the public lands, nor the power conferred upon Congress to make laws and regulations for the sale and disposition thereof, enables the general government to grant the shores and bed of such waters within the limits of a new State after its admission into the Union.1 The new States may possess lands, either under grants from the United States. or by virtue of their sovereignty; and their ownership of the seashore and of the soil of the bays and inlets of the sea is of the latter class.2

§ 40. In Hinman v. Warren,3 in Oregon, it was held that the United States, while holding the title to the soil of tide waters, cannot make a valid conveyance of such soil. There are also dicta to this effect in the case of Haight v. Keokuk,* in Iowa, but Hinman v. Warren appears to be the only adjudication upon the subject. According to this view, the United States holds purely as trustee for the future State, and is without statutory or constitutional authority to do any act making it impossible to admit the new State upon a footing equal, in all respects, with that of the other States. The decisions of the Supreme Court of the United States have been thought to lead to the conclusion reached in Hinman v. Warren; but it would seem that there is no very direct expression of such a view, in the opinions of that court.6 The power of Congress to legislate in the interest

Chapin v. Bourne, 8 Cal. 298; Eldridge v. Cowell, 4 Cal. 81; People v. Davidson, 30 Cal. 379; Farish v. Coon, 40 Cal. 33; Coburn . Ames, 52 Cal. 385; Le Roy v. Dunkerly, 54 Cal. 452 ; Hinman v. Warren, 6 Oregon, 408; Strader v. Graham, 10 How. 82; Boulo v. Mobile Railroad Co., 55 Ala. 480. See Pollard v. Kibbe, 14 Peters, 353; 9 Porter, 712; Mobile v. Eslava, 16 Peters, 234; 9 Porter, 577; Mobile v. Hallet, 16 Peters, 261; Mobile v. Emanuel, 1 How. 95; Pollard v. Files, 2 How. 592, 3 Ala. 47; Duval v. McLoskey, 1 Ala. 708, 747; Kemp v. Thorp, 3 Ala. 291; Hagan v. Campbell, 8 Porter, 9.

.

of a territory is superior to that of the territorial legislature,1 apart from the authority to regulate commerce, granted by the Constitution of the United States; and it would seem that Congress may, at least, make such grants in aid of commerce and navigation, as are necessary for the erection of wharves, piers, dams, and bridges in navigable waters, if, indeed, there is any power in the courts to review its determination as to the means of promoting these public interests. In the earlier cases of Mobile v. Eslava,2 and Mobile v. Hallet, Mr. Justice Catron says, in a dissenting opinion, that it had not been doubted that the United States could convey the soil under the navigable waters of Alabama, prior to its admission into the Union.

State. Upon the admission of California into the Union upon an equal footing with the original States, absolute property in, and dominion and sovereignty over, all soils under the tide waters within her limits passed to the State." But in Barney v. Keokuk, 94 U. S. 324, 338, the question was left open, Bradley, J., saying, in speaking of the surveys by the general government of lands adjoining the navigable fresh rivers of the West (post, § 68): "It properly belonged 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." In Gavit v. Chambers, 3 Ohio, 496, 498, the court, in adopting the common-law rule, by which the title of riparian proprietors upon all fresh-water streams extends usque ad filum aquae, said: "There is nothing in the trust vested in Congress, and executed by them, and nothing in the manner of executing it, to warrant the establishment of a different principle here."

See U. S. Rev. Stats. §§ 1850, 1891; American Ins. Co. v. Canter, 1 Peters, 511, 545; Scott v. Jones, 5 How. 343; United States v. Gratiot, 14 Peters, 526; Reynolds v. United States, 98 U.S. 145; Ferris v. Higley, 20 Wall.

375; National Bank v. Yankton, 101 U. S. 129, 133; Clinton v. Englebrecht, 13 Wall. 434; United States v. Vigil, 13 Wall. 449, 451; Johnson v. McIntosh, 8 Wheat. 543; Fletcher v. Peck, 6 Cranch, 142; Carpenter v. Rogers, 1 Mon. Ter. 90; Territory v. Lee, 2 Id. 124; Reynolds v. People, 1 Col. 179; Carson River Co. v. Barrett, 2 Nev. 249; Swan v. Williams, 2 Mich. 427; 3 Story Com. 193, 536; 1 Kent Com. 257, 384; Franklin v. United States, 1 Col. 35; Reynolds v. People, Id. 179; Wisconsin v. Doty, 1 Pinney (Wis.) 396; Van Sickle v. Haines, 7 Nev. 249; Union Mining Co. v. Ferris, 2 Sawyer, 176.

2 16 Peters, 234; 9 Porter, 577.

3 16 Peters, 261. See also Pollard v. Hagan, 3 How. 212; Hagan v. Campbell, 8 Porter, 1; Abbot v. Kennedy, 5 Ala. 393, 396; Hendricks v. Johnson, 6 Porter, 472; Mobile v. Emanuel, 1 How. 95, 98, 102; 17 Peters, 155; 9 Porter, 403; Pollard v. Files, 2 How. 591; s. c. 3 Ala. 47; Pollard v. Kibbe, 14 Peters, 353; 9 How. 471; s. c. 1 Ala. 403; Doe v. Beebe, 13 How. 25; Hallett v. Beebe, 13 How. 25; 8 Ala. 909; Pollard v. Greit, 8 Ala. 930; Hallett v. Hunt, 7 Ala. 882. See Tripp v. Spring, 5 Sawyer, 209.

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.

49. Ibid.

50. Ibid.

51, 52. Ibid.

53-55. Ibid.

56-58. Ibid.

Early English decisions.

- The present rule in England.

-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.

§ 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. 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

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.

"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 . 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 ; * 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."

§ 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 r. Worcester, 10 Allen, 591; Gannon v. Hargadon, 10 Allen, 106; Bates v. Smith, 100 Mass. 181; Emery r. Lowell, 104 Mass. 13; Morrill. Hurley, 120 Mass. 99; State v. Gilmanton, 14 N. H. 467; Bangor v. Lansil, 51 Maine, 521; Greeley v. Maine Central Railroad Co., 53 Maine, 200; Morrison Bucksport Railroad Co., 67 Maine, 353; Buffum v. Harris, 5 R. I. 243; Goodale v. Tuttle, 29 N. Y. 459; Earl v. De Hart, 1 Beasley, 280; Bowlsby . Speer, 31 N. J. L. 351; Shields v. Arndt, 3 Green Ch. 234; Beard v.

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 e. 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.