Hence, as was said in an early case, "all the navigable rivers in England appertain to the king." They are arms of the sea, and the king has them because they partake of its nature. This ownership is for the public benefit,3 and in this country each state, as sovereign, has succeeded to the rights which the king formerly possessed in such rivers and in the soil beneath.1 The high and low-water marks which define the shores are determined by the same rules as in the case of the shores of the sea and the arms of the sea, and the rights of the public extend to ordinary high-water mark.5 Islands which are formed in these rivers belong to the king, and in this country to the respective States as sovereign powers, and the rights of navigation and fishery in them, which are prima facie common to all, cannot be impaired by a grant from the Crown at common law, but may be by a State within the limits of which the waters lie, if intercommunication between different States is not thereby affected. 8 §43. The presence of the tide is strong prima facie evidence that a river is public and useful for navigation. It is ployed in legal phraseology, are thus defined by Gray, C. J., in Commonwealth v. Vincent, 108 Mass. 441, 447: "The term ' navigable waters,' as commonly used in the law, has three distinct meanings: 1st, as synonymous with tide waters,' being waters, whether salt or fresh, wherever the ebb and flow of the tide from the sea is felt; or, 2d, as limited to tide waters which are capable of being navigated for some useful purpose; or, 3d (which has not prevailed in this Commonwealth), as including all waters, whether within or beyond the ebb and flow of the tide, which can be used for navigation"; citing Commonwealth v. Chapin, 5 Pick. 199; Rowe v. Granite Bridge Co., 21 Pick. 344; Murdock v. Stickney, 8 Cush. 113, 115; Attorney General r. Woods, 108 Mass. 436; Waters v. Lilley, 4 Pick. 145, 147; Genesee Chief v. Fitzhugh, 12 How. 443; The Daniel Ball, 10 Wall. 557. See also, Mayor of Colchester v. Brooke, 7 Q. B. 339, 374; The Montello, 20 Wall. 430, 442; Abraham v. Great Northern Railway Co., 16 Q. B. 586, 598. In those Western States, where there are no tidal waters, the word "navigable" is not commonly employed in the technical sense. See Hickok v. Hine, 23 Ohio St. 523. Rex. v. Trinity House, 1 Sid. 86; s. c. 1 Keb. 331. not, however, conclusive. In many small creeks and inlets of the sea private property may exist. The extent to which a river, whether its waters are salt or fresh, is used for navigation, affords the strongest evidence of its navigable capacity. If the channel is broad and deep and adapted to the purposes of commerce, it is a natural conclusion that it is a public navigation;2 but if it is a small creek, navigable only at exceptional and extraordinary tides, or at certain states of the tide, and then only for a short time and by very small boats, its inadaptability for general use is strong, if not conclusive, evidence against the existence of a public right.1 1 See Miles v. Rose, 5 Taunt. 706; Vooght v. Winch, 2 B. &. Ald. 662. In the early case of Commonwealth v. Charlestown, 1 Pick. 180, 186-188, Parker, C. J., said: "By the common law, the property of the sovereign is said to extend to all places where the sea ebbs and flows, whether such places are navigable or not; but it is probable the usages of our country have given a reasonable limitation to this doctrine, confining the public right to what may be of public use; so that in many little creeks into which the salt water flows, but which are incapable of being navigated at all, private property may be maintained. This is undoubtedly the case with many of the creeks which run through our extensive marshes, over which small bridges are thrown for the convenience of removing the hay; and yet whenever these streams are large enough for the passage of boats, and gondolas, or lighters, and pass through the lands of several proprietors, no one can obstruct them, even in his own grounds, unless he has acquired a right by prescription; which probably is the case with many of them. . . . There is but one principle for judicial courts to be governed by, and that is, to consider as public property all those inlets of the sea which are capable of sustaining vessels of any description, with their loading, for purposes really useful to trade or agriculture. It has been urged, that the actual use of them for such purposes is necessary to give them the character of public property; but it is obvious there can be no such qualification of the principle at common law; for it would go to allow the occupation, by individuals or corporations, of many of the most important public privileges, in the early settlement of the country, before ports and places of deposit should become valuable." It is now settled that the public right is limited to those streams and inlets which are capable of public use. Rowe v. Granite Bridge Co., 21 Pick. 344; Charlestown v. County Commissioners, 3 Met. (Mass.) 202; Attorney General v. Woods, 108 Mass. 436; 9 Gray, 519, note; The Montello, 20 Wall. 430, 442, 443; United States v. New Bedford Bridge, 1 Wood. & M. 401, 487; Weathersfield v. Humphrey, 20 Conn. 218; Groton v. Hurlburt, 22 Conn. 178; Burrows v. Gallup, 32 Conn. 501; Brown v. Preston, 38 Conn. 219; Glover v. Powell, 10 N. J. Eq. 211; Flanagan v. Philadelphia, 42 Penn. St. 219. 2 See per Bailey, J., in Rex v. Montague, 4 B. & C. 598. 3 Rowe v. Granite Bridge Co., 21 Pick. 344; Attorney General v. Woods, 108 Mass. 436. 4 Colchester v. Brooke, 7 Q. B. 339. The term "navigable," says Denman, C. J.,1 "is a relative and comprehensive term, containing within it all such rights upon the water way, as with relation to the circumstances of each river, are necessary for the full and convenient passage of vessels and boats along the channel." In Mayor of Lynn v. Turner,2 the corporation of Lynn Regis was sued for not repairing and cleansing a tidal creek, "as from time immemorial they had been used," whereby, as appeared by one count of the declaration, the plantiff lost the use of his navigation. It was urged that if one count of the declaration was bad, the judgment against the corporation should be set aside, and that, as the place in question was a public navigable river within the tide, no action would lie without proof of special damage; but Lord Mansfield considered that it did not sufficiently appear that it was a navigable river, and that the presence of the tide did not prevent its being in the private estate of the corporation. In Miles v. Rose, Gibbs, C. J., considered the flowing of the tide not absolutely inconsistent with a right of private property in a creek, although strong prima facie evidence against such right. In Vooght v. Winch, Holroyd, J., said that if a stream had ever been capable of navigation, an act of Parliament was the only means by which the public right could be determined; but in the later case of Rex v. Montague, he concurred in the opinion that 1 Colchester v. Brooke, 7 Q. B. 339, 374. 21 Cowper, 86, Lofft. 556. Lord Mansfield here said: "Ex facto oritur jus. How does it appear that this is a navigable river? The flowing and reflowing of the tide does not make it so; for there are many places into which the tide flows that are not navigable rivers; and the place in question may be a creek in their own private estate." The corporation was held to be bound by prescription to repair. 3 5 Taunt. 706. 42 B. & Ald. 662. 54 B. & C. 598. This was an indictment for cutting a trench across a common and ancient highway. At the trial it appeared that the highway in question was an embankment across a creek, and that the defendants cut down this embankment by order of the corporation of London, who contended that the creek was a public navigable stream, and that the road improperly obstructed it; that the road had been so high for twenty years that no boats could pass over it at any time; and that, for years before, the only evidence of an actual navigation was by very small boats for a brief period at the time of high water. Bailey, J., said: "It was for the defendant to make out that there once was a public navigation. Now it does the public right might be extinguished in other ways than by act of Parliament; as by writ of ad quod damnum, or by the commissioners of sewers in certain cases, or by natural causes, such as the filling of the channel or the recession of the sea. Again, in the case of Mayor of Colchester v. Brooke,1 Lord Denman, C. J., while regarding the flow and reflow of the tide as the strongest evidence that a river was public and navigable, considered the fact that the soil in arms of the sea and public navigable rivers, independently of any ownership of the adjoining lands, is prima facie vested in the Crown, but subject to the public right, and that the grantee of the Crown takes subject to the same right, not inconsistent with the loss of such right if the channel became choked up by natural causes. § 44. The question at what point a river ceases to be tidal, or navigable, first arose in the courts in the case of not necessarily follow, because the tide flows and reflows in any particular place that there is therefore a public navigation, although of sufficient size"; and after reviewing the above cases of Mayor of Lynn v. Turner, and Miles v. Rose, he said further: "The strength of this prima facie evidence, arising from the flux and reflux of the tide, must depend upon the situation and nature of the channel. If it is a broad and deep channel, calculated for the purposes of commerce, it would be natural to conclude that it has been a public navigation; but if it is a petty stream, navigable only at certain periods of the tide, and then only for a short time, and by very small boats, it is difficult to suppose that it ever has been a public navigable channel. But even supposing this to have been at some time a public navigation, I think that from the manner in which it has been neglected by the public, and from the length of time during which it has been obstructed, it ought to be presumed that the rights of the public have been lawfully determined. Most probably the rights of the public (if they ever had any) arose from the flux and reflux of the tides of the sea, so as to make the channel navigable. If then the sea retreated, or the channel silted up, so as to be no longer navigable, why should not the public rights cease? If they arose from natural causes, why should not natural causes put an end to them? But they might also be put an end to by act of parliament, or by writ of ad quod damnum, and, perhaps, by commissioners of sewers, if there were any appointed for the district and they found that it would be for the benefit of the whole level. For these reasons it appears to me that if this case were sent down for trial again, the jury would be bound to find either that there never was a public navigation through the locus in quo, or that it has been determined by some lawful means." The opinions of Holroyd, J., and Littledale, J., were to the same effect. 17 Q. B. 339, 373, 374. See also Rex v. Douglas, 2 Ld. Kenyon, 499; Woolrych on Waters, 237. Rex v. Smith. In that case the city of London, acting under powers conferred by statute, was proceeding to construct a towing path upon the bed of the river Thames, and the defendants were indicted for destroying a pile driven in the course of the work between high and low-water mark near Richmond. In the statement of the case, the river was admitted to be "navigable"; but, as the right of the city was regarded as derived from the Crown's title to tide waters, it was contended in argument that the Thames above London Bridge was not navigable in the technical sense, although there was a regular rise and fall of the river caused by the accumulation and pressure backwards of the fresh water. Lord Mansfield said that the distinction between rivers navigable and not navigable, and those where the sea does or does not ebb and flow, was very ancient, but that the distinction then insisted on, between the case of the tide occasioned by the flux of the sea-water and the pressure backward of the fresh water, seemed to be entirely new.2 He said that the case did not state whether the water, where the tide rises at Richmond, is fresh or salt; but that it rather took it for granted that it is salt, describing the Thames generally as a navigable river. The point was simply raised in that case, and not decided." But it is settled in this country 12 Dougl. 441 (1780). In Horne v. Mackenzie, 6 Cl. & Fin. 628, 643, the question was whether the defendants had fished unlawfully by means of stake-nets, which was an illegal act by statute if done in a "river," but permissible in the sea; and it was held that the jury were improperly instructed that "the thing to be looked at is the absence or prevalence of the fresh water, though strongly impregnated by salt"; and that the absence or prevalence of salt water was a consideration of minor importance in such a case. The question was not altogether new, for Lord Hale says (De Jure Maris, c. 4, with reference to the extent to which a river is properly called an arm of the sea), that fresh rivers, "though they are public rivers, yet are not arms of the sea. But it seems that, although the water be fresh at high water, yet the denomination of an arm of the sea continues, if it flow and reflow as in Thames above the bridge." This case seems to have been misunderstood. In Angell on Watercourses, § 544, it is said of it that the point in question was by Lord Mansfield "pronounced new and inadmissible"; while in Attorney General v. Woods, 108 Mass. 439, Chapman, C. J., spoke of the question as there "settled." The point was indeed urged by counsel, but Lord Mansfield expressed no opinion upon it, saying |