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. 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." In the Genessee Chief case, supra, prior decisions" were overruled, the Chief Justice saying that the court, "under the natural influence of precedents and established forms, a definition (of a navigable stream) originally correct was adhered to and acted on, after it had ceased, from a change in circumstances, to be a true description of public waters." Early cases from North Carolina,18 Pennsylvania,19 Tennessee,20 New York" and from many other states could be cited to the above as the American doctrine. In the Canal Appraisers' case, supra, there is very elaborate consideration of the entire subject and much citation of authority. This doctrine is scarcely now denied in any state.

47. Public Rights in Floatable Streams.-The rule is general that when a stream is a boundary, the riparian owner holds only to high-water mark when it is navigable and to mid-stream when it is non-navigable, yet it does not follow necessarily, that it is only in the former that the public have rights. In a Massa

17 Thomas Jefferson, 10 Wheat. 428; Steamboat Orleans v. Phoebus, 11 Pet. 175.

18 Wilson v. Forbes, 13 N. C. 30.

19 Carson v. Blazee, 2 Binn. 475, 4 Am. Dec. 463.

20 Elder v. Buenes, 6 Humpt. 366.

21 People v. Canal Appraisers, 33 N. Y. 461.

chusetts case, 22 decided in 1851, it was said by Shaw, Chief Justice, that: "We are not aware that the right of navigation for boats, etc., in inland rivers, above tide-waters, though technically not navigable, has ever been denied or seriously drawn in question. Many judicial decisions have declared the right of passage with boats and vessels on rivers not navigable, to be a public right and many acts of legislation have been passed authorizing dams across rivers, and wing-dams, connected with locks and side canals, to secure and facilitate their public right of inland navigation." Chief Justice Shaw in this excerpt may not have accepted the doctrine laid down in the Daniel Ball case, supra, that in this country the test of navigability was not as at common law, and by "rivers not navigable" he may have been referring only to those non-tidal. But other cases show that in fresh water streams not generally navigable there exists public rights. In a prior Massachusetts case,2 in which it was complained, that in a non-navigable part of Connecticut river there were obstructions hindering the passage of fish, it was said there was a public right which could be regulated and enforced by statute. The court referred to an English case decided by Lord Ellenborough in 1806." This case concerned weirs in a river which emptied into another river. It was said: "The erection of weirs across rivers was reprobated in the earliest periods of our law. They were considered as public nuisances. The words of Magna Charta are that 'all weirs from hence

22 Com. v. Alger, 7 Cush. 53, 99. 23 Com. v. Phapin, 5 Pick. 199. 24 Weld v. Hornby, 7 East. 194.

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forth shall be utterly pulled down by Thames and Medway and through all England, etc.,' the right to have fish run was a common right, so in this country the right to float logs is of public right, though in a stream only navigable in this sense." As to this kind of stream it has been said: "The third class of public highways, floatable streams, are not, so far as I know, recognized in England, and I doubt whether they in point of fact exist in England. But they are very common in the United States, and, as we have seen, while they are the private property of riparian owners, yet the public has a right to use them as public highways, to float their lumber and other product of their land to mill or market, and the riparian proprietor cannot so use these streams as unreasonably to incommode and hinder the public from using them for such floating purposes. 9925 Chief Justice Kent in 1805 referred to Sir Matthew Hale as holding "generally that fresh rivers, as well as those that ebb and flow, may be under the servitude of the public interest and may be of common or public use for the carriage of boats, etc., and in that sense may be regarded as common highways of water," and there are numerous American cases, that the purposes of commerce in the floating of boats, rafts and logs give to streams capable of being so used the character of a public highway. Legislation declaring streams "public highways for all the purposes of floating and rafting lumber, logs and timber upon their waters" frequently has been upheld." And generally it may be

25 Gaston v. Mace, 33 W. Va. 14, 10 S. E. 60, 5 L. R. A. 392, 25 Am. St. Rep. 848.

26 Palmer v. Mulligan, 3 Caines 307, 318, 2 Am. Dec. 270. 27 Harold v. Jones, 86 Ala. 274, 5 So. 438, 3 L. R. A. 406.

said, in accordance with many decisions, that in this country there is a servitude of the public interest in streams and waters where they may be made serviceable to the public, notwithstanding there is no immemorial usage or custom therefor.28 In a Maine case2 the principle applicable to this country is embodied in the following language: "If a stream could be subject to public servitude by long use only, many large rivers in newly settled states and some in the interior of this state, would be altogether under the control and dominion of the owners of their beds, and the community would be deprived of the use of these rivers which nature has plainly declared to be public highways. The true test, therefore, to be applied in such cases is whether a stream is inherently and in its nature capable of being used for purposes of commerce for the floating of vessels, boats, rafts or logs. Where a stream possesses such a character, then the easement exists, leaving to the owners of the bed all other modes of use not inconsistent with it." In a Michigan case it is said: "It is of the first importance that the rights of the public be recognized to the free use of all streams susceptible of any valuable floatage. In this commerce our lumbering interests sustain and will continue to sustain an important part and their success depends to a vast if not entire extent upon this principle. A moment's reflection will convince us that a liberal application and extension of the common law rule and its adoption to our condi

30

28 Spooner v. McConnell, 1 McLean 250; Spooner v. Crawford, 10 Johns. 237; Wadsworth v. Smith, 11 Me. 278, 26 Am. Dec. 525; Scott v. Willston, 3 N. H. 321.

29 Brown v. Chadbourne, 31 Me. 9, 50 Am. Dec. 641. 30 Moore v. Sanborne, 2 Mich. 519, 59 Am. Dec. 209.

tion and want lies at the bottom of this branch of our trade." But this principle has its limitations in not being applicable to streams which in their ordinary state are not capable of being made to serve any public interest.32

§ 48. Public Right in Lakes Under American Law. --In 1830 Chancellor Walworth of New York Supreme Court of Judication speaking of the common law rule as to navigable water said: "The principle itself does not appear to be sufficiently broad to embrace our large fresh water lakes or inland seas, which are wholly unprovided for by the common law of England." But here he was speaking of the rights of riparian owners and not as to any public rights in fresh water lakes. The Supreme Court of the United States as to one of the Great Lakes, said:33 "The state holds the title to the lands under the navigable waters of Lake Michigan, within its limits, in the same manner that the state holds title to soils under tidewater, by the common law, and that title necessarily carries with it control over the waters above them, whenever the lands are subjected to use. But it is a title different in character from that which the state holds in lands intended for sale. It is a title held in trust for the people of the state that they may enjoy the navigation of the waters, carry on commerce over them and have liberty of fishing therein freed from the obstruction or interference of private parties." Chief Justice Kent said that: "In this country our

31 For other cases supporting this view, see Morgan v. King, 18 Barb. 277; Rowe v. Granite Bridge Corporation, 21 Pick. 344.

32 Rhodes v. Otis, 33 Ala. 578, 73 Am. Dec. 439, and cases cited. 33 Ill. Cent. Railroad v. Illinois, 146 U. S. 387, 452, 13 Sup. Ct. 110, 36 L. Ed. 1018.