3 Ben. 263; The Kate Tremaine, 5 Ben. 60; Wolverton v. Lacey, 18 Law Rep. 672; Scott v. The Young America, 1 Newb. Adm. 101; The Illinois, 1 Brown Adm. 497; McCormick v. Ives, Abb. Adm. 418; Dorr v. Waldron, 62 Ill. 221; The Josephine, 39 N. Y. 19; 50 Barb. 501; Vose e. Cockcroft, 44 N. Y. 415; 45 Barb. 58;

Baird v. Daly, 4 Lans. 426; General
Buell v. Long, 18 Ohio St. 521; Petrel
v. Dumont, 28 Ohio St. 602; Walters v.
The Mollie Dozier, 24 Iowa, 192; Tug
Boat Dorr v. Waldron, 62 Ill. 221;
Merrick v. Avery, 14 Ark. 370; Morse
v. Home Ins. Co., 30 Wis. 496.
1 Ibid.

294 U. S. 324. The learned judge said: The confusion of navigable with tide water, found in the monuments of the common law, long prevailed in this country, notwithstanding the broad differences existing between the extent and topography of the British island and that of the American continent. It had the influence for two generations of excluding the admiralty jurisdiction from our great rivers and inland seas; and under the like influence it laid the foundation in many States of doctrines, with regard to the ownership of the soil in navigable waters above tide water, at variance with sound principles of public policy. Whether, as rules of property, it would now be safe to change these doctrines, where they have been applied, is for the several States themselves to determine. If they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign

United States, Bradley, J., in delivering the opinion of the court, observed that the confusion of navigable with tide waters, found in the monuments of the common law, had not only retarded the development of the admiralty jurisdiction, but had laid the foundation in many States of doctrines with regard to the ownership of the soil in navigable waters above the tide which were at variance with sound principles of public policy; and that, since the decision in the case of the Genesee Chief, there seemed to be no sound reason for adhering to the old rule as to the proprietorship of the beds and shores of such waters.

§ 68. The ordinance of the Confederate Congress of July 13, 1787, entitled "An ordinance for the government of the territory of the United States north-west of the River Ohio," provided that "the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the Confederacy, without any tax, impost or duty therefor." And by successive acts of Congress the navigable waters in the Western States and Territories have been declared to be public highways.2 A similar provision

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capacity, it is not for others to raise objections. In our view of the subject, the correct principles were laid down in Martin . Waddell, 16 Pet. 367; Pollard v. Hagan, 3 How. (U.S.) 212; and Goodtitle v. Kibbe, 9 How. (U. S.) 471. These cases related to tide water, it is true; but they enunciate principles which are equally applicable to all navigable waters. And since this court, in the case of the Genesee Chief, 12 How. (U.S.) 443, has declared that the great lakes and other navigable waters of the country, above, as well as below, the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to

be no sound reason for adhering to
the old rule as to the proprietorship
of the beds and shores of such waters.
It properly belongs to the States by
their inherent sovereignty, and the
United States has wisely abstained
from extending (if it could extend)
its surveys and grants beyond the
limits of high water. The cases in
which this court has seemed to hold a
contrary view, depended, as most cases
must depend, on the local laws of the
States in which the lands were situ-
ated."
Art. IV.

2 Acts of May 18 and June 1, 1796; March 3, 1803; March 26, 1804; Feb, 20 and March 3, 1811; April 8 and June 4, 1812; March 1 and May 8, 1817.

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appears in the constitutions or statutes of the Western States bordering upon the Mississippi River with respect to that river,1 and in the acts of Congress admitting them into the Union; and in the early treaties between Great Britain or the United States upon the one hand, and France or Spain upon the other, it was provided that the navigation of this river should be free throughout its course. These provisions may now be regarded as declaratory of the modern rule that all rivers which are capable of navigation in their natural condition are subject to public use for that purpose, whether in other respects they are held to be private property or not.5 But at the time the ordinance of 1787 was enacted, the question whether a river is a public highway was thought to be dependent upon proof of long user by the public. The ordinance may thus have been intended to prevent the application of so narrow a rule to the great rivers of the West, to amount to a reservation of the soil of these waters, and to render the rule of riparian ownership inapplicable to them.8

See, for example, Const. of Wisconsin, Art. 9; Alabama Code of 1852, p. 267, § 1205, and of 1851, p. 126, § 389; Mississippi Code of 1851, p. 177; Tennessee Code (1858), p. 295; Gen. Stats. of Nebraska (1873), pp. 63, 65.

2 See, e.g., 2 Stats. at Large, 349, 642, 703, 747, 546; 3 Ibid. 349, 543; 5 Ibid. 428, 431. The same is declared in the act of Congress relating to the sale and disposition of the public lands, 1 U. S. Stat. at Large, 466, 468; U. S. Rev. Stats, § 2476. See Hatch v. Wallamet Iron Bridge Co., 7 Sawyer, 127.

38 Stats. at Large, 83, 117, 141, 204; Art. 7 of the Treaty of Paris (1763); 1 Halleck's Int. Law, 150.

Stuart v. Clark, 2 Swan (Tenn.), 9, 17; Gavit r. Chambers, 3 Ohio, 496; Hickok r. Hine, 23 Ohio St. 523, 527; La Plaisance Bay Harbor Co. v. Monroe, Walk. Ch. 155, 165; Lorman v. Benson, 8 Mich. 18, 26; Woodman v.

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7 See remarks of Martin, J., in Moore v. Sanborne, 2 Mich. 519, 525.

Post, § 76; Railroad Co. v. Schurmeir, 7 Wall. 272; Schurmeir v. Railroad Co., 10 Minn. 82; McManus v. Carmichael, 3 Iowa, 1; Benson v. Morrow, 61 Mo. 345; Ross v. Faust, 54 Ind. 471; Holmes v. Mallett, Morris (Iowa), 82; O'Ferrall v. Simplot, 4 Iowa, 381; Reed r. Wright, 2 G. Greene, 15. In Attorney General v. Lake Superior Canal Co., 32 Mich. 233, it was held that the provision in an act of Congress, that a canal should be a public highway free from toll or charge, for United States vessels, sim

§ 69. The system of surveys and grants of the public lands, adopted by the general government, is also important in this connection. In the case of Middleton v. Pritchard,

ply secured a right of free passage, and did not create a trust for the United States in the possession of the State.

1 By the act of Congress of May 20, 1785, surveyors were directed to divide the territory, ceded by individual States, into townships of six miles square by lines running due north and south, and others crossing these at right angles, "unless where the boundaries of the tracts purchased from the Indians rendered the same impracticable." 1 Land Laws, 19; Railroad Co. v. Schurmeir, 7 Wall. 272, 285. This system was preserved in the act of Congress of May 18, 1796, which provided for the sale of the lands of the United States northwest of the Ohio River, the exception being as follows: "Unless where the line of the late Indian purchase, or of tracts of land heretofore surveyed or patented, or the course of navigable rivers may render it impracticable; and then this rule shall be departed from no further than such particular circumstances may require." 1 Stats. at Large, 466, § 2; 2 Ibid. 73, 277, 313, 642, 665; 19 Ibid. 348; U. S. Rev. Stats. § 2395. The second section of the act of May 18, 1796, further provides: "Every surveyor shall note in his field-book the true situation of all mines, salt licks, salt springs, and mill seats which shall come to his knowledge; all watercourses over which the line he runs shall pass, and also the quality of the lands. These field-books shall be returned to the Surveyor General, who shall therefrom cause a description of the whole lands surveyed to be made out and transmitted to the officers who may superintend the sales. He shall also cause a fair plat to be made of the townships, and fractional parts of

See

townships, contained in the said lands, describing the subdivisions thereof, and the marks of the corners. This plat shall be recorded in books to be kept for that purpose; a copy thereof shall be kept open at the Surveyors General's office, for public information; and other copies sent to the places of the sale, and to the Secretary of the Treasury." also U. S. Rev. Stats. § 2395. The third section of this statute provided that salt springs should be reserved, but that "there shall be no reservations, except for salt springs, in fractional townships, where the fraction is less than three-fourths of a township." The act of Congress of May 24, 1824 (4 Stats. at Large, 34 U. S. Rev. Stats. § 2407), empowered the President of the United States to prescribe rules and regulations authorizing a departure from the ordinary mode of surveying the public lands on any river, lake, bayou, or watercourse, so that the lands so situated might be surveyed in tracts of two acres in width and running back the depth of forty acres, which tracts, so surveyed, should be offered for sale entire. As to islands in the Mississippi River, on the side of the Illinois Territory, see § 1 of the act of Feb. 27, 1815 (3 Stats. at Large, 218). The above act of 1796 is the foundation of the surveying system of the United States. The act of Congress of 1803 (2 Stats. at Large, 229) made the provisions of this act applicable to the lands south of the State of Tennessee. The act of 1804 (2 Stats. at Large, 277) extended these provisions to all the lands of the United States, to which the Indian titles had been, or should thereafter be extinguished, north of the River Ohio, and east of the Mississippi River. The act of

the Supreme Court of Illinois held that where a government grant is made which does not reserve a right or interest that would ordinarily pass by the rules of law, and the government does no act which indicates an intention to make such reservation, the grant includes all that would pass by it if it were a private grant; and that as the United States had not imposed any limitation upon its grant of the land in question, which was an island in the Mississippi River, separated from the adjoining land by a slough, the title of the riparian owners extended to the thread of the river and included the island. It was not denied that it was within the power of the government to exclude the prima facie right of the riparian owner to claim to the centre of the stream, but the court considered that it had not indicated such intention in

the particular case. The island and slough, they say, "are not marked or mapped upon the plat of the government surveys. But it appears the surveyor of the government traced the courses and distances along the margin of the slough, next the main land, in order to estimate the quantity of land in the fraction; and which estimate did not include the locus in quo. But the plats in the land office and the Surveyor General's office have no line marking these courses and distances as a boundary. The re taken from the fieldnotes of meandering in the Surv or General's office." It

1805 (2 Stats. at Large, 329) extended them to the Territory of Orleans; and that of 1811 (2 Stats. at Large, 665), to the Territory of Louisiana. The act of 1812 (2 Stats. at Large, 748) extended them to the Missouri Territory, and that of 1816 (3 Stats. at Large, 325) required the surveyor of the Missouri and Illinois Territory to observe these provisions in making his surveys. The act of 1850 (9 Stats. at Large, 496) made the same provisions applicable to the public lands in Oregon and Washington Territories; and that of 1854 (10 Stats. at Large, 308), to those in New Mexico, Kansas, Nebraska, and Utah. The system of survey, by base and meridian lines, thus established under the acts of

Congress, is part of the public law, of which judicial notice is taken by the courts in those States carved out of the public territory. Murphy v. Hendricks, 57 Ind. 593; Bannister . The Grassy Ford Ditching Association, 52 Ind. 178; The Jordan Ditching Association v. Wagoner, 33 Ind. 50; Turpin v. The Eagle Creek Co., 48 Ind. 45; Dickenson v. Breeden, 30 Ill. 279; Gooding v. Morgan, 70 Ill. 275; Prieger v. Exchange Ins. Co., 6 Wis. 89; Atwater v. Schenck, 9 Wis. 160; Bittle v. Stuart, 34 Ark. 224. See, generally, as to the land system of the United States, Zabriskie's Public Land Laws; Lester's Land Laws; 2 Am. Law Rev. 383.

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