River

A natural stream of water flowing betwixt banks or walls in a bed of considerable depth and width, being so called whether its current sets always one way or flows and reflows with the tide.

Woolrych, Wat. 40; State v. Gilmanton, 14 N. II.

4G7.; A body of flowing water; a running stream of no specific dimensions, larger than a brook or rivulet, and pent on either side by walls or banks.

Board of Com’rs v. Castetter, 7 Tnd. App. 309, 33 N. E. 986, 34 N. E. 6S7.

Overflow waters that continue in a general course, although without defined banks, back into the water course from which they started or into another water course, do not become surface waters, but remain a part of the water course; Town of Jefferson v. Ilicks, 23 Okl. 684, 102 Pac. 79, 24 L. R. A. (X. S.) 214. Rivers are either public or private. Public rivers are divided into navigable and non-navigable, — the distinction being that the former flow and reflow with the tide, while the latter do not. Both are navigable in the popular sense of the term; Pe.\ roux v. Howard, 7 Pet. (U. S.) 324, 8 L. Ed. 700; Com. v. Chapin, 5 Pick. (Mass.) 199, 16 Am. Dec. 3S6; Com’rs of Canal Fund v. Kempshall, 26 Wend. (N. Y.) 404; 4 B. & C. 602. At common law, the bed or soil of all rivers subject to the ebb and flow of the tide, to the extent of such ebb and flow, belongs to the crown; and the bed or soil of all rivers above the ebb and flow of the tide, or in which there is no tidal effect, belongs to the riparian proprietors, each owning to the centre or thread, — ad filum aquw, which see, — where the opposite banks belong to different persons; Daveis 149; 5 B. & Aid. 268. In this country the common law has been recognized as the law of many of the states,— the state succeeding to the right of the crown; Ingraham v. Wilkinson, 4 Pick. (Mass.) 268, 16 Am. Dec. 342; Com’rs of Canal Fund v. Kempshall, 2G Wend. (N. Y.) 404; Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641; Adams v. Pease, 2 Conn. 481; Stuart v. Clark’s Lessee, 2 Swan (Tenn.) 9, 58 Am. Dec. 49; Walker y.

Board, 16 Ohio, 540. See Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018.

But in some states the commonlaw distinction founded on the tide is not recognized, and it is held that the ownership of the bed or soil of all rivers navigable for any useful purpose of trade or agriculture, whether tidal or fresh-water, is in the state; Shrunk v. Nav. Co., 14 S. & R. (Pa.) 71; Collins v. Benbury, 25 N. C. 277, 38 Am. Dec. 722; Cates Ex’rs v. Wadlington, 1 Mc Cord (S. C.) 580, 10 Am. Dec. 699; Mc Manus v. Carmichael, 3 la. 1; Com’rs of Homochitto River v. Withers, 29 Miss. 21, 64 Am. Dec. 126; Saunders v. R. Co., 71 Hun (N. Y.) 153, 23 N. Y. Supp. 927. the ownership of the crown extends to high-water mark; Ang. Tide-Wat. 69; 3 B. & Aid. 967; and in several states this rule has been followed; Gould v. R. Co., 12 Barb. (N. Y.) 616; Bell v. Gough, 23 N. J. L. 624; Com. v. Alger, 7 Cush. (Mass.) 53; Simons v. French, 25 Conn. 346; New Jersey Zinc & Iron Co. v. Canal & Banking Co., 44 N. J. Eq. 398, 15 Atl. 227, 1 L. R. A. 133; Hoboken v. R. Co., 124 U. S. 656, 8 Sup. Ct. 643, 31 L. Ed. 543; but in others it has been modified by extending the ownership of the riparian proprietor, subject to the servitudes of navigation and fishery, to low- water mark; Lehigh Valley R. Co. v. Trone, 28 Pa. 206; Thurman v. Morrison, 14 B. Monr. (Ivy.) 367; Lessee of Blanchard v. Porter, 11 Ohio, 13S; Webb v. Demopolis, 95 Ala. 116, 13 South. 289, 21 L. R. A. 62; unless these decisions may be explained as applying to fresh water rivers; 2 Smith, Lead. Cas. 224. In Wisconsin the riparian ownership extends to the thread of the stream, subject, if such stream be navigable, to the right of the public to its use as a public highway for the passage of vessels; Kaukauna Water Power Co. v. Canal Co., 142 U. S. 254, 12 Sup. Ct 173, 35 L. Ed. 1004. In Michigan, a grant of land bounded by a stream, whether navigable or not, carries with it the bed of the stream to the centre line thereof; Grand Rapids & I. R. Co. v. Butler, 159 U. S. 87, 15 Sup. Ct. 991, 40 L. Ed. 85. The banks of public rivers are private property of the adjacent owners as fully as their other land. The public has no right to land upon them or upon the shore adjacent thereto; Wetinore v. White Lead Co., 37 Barb. (N. Y.) 70. There is no right of way along the margin of lakes and navigable rivers unless acquired by express grant or prescription; Ledyard v. Ten Eyck, 36 Barb. (N. Y.) 102. One floating his property down a stream has no right, without a license, to use the banks of the stream to aid him; Olson v. Merrill, 42 Wis. 203. The right to raft timber does not carry with it the right to deposit it upon private property preparatory to being rafted; Compton v. Hankins, 90 Ala. 411, 8 South. 75, 9 L. R. A. 387, 24 Am. St. Rep. 823; Lorman v. Benson, 8 Mieh. 18, 77 Am. Dec. 435; Smith v. Atkins, 110 Ky. 119, 60 S. W. 930, 53 L. R. A. 790, 96 Am. St. Rep. 424. The banks of a river are not subject to the servitude of use by navigators. They cannot land on the banks against the will of the owner except in case of peril, in which case vessels may land, cither boat or cargo, at any point that safety may require; Ensmiriger v. People, 47 111.

384, 95 Am. Dec. 495.

Upon the acquisition of territory by the U. S., whether by cession from one of the states, or by treaty with a foreign country, to the United States for the benefit of the whole people and in trust for the several states; Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331. In England, many rivers originally private have become public, as regards the right of navigation, either by immemorial use or by acts of parliament; Woolr. Wat. 40. In this country, all rivers, whether tidal or freshwater, are of common right, navigable highways, if naturally capable of use for the floating of vessels, boats, rafts, or even logs, or “whenever they are found of sufficient capacity to float the products of the mines, the forests, or the tillage of the country through which they flow, to market;” Browne v. Scofield, 8 Barb. (N. Y.) 239; Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641; Scott v. Willson, 3 N. H. 321; People v. St. Louis, 5 Gilman (Til.) 351, 48 Am. Dec. 339; Stuart v. Clark’s Lessee, 2 Swan (Tenn.) 9, 58 Am. Dec. 49; Depew v. Board, 5 Ind. 8. As to the navigability of rivers, see Navigable Waters. The state has the right to improve all such rivers, and to regulate them by lawful enactments for the public good; Mc Cullough v. Wall, 4 Rich. (S. C.) 69, 53 Am. Dec. 715; Moor v. Yeazie, 31 Me. 361; Board of Com’rs. v. Pidge, 5 Ind. 13. Any obstruction of them without legislative authority is a nuisance, and any persons having occasion to use the river may abate the same, or if injured thereby, may receive his damages from its author: Minturn v. Lisle, 4 Cal. 180; Arundel v. M’Culloch, 10 Mass. 70; Missouri River Packet Co. v. R. Co., 1 Mc Crary 281, 2 Fed. 285; Seaman v. Mayor, SO N. Y. 239, 30 Am. Rep. 612; Garitee v. Mayor, 53 Md. 422; Meyers v. St. Louis, 8 Mo. App. 266. See Bridge. One who seeks to abate an obstruction in a navigable stream and for an injunction must allege and show that the commerce for which he would utilize the stream is lawful; Spokane Mill Co. v. Post, 50 Fed. 429. By the ordinance of 17S7, art. 4, relating to the northwestern territory, it is 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; Com Fs of Ilomoehitto River v. Withers, 29 Miss. 21, 04 Am. Dec. 126. Congress has absolute power over the navigable waters of the U. S. and may declare what constitutes obstruction thereto. The act of March 1, 1893, created a California debris commission and prohibited hydraulic mining “directly' or indirectly injuring the navigability” of the Sacramento and San Joaquin river systems; the commission may, on petition, grant permission to mine. The act is intended to prohibit such mining until such permission is grarited; North Bloomfield Gravel Min. Co. v. U. S., 83 Fed. 2, 27 C. e.

A. 395.

To bring obstructions and nuisances in nava federal statute directly applicable to such streams; U. S. v. Boom Co., 81 Fed. 658, 26