Nor is it every small creek, in which a fishing skiff, or gunning canoe, can be made to float at high-water, which is deemed navigable. In order to have this character, it must be navigable to some purpose useful to trade or agriculture. It is not a mere possibility of being so used under some circumstances, as at extraordinary high tides, which will give it the character of a navigable stream." (Shaw, C. J., in Willan v. Blackbird Creek Co.) A petty stream, navigable only at particular times of the tide, and for a short time or distance by small boats, is not to be assumed, as of course, to be a navigable river. The King v. Montague.

625. On the other hand, the flowing of a tide up a river, though small, and the use of it by even pleasure and other small boats, and the cutting of reeds there by the public, and similar acts, constitute evidence that it is public navigable water; but such evidence is not absolutely incontrovertible. Miles v. Rose.

626. The size and character of the channel generally indicates, what rivers are navigable, and to what extent; and in long-settled countries, general or particular customs and reputation have ascertained what smaller rivers and creeks are to be deemed navigable, and the extent and limits of the navigable area of all.

627. The Thames (including the Isis) is described as a navigable river from time immemorial so high as Bercot, in Oxfordshire, and for divers years last past somewhat further than Lechlade, in Gloucestershire, by the Act 6 & 7 Will. III. c. 16, which authorizes certain charges as a reasonable compensation for improvements of the navigation by locks, weirs, and other works.

628. The Severn is treated by the Act of Parliament 9 Hen. VI. c. 5 (anno 1430), and subsequent Acts, as a navigable river to Worcester, and other places. From that Act it will appear that its right bank, at least, was at that time a kind of debateable land, and the arena of a border warfare; and that its riparians, according to the custom of

the petty lairds of the African rivers and the Rhine, levied a toll on all who traversed the stream. "Because the river Severn is common to all the King's liege people to carry and re-carry within the stream of the said river,-to Bristol, Gloucester, and Worcester, and other places joining to the said river,—all manner of merchandises, and other goods, as well in trowes and boats as in flotes, commonly called drags, in every part joining to the said river; within which river many Welshmen and other persons, dwelling in divers places joining the said river, have now late assembled in great numbers, arrayed in manner of war, and taken such flotes, otherwise called drags, and them have hewed in pieces, and with force and arms beaten the people which were in such drags, to the intent that they should hire the said Welshmen and other persons for great sums of money, boats and other vessels, for carriage of such merchandises and other goods and chattels, to an evil example and great impoverishment of the said liege people, if remedy be not hastily provided; it is ordained. that the said liege people of the King may have and enjoy their free passage in the said river with flotes and drags, and all manner of merchandises and other goods at their will, without disturbance of any; and if any be disturbed of his free passage in the said river, the party grieved shall have his action according to the course of the common law."

After reciting the preceding Act, it was ordained that any person, of whatever estate, degree, or condition, who should take any imposition of any of the King's liege people for trow, boat, or any other vessel, for any goods or merchandise carried or conveyed in and upon the said river or water of Severn, or let, vex, or interrupt any boats, trows, or other vessels so passing by the said river, for any such imposition or otherwise contrary to law, should forfeit twenty pounds,— two-thirds to the King, and one-third to him who should sue. But it was provided that the Act should not extend, or be prejudicial or hurtful to any person having lands or meads adjoining the river, to take of every person going on his land

and haling or drawing every such trow, boat, or vessel, reasonable recompense and satisfaction for such hurts or offences as he should sustain by reason of such goings or drawings of such vessel; and it was provided that any person, or corporation, claiming to have title to any manner of duty or imposition on goods so passing, might endeavour to establish his title before the Star Chamber, previously to the Feast of the Ascension in 1505. 19 Hen. VII. c. 18.

After reciting that the King's subjects passing upon the river and water of Severn had used time out of mind to use and have a certain path of one foot and a half broad on every side of the said river, for drawing up by lines or ropes their trows, barges, boats, and other vessels passing or repassing on the said river with wine, or other merchandise, without imposition, tax, or toll to be demanded of them that should carry wine in any of the said vessels for the said passing or drawing in the said paths accustomed; till now of late certain covetous persons have perturbed and interrupted many of the King's subjects haling and drawing up their vessels in the said paths, taking of them fines and draughts, and bottles of wine, and yet daily use to take, to the disturbance and loss of many of the King's subjects, the legislature proceeded to prohibit such interruption, and the taking or demanding of any toll called a draught, or bottle of wine, or any other tax or imposition, under a penalty of forty shillings. 23 Hen. VIII. c. 12.

629. RESTRICTION AND EXTENSION.-The navigable area may be either restricted or extended by the operation of natural causes. It may be restricted by the silting up of a harbour, a river, or creek, or the accumulation of sand or pebbles on the shore, or by what is called the recession of the sea. (The King v. Montague.) In such an event, a highway by land may by usage become substituted for the previous water-way.

630. So it may be extended either by the gradual or the sudden encroachment of the sea. If the sea take possession

of the shore, or even of the adjacent bank, so as to form over it, either at all times, or on the rise of the tide, a surface convenient for navigation, that space becomes an addition to the navigable area, and subject to the mariner's rights. If the marine accession is gained by slow and imperceptible degrees, the bed and shore become part of the dominion of the Crown. (Hull and Selby Railway case.) If it is gained suddenly, the soil beneath still remains vested in its former owner.

631. It is competent to the sovereign to make or authorize such extension by artificial means, as the clearing and deepening of rivers, as he may think for the public benefit, within the public domains; but it is competent only to that department of sovereign power,-in Britain the Parliament, in America the Congress,-in which the eminent dominion is reposed, to make or authorize such extension into or upon private property, or in derogation of private rights; and that only on due compensation to all whose property or rights may be damaged by the change.

632. It is in exercise of this power that authority is given to companies and adventurers to improve the navigation of rivers, and to form canals, and to charge a reasonable toll for the use of the accommodation. In illustration of this kind of grant, it is sufficient at present to refer to the Act 16 & 17 Car. II. c. 11, s. 1, for making the Medway navigable. This Act authorized a company to cleanse, scour, dig, widen, deepen, and make navigable the river Medway, and empowered bargemen to use a towing-path on either side of the river, on giving satisfaction to the persons injured thereby, and conferred on the company a right to compensation for the use of this aqueous highway. Further powers were given by a subsequent Act, 13 Geo. II. c. 26. These grants were held to vest in the company a kind of property in the water, subject to the ordinary riparian rights. Medway Navigation Company v. Romney.

633. The uncovered shore is a highway for the public as well as the water with which it is covered at the flood. It

rests therefore with the sovereign on an estimate of public advantage to restrict the navigation and extend the terrene highway, by stopping back the water, and forming a causeway, an embankment, or a bridge.

634. In this country, such appropriation may be made by the legislature without, and by the Crown upon, an inquiry in a prescribed form, whether it will tend to the public good; and where a road has been permanently formed across an inlet of the shore, and enjoyed for a great length of time, it is to be presumed that it was formed on sufficient authority, and, if necessary, with the public assent. (Com. Dig. Chemin. A. 1. Fitzh. Nat. Brev. 515; the King v. Montague.) It is only a beneficial modification of the public right.

CHAPTER II.

RIGHTS ON THE WATERS.

We propose now to embark upon the waters in peace, and to endeavour to travel in safety, and to accommodate those we meet.

635. OPEN SEA.-All who have access to it have a right to use the open sea. The mariner of every nation is equally entitled to traverse and convey his merchandise across its wide expanse. There is no property in the billows; there is no ownership of the storm. Yet man has made the wave, the wind, and even the lightning, subservient to his con

venience.

636. The use of the sea, then, in a sense, belongs to all nations, for their common enjoyment. The right to enjoy can be exercised only by individuals, and every one has an equal right. But the protection of the right is not entrusted to their single prowess.

637. The protection and regulation of the universal rights