Navigable waters

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.

Those waters which afford a channel for useful commerce. The Montello, 20 Wall. (U. S.) 430, 22 L. Ed. 391. The test by which the character of a stream as public or private is determined, is its navigability in fact; Fulmer v. Williams, 122 Pa. 191, 15 Atl. 726, 1 L. R. A. 603, 9 Am. St. Rep. 88; State v. Club, 100 N. C. 477, 5 S. E. 411, 6 Am. St Rep. 618.

In its technical sense, the term navigable, at common law, is only applied to the sea, to tide-waters, the bed or soil of which is the property of the crown. All other waters are, in this sense of the word, unnavigable, and are, prima facie, strictly private property; but in England even such waters, if navigable in the popular sense of the term, are, either of common right or by dedication, subject to the use of the public as navigable highways, the fee or soil remaining in the riparian proprietors; 20 C. B. N. S. 1; Com. v. Charlestown, 1 Pick. (Mass.) 180, 11 Am. Dec. 161. The rule of the common law, by which the ebb and flow of the tide has been made the criterion of navigability, has never been adopted in any of the United States, or, if adopted, it has been in a form modified and improved to fit the condition of the country and the wants of its inhabitants. According to the rule administered in the courts of this country, all rivers which 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; Harrison v. Fite, 148 Fed. 781, 78 C. C. A. 447; or which are capable of use “for the floating of vessels, boats, rafts, or logs”; Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641; Smart v. Lumber Co., 103 Me. 37, 68 Atl. 527, 14 L. R. A. (N. S.) 1083; Hot Springs L. & Mfg. Co., 106 Va. 176, 55 S. E. 580, 9 L. R. A. (N. S.) 894 (but see American River W. Co. v. Amsden, 6 Cal. 443; Haines v. Hall, 17 Or. 165, 20 Pac. 831, 3 L. R. A. 609; Spokane Mill Co. v. Post, 50 Fed. 429; Falls Mfg. Co. v. Imp. Co., 87 Wis. 134, 58 N. W. 257; are subject to the free and unobstructed navigation of the public, independent of usage or of legislation; Treat v. Lord, 42 Me. 552, 66 Am. Dec. 298; Morgan v. King, 18 Barb. (N. Y.) 277; Homochitto River Com'rs v. Withers, 29 Miss. 21, 64 Am. Dec. 126. See Gerrish v. Brown, 51 Me. 256, 81 Am. Dec. 569; Olson v. Merrill, 42 Wis. 203; Escanaba Co. v. Chicago, 107 U. S. 682, 2 Sup. Ct. 185, 27 L. Ed. 442. Water navigable for pleasure boating must be regarded as navigable; Attorney General v. Woods, 108 Mass. 436, 11 Am. Rep. 380; but the mere capacity to pass in a boat of any size, however small, from one stream or rivulet to another, is not sufficient to constitute a navigable river of the United States; Leovy v. U. S., 177 U. S. 621, 20 Sup.,Ct. 797, 44 L. Ed. 914. To make a stream a highway it must at least be navigable or floatable in its natural state at ordinary recurring winter freshets long enough to make it useful for some purpose of trade or agriculture; Banks v. Frazier, 111 Ky. 909, 64 S. W. 983; Harrison v. Fite, 148 Fed. 781, 78 C. C. A. 447; People v. Lumber Co., 107 Cal. 221, 40 Pac. 531, 48 Am. St. Rep. 125; Karnin v. Norto catch fish in a body of water does not are, and what are not, highways, at. commake it navigable; Bolsa Land Co. v. Bur- mon law; Browne v. Scofield, 8 Barb. (N. dick, 151 Cal. 251, 90 Pac. 552, 12 L. R. A. Y.) 239; but it has been held that w 7 hat is a (X. S.> 275. navigable stream is a mixed question of law Navigable streams are highways; Attorney and fact; if a stream is not navigable the General v. Woods, 108 Mass. 45(5, 11 Am. legislature cannot declare it to be so, because Hep. 580; Lamprey v. State, 52 Minn. 181, (lie legislature cannot appropriate it to pub- 53 N. W. 1139, 18 L. R. A. 670, 38 Am. St. lic use without provision for compensation; Rep. 541: Grand Rapids v. Towers, 89 Mich. Morgan v. King, 35 N. Y. 454, 91 Am. Dec. 58. 94, 50 N. W. 661, 14 L. R. A. 49S, 28 Am. The technical title to the bods of naviga- 8t. Rep. 276; a navigable stream is not a ble rivers of the United States is either in the highway in the sense that that word is used states in w’liich the rivers are situated or in in the constitution of South Carolina, forbid- the riparian owners, depending on the local ding the enactment of local or special laws law. It is a qualified one, and subordinate to lay out, open, alter or work roads or high- to the public right of navigation and subways; Manigault v. Springs, 199 U. S. 473, ject to the absolute power of congress over 26 Sup. Ct. 127, 50 L. Ed. 274. the improvement of navigable rivers. Un- The navigable waters of the United States der the constitution, congress can adopt any are such as are navigable in fact; Scranton means for the improvement of navigation v. Wheeler, 57 Fed. 803, 6 C. C. A. 585, 16 that are not prohibited by that instrument U. S. App. 152; and which by themselves, or itself. The judgment of congress as to in connection with other waters, form a con- whether a construction in or over a navigatinuous channel for commerce with foreign ble river is or is not an obstruction to navicountries or among the states; Miller v. New gation is an exercise of legislative power and York, 109 U. S. 385, 3 Sup. Ct. 228, 27 L. Ed wholly within its control and beyond judicial 971. review. The flow of the stream of a naviga- A river may be navigable below the ebb ble river is in no sense private property, and flow’ of the tide in the sense of the com- and there is no room for judicial review 7, at mon law, and, in fact, navigable above; and the instance of a private owner of the hanks the question of boundary in respect to lands of the stream, of a determination of congress adjoining it will be determined by one prin- that such flow is needed for the improvement ciple above, and by another below tide-wa- of navigation. One placing obstructions In ter; Attorney General v. R. Co., 27 N. J. a navigable stream under a revocable permit Eq. 1. It is not necessary that the stream of the secretary of war does not acquire any should be navigable all the year round; right to maintain them longer than the gov- Thunder Bay It. B. Co. v. Speechly, 31 Mich. ernment continues the license. Private right 356, 18 Am. Rep. 18-1; Bueki v. Cone, 25 Fla. to running water in a great navigable stream 1, 6 South. 160. There can he no prescrip- ! is inconceivable. Every structure in the wative right to maintain or continue an obstruc- 1 ter of a navigable river is subordinate to tion to the navigation of a public stream; the right of navigation and must be removed, Olive v. State, 86 Ala. 88, 5 South. G53, 4 even if the owners sustain a loss thereby,

See Navigable.
—P ercolating waters. Those which pass through the ground beneath the surface of the earth without any definite channel, and do not form a part of the body or flow, surface or subterranean, of any watercourse. They may be either rain waters which are slowly infiltrating through the soil or waters seeping through the banks or the bed of a stream, and which have so far left the bed and the other waters as to have lost their character as a part of the flow of that stream. Vineland Irr. Dist. v. Azusa Irr. Co., 120 Cal. 480, 58 Pac. 1057. 46 In It. A. 820; Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585; Herriman Irr. Co. v. Keel, 25 Utah, 96, 69 Pac. 719; Deadwood Cent. It. Co. v. Barker, 14 S. D. 558, 86 N. W. 619; Montecito Val. Water Co. v. Santa Barbara, 144 Cal. 578, 77 Pac. 1113.

Defined under Water in Black's Law Dictionary.

Those waters which afford a channel for useful commerce. 20 Wall. 480.