navigable

waters that are "navigable in fact," meaning that "they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water." The Daniel Ball, 10 Wall., at 563 .

Capable of being navigated. In English law, only waters in which the tide flows are navigable in the technical sense. 5 Taunt. 705; Davies, 149. In American law, any water is navigable which is used as a means of useful commerce. 112 111. 611; 42 Minn. 532; 110 N. y. 380. The navigation need not b3 by boats. Wa-,ters used for floating rafts or logs are public highways for that purpose. 31 Mich. 336; 58 N. H. 304; 72 N. Y. 21L The capacity for navigation need not be perennial. 42 Wis. 203; 17 Ore. 165. Nor need it be continuous through the entire length of the stream. 31 Me. 9. The Niagara river has been held navigable, notwithstanding the obstruction of the falls. 37 Hun. (N. Y.) 537. "Those only are navigable waters where the public pass and repass upon them with vessels or boats in the prosecution of useful occupations. There must be some commerce or navigation which is essentially valuable. A hunter or fisherman, by drawing his boat through the waters of a brook or shallow creek, does not create navigation, or constitute their waters channels of commerce. 20 Conn. 217.

Capable of being navigated; that may be navigated or passed over in ships or vessels. But the term is generally understood in a more restricted sense, viz., subject to the ebb and flow of the tide. "The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all, of the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide, and from this circumstance tide-water and navigable water there signify substantially the same thing. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide-water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length. A different test must therefore be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers, in law, which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they consti-fute navigable waters of the United States, within the meaning of the acts of congress, in contradistinction from the navigable waters of the states, when they form, in their ordinary condition, by themselves, or by uniting with other waters, 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." The Daniel Ball, lo Wall. 563, 19 L. Ed 999. And see Packer v. Bird, 137 U. S. 661, 11 Sun. Ct 210, 34 In Ed 819; The Genesee Chief, 12 How. 455. 13 L. Ed 1058; Illinois Cent. R. Co. v. State, 146 U. S. 387, 13 'Sup. Ct. 110, 36 L. Ed. 1018. It is true that the flow and ebb of the tide is not regarded, in this countrv, as the usual, or any real, test of navigability; and it only operates to impress, prima facie, the character of being public and navigable, and to place the onus of proof on the party affirming the contrary. But the navigability of tide-waters does not materially depend upon past or present actual public use. Such use may establish navigability, but it is not essential to give the character. Otherwise, streams in new and unsettled sections of the country, or where the increase, growth, and development have not been sufficient to call them into public use, (would be excluded, though navigable in fact, thus making the character of being a navigable stream dependent on the occurrence of the necessity of public use. Capability of being used for useful purposes of navigation, of trade and travel, in the usual and ordinary modes, and not the extent and manner of the use, is the test of navigability. Sullivan v. Spotswood, 82 Ala. 166, 2 South. 716.

— Navigable river or stream. At common law, a river or stream in which the tide ebbs and flows, or as far as the tide ebbs and flows. 3 Kent, Conun. 412, 414, 417, 418; 2 Hil. Real Prop. 90, 91. But as to the definition in American law, see supra

— Navigable waters. Those waters which afford a channel for useful commerce. The Montello, 20 Wall. 430, 22 L. Ed. 391.

That may be navigated or passed over in ships or vessels; that may be used for navigation. Navigable river: at common law a river in which the tide ebbs and flows, so far as it ebbs and flows; in the law of the United States, in general, a river in fact navigable, so far as it is navigable.

Capable of being navigated; that may be navigated or passed over in ships or vessels. But tho term is generally understood in a more restricted sense, viz., subject to the ebb and flow of the tide. “The doctrine of the common law as to the nay- {gability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any testat all, of the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide, and from this circumstance tide-water and navigable water thore signify substantially the same thing. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide-water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length. A different test must therefore be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers, in law, which are navigable infact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the eustomary modes of trade and travel on water. And they constitute navigable waters of the United States, within the meaning of tho acts of finary condition, by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or forcign countries in the customary modes in which such commerce is conducted by water.” Field, J., 10 Wall. 563. It is true that the flow and ebb of the tide is not regarded, in this country, as the usual, or any real, test of navigability; and it only operates to impress, prima facie, the character of being publie and navigable, and to place the onus of proof on the party aillrming the contrary. But the navigability of tide-waters does not materially depend upon past or present actual public use. Such use may establish navigability, but it is not essential to give the character. Otherwise, streams in new and unscttled sections of the country, or where the increase, growth, and development have not becn sufficient to call them into public use, would be excluded, though navigable in fact, thus making the character of being a navigable stream dependent on the occurrence of the necessity of public use. Capability of being used for useful purposes of navigation, of trade and travel, in the usual and ordinary modes, and not the extent and manner of the use, is the test of navigability. 82 Ala. 165, 2 South, Rep. 718. NAVIGABLE RIVER or STREAM. A river or stream in which the tide ebbs and flows, or as far as the tide ebbs and flows. 3 Kent, Comm. 412, 414, 417, 418; 2 Hil. Real Prop. 90, 91.

A river is navigable at common ebbs and flows. Navigation Act The 12 Car. II. c. 18, and seamen to trade with British colonies.

Adapted to bear vessels in use; capable of being navigated; useful for commercial communication by water. The terra navigable waters, in the act of Peb. 26, 1845, is not to be understood in the same sense as natural streams. It must be held to include an artificial communication, such as a canal. Scott v. The Young America, 1 Newh. 101, 106. The navigableness of a river does not cease at a point where navigation is interrupted by falls; where a stream is navigable for one hundred and twenty miles above the falls, it is a navigable stream. Spooner <j. Mc Connell, 1 Mc Lean, 337. A river above the ebb and flow of the tide may be navigable, when it has sufficient depth and width to float a vessel used in the transportation of freight or passengers; and this has been extended to its capacity to float rafts of lumber. To go beyond this, and declare a stream navigable which can float a log, would be to turn a rule, intended for the benefit of the public, into an instrument of serious detriment to individuals, if not of actual private oppression. The only other instance in which a stream is navigable is when it is so declared by statute; and when so declared navigable to a certain point, it is, by implication, declared non-navigable above that point. American River Water Co. v. Amsdeu, 6 Col. 443. A cove cannot be said to be navigable merely because, at times, a fish-boat or skiff or canoe may be pushed through its waters, or because, in the winter months, a small sea-boat is laid up in it to avoid the ice of the river. This is not navigation. That only is navigation, and those waters only are navigable, where the public pass and repass with vessels or boats in the prosecution of useful occupations. There must be some commerce which is of value. A hunter or fisherman, by drawing his or constitute the waters navigable. Wethersfield v. Humphrey, 20 Conn. 217. There are two classes of streams within and bordering upon Indiana which are qalled navigable streams and public highways. One class is only navigable for certain kinds of craft, and is not visited by vessels from the navigable waters of other states; but the other class is navigable for such vessels. The state has exclusive jurisdiction over the first class, and may authorize the streams of which it is composed to be obstructed for the public good;, and no action can be sustained therefor, except private property be taken or injured. Over the streams of the second class, in the absence of congressional interference, the state has a like jurisdiction, so far as these streams are within her territorial limits; but the national legislature may interfere, and deprive the state of t Ma jurisdiction. Depew v. Board of Trustees, 5 Ind. 8. I A stream cannot be said to be navigablei in the legal sense of that term, unless it be of such a character as to be useful to the public as a channel of trade or commerce. Neaderhouser v. Sta1«, 28 Ind. 257, 270. Rivers are navigable as far as the tide ebbs and flows. Commonwealth v. Chapin, 5 Pick. 199; Cobb v. Davenport, 32 N. J. L. 369; People v. Tibbetts, 19 N. Y. 523. The ebb and flow of the tide is not the only test of navigability. Mc Manus v. Carmichael, 3 Iowa, 1. Not every ditch in which the salt-water ebbs and flows, through the extensive saltmarshes along the coast, and which serve to admit and drain off the saltwater from the marshes, can be considered a navigable stream. Nor is every small creek in which a fishing skiff or gunning canoe can be made to float, at high water, to be deemed navigable. To have this character, a stream must be navigable to some purpose useful to trade or agriculture. It is not a mere possibility of being used under some circumstances, as at extraordinary high tides, which will give the character of a navigable stream, but the waters must be generally and commonly useful. Eowe v. Granite Bridge Corporation, 21 Pick. 344. "Where the legislature authorized the building of a bridge over a navigable stream, " either solid or on piles, leaving sufficient passages for the water," as certain commissioners might deem necessary, and a bridge was built by direction of those commissioners, two-thiri of the length of which was solid, and the other third, over the channel and deeper parts of the stream, was on piles; and scows, gondolas, and boats and vessels without masts, or with movable masts, empty or loaded, could and did advantageously pass and repass under the bridge, it was held that the stream had not ceased to be navigable, and the county commissioners had no authority to lay a The expression navigable water includes tide-water navigable for pleasure, although the craft thereon have never been used for purposes of trade or agriculture. Attorney- General V. Woods, 108 Mass. 436. There is a distinction at common law between navigable rivers, technically so called, and rivers which have the capacity to float boats, rafts, and logs, and are subject to the servitude of the public, and which are therefore denominated public highways. All rivers where the tide ebbs and flows are, by the common law, termed navigable rivers. In the technical sense of the term, a river is deemed navigable as high from the mouth as the tide ebbs and flows. In Maine, all streams of sufficient capacity, in their natural condition, to float boats, rafts, or logs, are denominated public highways, and as such are subject to the use of the public. In many of the states which are intersected or bounded by the great rivers of the continent, the common-law distinction between navigable rivers and those which are simply recognized as highways does not exist. In Maine, the common-law definition has been fully recognized. Veazie v. Dwinel, 50 Me. 479. The true test in determining the right of public use in fresh-water streams, as public highways, is, whether a stream is inherently and in its nature capable of being used for the purposes of commerce; for the floating of vessels, boats, rafts, or logs. Where a stream possesses such a character, the easement exists. Moore v. Sanborne, 2 Mich. 519; Spring v. Russell, 7 Me. 273; Browne V. Scofield, 8 Barb. 239. The term navigable waters, as used in Mich. Compiled Laws, § 5944, has the same meaning as in the ordinance of 1787, and is not Umited to waters where the tide ebbs and flows. Tyler v. People, 8 Mich. 320. Not every ditch navigable for small boats at certain tides is a navigable water; but the legislature is the judge in regard to the use of any stream as a highway for boats and vessels, and when it shall be so considered and protected as such, or when it may be obstructed. Glover v. Powell, 10 N. J. Eq. 211. A stream in which the tide does not ebb and flow, and which is not navigable for boats or vessels or rafts, and has not been declared a public highway by statute, is not a navigable stream, within the meaning of the authorities, so as to subject it to the use of the public, but is private property. Munson v. Hungerford, 6 Barb. 265. A stream eight feet deep and sixty yards wide, with an unobstructed navigation for sea vessels from its mouth to the ocean, is a navigable stream, and its edge at lowwater mark is the boundary of the adjacent land. Wilson v. Forbes, 2 Dev. L. 30. In North Carolina, the ebb and flow of the tide is no rule for determining whether a river is navigable or not. Wilson v. The common-law criterion of a navigable stream is the flow and reflow of the tide; the civil-law criterion is the capability and suitableness of the stream to the purposes of navigation, in the ordinary state of the water. In the state of Tennessee, the civillaw criterion has been adopted; but in all other respects the principles of the common law regulating and defining the rights of the public and the riparian owners remain unchanged. If a watercourse is navigable in a legal sense, the soil covered by the water, as well as the use of the stream, belongs to the public. If it is navigable only in the ordinary sense, the ownership of the bed of the stream is in the riparian proprietors, and the public have an easement therein for the purposes of transportation and commercial intercourse. If the stream is so shallow as to be unfit for such purposes of transportation and commerce, the rights both of property and use are wholly and absolutely in the owners of the adjoining land. Stuart v. Clark, 2 Swan, 9. In Pennsylvania, all rivers and streams of water that are subject to tides, or capable of being navigated in the common sense of the term, are treated as navigable; and grants of the adjoining soil are not usque adJUum medium aquoe, hut only to lowwater mark; the soil and water found between the lines that describe low water being retained as eminent domain for the use of all citizens. Flanagan u. Philadelphia, 42 Pa. St. 219. There being no tidal waters in Ohio, " navigable " is not there used in the technical sense of the common law. Hickok v. Hine, 23 Ohio St. 523.