Council of Kent, to the Governor-General, under the same Act, stating that over two-thirds of the freeholders of, etc., had petitioned the Council for a survey to be made of the line in dispute, in order to clear up a doubt that existed as to the site of the concession in question, owing to the dispute that had arisen out of the different surveys, and referring his Excellency to a copy of the petition, by which it would be seen that the petitioners bound themselves to be governed by the conditions of 12 Vic., c. 35, s. 31, (a) and praying that the said line might be surveyed. It was proved, and not disputed, that the necessary number of resident landholders under the Act had applied for the survey, but it was objected that the petition did not shew this:-Held, following Cooper v. Wellbanks, (b) that everything was to be presumed to be done correctly until the contrary was proved, and here it had been proved that the necessary number of persons under the Act had applied for the survey:— Held, also, as to the other objections, viz., that the petition did not shew any want or obliteration of the original survey, and that neither petition nor memorial prayed for placing monuments, that the two documents could not be read in any other sense than as containing an application to the Governor, requesting the making of the survey under the Act, and if to be made under the Act, then that the marking by permanent stone boundaries, under the direction of the Commissioner of Crown Lands, in the manner prescribed by the Act, was an incident to the survey necessarily involved in the application for the survey, and therefore held that the petition was sufficient. (c)

As to public highways in the navigable rivers of this

(a) C. S. U. C. c. 93, s. 6.

(b) 14 U. C. C. P. 364.

(c) Reg. v. M'Gregor, 19 U. C. C. P. 69.

country, the civil law prevailed in the whole Province of Quebec until the division thereof in 1792. The 32 Geo. 3, c. 1, which introduced into the Province of Ontario the law of England as to property and civil rights, included the law as to highways on roads and in streams. After the passing of that Act, the civil law continued. applicable to Quebec. Although, in this Province, we have adopted the law of England as to public highways, yet, as in other cases of our adoption of English laws, it only prevails here so far as applicable to the state and condition of this country. It is obvious that usage from time immemorial, which, in England, is a material ingredient in determining whether a river is a highway or not, could not be applied to any of the inland waters in Ontario, unless presumed in relation to the wandering tribes who may have roamed through this part of North America, before its discovery by European navigators. (a)

The 32 Geo 3, c. 1, s. 3, superseded the former law of Canada (or the civil law still prevailing in the Province of Quebec), and in introducing the common law of England must be taken proprio vigore to have rendered all navigable waters, existing at the time of its introduction, publici juris, and more especially if previously entitled to have been so regarded under the abrogated law. (b)

This being a newly-discovered country, first occupied within the period of legal memory, and much of it even within living memory, in the application of the common law to it, positive usage immemorially, or from which rior usage immemorially might be inferred, cannot be essary to render a naturally navigable water course ici juris. When our inland streams are proved to be,

v. Meyers, 3 U. C. C. P. 313 et. seq., per Macaulay, C. J.
346, per Macaulay, C. J.

in fact and in their natural state, navigable, they are prima facie public highways by water. In this light, user or non-user is only material, as auxiliary evidence, contributory to the inquiry whether a stream was or was not navigable from the beginning; but it does not therefore follow that it is the only medium, or an indispensable circumstance in the proof. (a)

In the application of the common law to Ontario, the fact of the natural capacity of the stream, and not the fact of usage, is most material to be considered. It must, of course, be determined by a court and jury, in each case as it arises, whether a water course ever was, or continued to be, a public highway, or a navigable stream, in the full and comprehensive meaning of the term, and, therefore, a public easement. The question of law for the Court being what constitutes a public or navigable river, and whether there was sufficient evidence thereof, or to repel it, the question of fact for the jury being, whether, according to the data laid down by the Court, and the evidence, it was, in fact, so navigable. (b)

As to the Province of Ontario, when our territory was devoted to settlement, the use of all streams practicable for navigation may be justly considered as dedicated to the public use, upon the principles of-first, the civil, and afterwards the common law; so that, although not pre-occupied by public use, they are to be looked upon as open to the public. (c)

In this country, streams which are not navigable continuously, but interrupted by occasional rapids, rocks, shoals, or other natural obstructions, causing what are called "portages," are, nevertheless, throughout those portions not thus impeded, undoubtedly highways. (d)

(a) Reg. v. Meyers, 3 U. C. C. P. 347, per Macaulay, C. J. (b) Ib. 348, per Macaulay, C. J.

(c) Ib. 351, per Macaulay, C. J.

(d) Ib. 352, per Macaulay, C. J.

Where a portion of water, forming part of Lake Ontario, at extraordinary periods when the water of the lake was pressed up at this particular part of it by strong winds, admitted, of scows passing over it, but the water was not more than four or five feet deep, and at ordinary times it was quite shallow and fordable :- Held that this was not navigable water, Held, also, that the Crown had a right to survey and lay out a highway through this portion of water. (a)

It is impossible to hold that to be a natural stream or water course, which could be obstructed by the act of ploughing and harrowing land, in the ordinary course of husbandry, and a ditch in a person's land which may be so obstructed, is not a natural stream or highway. (b)

Where the capacity of a creek in its natural state, without improvement, during spring freshets would not permit logs, timber, etc., to float and pass down:-Held that it was not a navigable river. (c)

Navigable rivers are public highways. (d) It would seem that the rule of the common law of England, as to the flux and reflux of the tide being necessary to constitute a body of water navigable, does not apply to our waters; and it seems that our large lakes, and navigable rivers, and inland waters are to be viewed as navigable rivers at the common law. (e)

All rivers above the flow of the tide, which may be used for the transportation of property, as for floating rafts and driving timber and logs, and not merely such as will bear boats for the accommodation of travellers, are highways by water, and subject to the public use.

(a) Ross v. Corporation Portsmouth. 17 U. C. C. P, 195.

(b) Murray v. Dawson, 19 U. C. C. P. 317, per Gwynne, J.

(c) Whelan v. M'Lachlan, 16 U. C. C. P. 102.

(d) Gage v. Bates, 7 U. C. C. P. 121, per Richards, C. J.; Olivia v. Bissonnault, S. L. C. A. 524.

(e) Gage v. Bates, 7 U. C. C. P. 121, et seq., per Richards, C. J.

In determining whether a river is public or private, its mere capacity during the spring freshets, or after heavy rains, to float down single sticks of timber or logs is of itself a very uncertain criterion of the public or private nature of the river, for there is no stream so small but which may at times suffice and be used for driving down a log or piece of timber, and, therefore, its breadth and its length and depth at ordinary times, and its capacity for floating rafts, etc., are proper to be considered. (a)

In Esson v. McMaster (b) it was held that a river which extended about twenty-eight miles into the country, and had been long used for navigation of boats and canoes, and for floating down logs and timber, was a common highway above where the tide flowed. All rivers above the flowing of the tide, and whether the property of the river be in the Crown, or in a subject, which afford a common passage, not only for large vessels but for boats or barges, are, by the principles of the common law, public highways. (c)

The defendants under their act of incorporation, 19, Vic. c. 21, and as assignees of the Canada Company, claimed a right to erect any works for improving the navigation of the navigable river Maitland, and to be owners of the bed of the stream: Held, that the powers given for that purpose were distinct from those granted for the purposes of their railway, and that, admitting the ownership, it was still subject to the public right, and that any obstruction to the highway or easement of the river for the purposes of navigation, was indictable as a nuisance. (d)

An indictment will not lie for merely erecting piers in a navigable river; it must be laid ad commune norenium,

(a) Rowe v. Titus, 1 Allen, 326.

(b) 1 Kerr, 501.

(c) Ib. 506, per Chipman, C. J. See also Perley v. Dibblee, 1 Kerr, 514. (d) Reg. v. B. & L. H. Ry. Co., 23 U. C. Q. B. 208.