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periodically covered and left dry, sometimes to a greater, sometimes to a less extent, exhibiting expanses more or less susceptible of the co-existence or alternation of terrene and aquatic rights, in a due subordination to be determined by the supreme law, utility to man.
10. Water has the power of diminishing and of adding to the quantity of the land. Man has also, to some extent, the like power. So that what was subject to the terrene may become subject to the aquatic, and what was subject to the aquatic may become subject to the terrene rights.
11. Utility determines where and when the aquatic and where and when the terrene rights shall prevail, and where either shall have exclusive or paramount sway; the principal conflict is on the frontier.
12. Their participation and the regulation of their participation in the general right, and the extent of their respective frontiers, must be determined by the actual or assumed agreement of nations, their treaties or the law of nations.
13. This external law, in an imperfect mode, regulates the relations of societies in contact with each other. Their agreement or assumed agreement provides for the enjoyment by each of its own acquisitions, without the interference of any other, with the measure or method of their subdivision.
14. The internal law provides, so far as it can, for the distribution and enjoyment of its possessions and acquisitions among and by the members of each community.
15. The external and internal law must proceed on the same principles.
16. To ascertain these principles we must again present to the mind the whole expanse and magnitude of the waters, the oceans, the seas, the lakes, with all their ramifications, their tributary rivers and affluent streams; the ponds, the diffuse and stagnant water, the pools, the subterranean fountains, and the descending rain.
17. We must ascertain the purposes to which they are applicable, and apportion them according to their applicability to the use of man. We must consider the relative importance of their uses, not only generally, but with regard to particular assemblages of men and their especial wants ; so that the great mass may conduce to the utmost extent to the profit and enjoyment of all. Water is the gift of nature, of which none can take permanent possession, in which absolute ownership cannot exist. It falls in showers, it gathers, it accumulates, it evaporates, it flows to fertilize the land, to feed and cleanse its inbabitants, and to make for them a great highway. These are the ordinations of Providence, these are the bounties it bestows; and all interference with their due enjoyment is in contravention of the natural law, and an infringement of the natural right. The office of civil ordinations and of social laws is to regulate the enjoy. ment so that all may best enjoy.
18. ENJOYMENT.—To enable us to form a proper judgment as to the rights to water, we must consider the nature of the thing. It is an element unsusceptible of permanent possession. The only possession which can be held of it is transient, determining with its use. After it has been used by one it may be employed by another, in its pure or in a deteriorated or an altered form. The flowing stream will eventually surmount every obstruction; even the water of the pond will evaporate or become partially decomposed. The sea is ever fluctuating and cbanging, the most powerful navy can only hold possession over the space which it occupies and can command, and will be expelled from that limited dominion by the first storm.
19. On this depends the natural law. The law of nations for reciprocal security and enjoyment has introduced a me. taphysical possession, or dominion, or ownership of the waters in and bordering upon each state ; and to render the enjoyment more complete, municipal laws have accorded a constructive possession, more or less absolute, in the subterranean fountain, the pond, and portions of the stream.
20. WATER may be considered as divided into the sea, the stream, and the fountain, a little of it as imprisoned in the pond.
21. THE SEA, OR SAVIGABLE AREL, is used in an extended sense. It comprises all the oceans, and seas, and navigable lakes, and all inlets from them into the land, and all rivers flowing into them so far up as they are in their natural state navigable from their mouths, whether the water be salt or fresh. (Ang. 73; Hale 8.)
22. It is to be gauged at its full, at the level called highwater mark, as if it were, although it never can be, full to that mark all the world over at the same time. This mark we call the shore-line; it is the ordinary high-water mark. In England it is fixed as a medium-line between spring and neap-tides throughout the year, including the equinoctial tides, but not any unusual tide due to accidental cause (Hale 12, 25, 26; Blundell v. Catteral, Lowe v. Govett, Storer v. Freeman, Attorney-General v. Chambers), whether indicated by the salt water alone or the elevation of the fresh water in rivers by reason of the rise of the sea; a more reasonable scale than that of the furthest winter-wave. (Inst. II. i. 2, 4.) But the more proper limit would be the ordinary spring-tide, when unaffected by violent wind.
23. Its fresh-water domain is to be measured when the channel of the stream is ordinarily full,-neither in drought, nor in flood, and extends to the furthest point to which it is navigable from its mouth.
24. This navigable area is subject to the marine law.
25. THE STREAM, OR RIVER, is water which flows perenpially in a definite course—whether its progress be fast or slow in a continuous current, or delayed, or temporarily detained in pits, flats, pools, or lakes; although its fountains are intermittent, or its bed occasionally exhausted by drought, or reduced to a nullah in certain seasons of the year; although the channel is varied by the wanderings, altered by the avulsive, or changed by the invasive force of the flood—from its bursting out of the earth, shaping for itself a channel, or its beginning to flow as the produce of collected rills to its absorption in the sea—rolling in tumultuous torrent, roaring down its falls, or gliding, slowly, silently along, it is a stream; but at the point to which it is navigable from its mouth it becomes subject to the marine, and ceases to be subject to the riparian law.
26. If it sink underground and pursue awhile a subterranean course, its underground channel is still subject to the riparian law. (Dickinson v. Grand Junction.)
27. The ostium fluminis comprehends the whole space between the lowest ebb and the mark of the highest flood. (Horne v. Mackenzie, Kintore v. Forbes, Moray v. Gordon.)
28. The stream is a distinct thing from the land over which it flows. (Brown v. Best.) It may be considered as the common property of the realm. No individual can appropriate it, or any branch of it. Were it otherwise, he might, by misapplication, lay a district waste. (Linlithgow v. Elphinstone.)
29. THE FOUNTAINS are the surface waters which have no definite course, pent in ponds, or little lakes, or winding down the declivities, among the rushes, the stones, or the grass, gushing up and diffusing themselves, or trickling over the brinks of the wellsthe stagnant or slowly percolating wells or waters, in swamps and spongy ground in the innumerable "springs lacunæ and cavities of the earth; the hidden springs traversing the varied strata, changing their courses as a lower and a still lower exit may be found. For good and for evil they are bestowed upon the land. (Broadbent v. Ramsbottom.)
30. These fountain waters are private or proprietary and subject to the terrene law, the law of the land, alike with the minerals among which they lie enthralled, until they have emerged or escaped from their bondage and mingled with and acquired the brilliancy and freedom of the stream and the rights of the riparian law.
31. SEA-BED.—The soil beneath the sea, as we have described it, the oceans, the seas, and all their ramifications into
the land, up to the low-water mark, is the (fundus) bed of the sea. That mark, the margin of the sea at low-water, we call the marine line or strand.
32. SEA-SHORE OR BEACH (Littus).—The land which lies under the influent sea as the tide rises from the marine line to its mark at ordinary high water is the beach or sea-shore. (Lowe v. Govett.) That high-water mark we call the shore
33. RIVER-BED (Fundus).—The ground subjacent to the navigable part of the fresh-water of the river in its ordinary state of fulness is the bed of the river, and its margin at that state is the river-line.
34. RIVER-SHORE(Littus).—The ground which lies between the river-line and the margin of the river at its highest state of fullness within the channel of the river, is the river-shore, and that upper line is the river-shore line.
35. BANK (Ripa).—All above the river-shore line is the bank of the river, as all above the sea-shore line is the bank of the sea.
36. The SEA-SHORE is in general distinguished from its adjacent bank by the presence of rock, shingle and sand, seaweeds or shells, and the absence of land plants, and unfitness for their cultivation.
37. The RIVER-SHORE is generally distinguished by bare rock, or gravel, or sand, mud, sedge, rushes, and other aquatic vegetation, unfitness for cultivation, and the absence of the · plants which flourish on dry land.
38. DISTRIBUTION OF JURISDICTION.-It is important, for ascertaining and duly appreciating the various rights, to present to the mind a clear and distinct notion of the following principles and consequent laws.
39. In the bed of the open sea (or ocean) the land is entirely subject and subservient to the rights of the water, and to the marine, a branch of the aquatic law.
40. In the streain and on the sea and rivershores, the water is a distinct thing from the land over which it flows.