9, 13, 58 Am. Dec. 49.

To be navigable in law, water must be navigable in fact; that is, capable of being

The criterion of holding all rivers which are navigable in fact to be public rivers, and those which are not navigable in fact to be private rivers, is wanting in that accuracy and certainty at which the law aims. It can only be made certain by the addition of some arbitrary rule, such as depth of water, quantity of tonnage, or the like, and even then is still open to the objection that no man can tell whether he is exercising a public right, or trespassing on a private right, without entering on an investigation, while the tidal test (i. e., the ebb and flow of the tide), as distinguishing waters in which the property is in the sovereign from those in which it is in private individuals, has the merits of uniformity and certainty, and is easy of application. Cobb v. Davenport, 32 N. J. Law (3 Vroom) 369, 378, 379.

In this country the tides have no relevancy to navigability. It was otherwise in England, whence the common law and its terminology came. There "tide waters" and "navigable waters" were convertible terms. Here, if the water course is navigable, it is so because the depth and width of it are sufficient to float useful commerce. If the depth and width of a stream are augmented by a periodical increase of water, called "tide," that fact may make a stream navigable at those points in it where it is so in fact, to wit, in its channel, but not navigable where it is not so in fact, to wit, out of the channel, in the marshes. Alston v. Limehouse, 39 S. E. 188, 190, 60 S. E. 559.

The real test to determine whether a stream is a public highway is not the fact that it has been meandered and returned as navigable, but whether it is navigable in fact-capable of being used and actually used for floating logs, lumber, and other products of the country to the mill or market. If it is, it is then a public highway. Falls Mfg. Co. v. Oconto River Imp. Co., 58 N. W. 257, 261, 87 Wis. 134.

As commonly used, the term "navigable waters," in one of its meanings, includes all waters, whether within or beyond the ebb and flow of the tide, which can be used for navigation. Commonwealth v. Vincent, 108 Mass. 441, 447.

The term "navigable waters," in England, is synonymous with "tide waters," but

In this country all rivers, without regard to the ebb and flow of the tide, are generally regarded as navigable as far as they may be conveniently used at seasons of the year by vessels, boats, barges, or other water craft for purposes of commerce. Further than this, what constitutes a navigable river free to the public, is a question of fact to be determined by the natural conditions in each case. Bucki v. Cone, 6 South. 160, 161, 25 Fla. 1; Gaston v. Mace, 10 S. E. 60, 62, 33 W. Va. 14, 5 L. R. A. 392, 25 Am. St. Rep. 848; Allison v. Davidson (Tenn.) 39 S. W. 905, 907; Munson v. Hungerford (N. Y.) 6 Barb. 265, 270; Broadnax v. Baker, 94 N. C. 675, 681, 55 Am. Rep. 633; American River Water Co. v. Amsden, 6 Cal. 443, 446; Veazie v. Dwinel, 50 Me. 479, 483, 484; Brown v. Chadbourne, 31 Me. 9, 21, 1 Am. Rep. 641; Moore v. Sanborne, 2 Mich. 519, 527, 59 Am. Dec. 209.

Capacity for navigation.

The doctrine of the common law that the navigability of a stream is to be determined by the ebb and flow of the tide was repudiated in South Carolina in the case of State v. Pacific Guano Co., 22 S. C. 50. Judge Wallace, in his circuit decree, which was affirmed in such case, says: "If a channel, therefore, in which the tide ebbs and flows, and, in the language of the civil law, is floatable, can be used for the purpose of trade and commerce, it is a navigable stream. Neither the character of the craft, nor the relative ease or difficulty of the navigation, are tests of navigability. A stream may not be useful for commerce at one time, and yet circumstances may make it so. There are certain navigable streams in the state which are very valuable on account of their phosphatic deposits. If the question of their navigability had come before the courts for adjudication before the rock in them was discovered, and

the test laid down by the circuit judge that a stream should have sufficient depth and width to float useful commerce, it would have resulted in the state being deprived of those valuable sources of revenue because they were not actually used at that time. The test of navigability is navigable capacity, without regard to the character of the craft, the business done, the ease of navigation, the

surroundings of the stream, or whether it connects with another stream or highway, or flows up into a private estate." Heyward v. Farmers' Min. Co., 19 S. E. 963, 970, 42 S. C. 138, 28 L. R. A. 42, 46 Am. St. Rep. 702.

A stream of sufficient capacity and volume of water to float to market the products of the country will answer the conditions of navigability, and is a public highway open to all persons for the business of floatage to which it is adapted, whatever the character of the product or the kind of floatage suited to its condition. Bucki v. Cone, 6 South. 160, 161, 25 Fla. 1.

Although in England, in the common-law sense of the term, those streams only are navigable in which the tide ebbs and flows, yet all rivers and streams above the ebb and flow of the tide which are of sufficient capacity for useful navigation are public rivers, and subject to the same general rights which the public exercises in highways by land, and which they possess in navigable waters. Lorman v. Benson, 8 Mich. 18, 22, 77 Am.

Dec. 435.

The true test in determining whether a river is navigable or not is whether it is capable of being used for the purpose of commerce, for the floating of vessels, boats, rafts, or logs. Where a stream possesses such a character, it is navigable. Moore v. Sanborne, 2 Mich. 519, 527, 59 Am. Dec. 209; Brown v. Chadbourne, 31 Me. 9, 21, 1 Am. Rep. 641. It may be said, generally, any stream, though above tide water, is a navigable water, if "of sufficient capacity to float the products of the mines, the forests, or the tillage of the country through which they flow to market." Lewis v. Coffee County, 77

Ala. 190, 192, 54 Am. Rep. 55; Hickok v. Hine, 23 Ohio St. 523, 527, 13 Am. Rep. 255; Sullivan v. Spotswood, 2 South. 716, 717, 82 Ala. 163; Burke County Com'rs v. Catawba Lumber Co., 21 S. E. 941, 942, 116 N. C. 731, 47 Am. St. Rep. 829; Little Rock, M. R. & T. R. Co. v. Brooks, 39 Ark. 403, 408, 43 Am. Rep. 277.

The doctrine of the civil law has been carried to its utmost limit in the United States, and the rule to be deduced from the authorities is that all streams are deemed navigable which are capable, in their natural state, and in their ordinary volume of water, to transport to market the products of the fields, forests, and mines. Ten Eyck v. Town of Warwick, 27 N. Y. Supp. 536, 538, 75 Hun, 562.

The test of the navigability of a river is, as stated by the Supreme Court of the United States, whether it can be used in its ordinary condition as a highway for commerce, conducted in the customary mode of

England Trout & Salmon Club v. Mather, 35 Atl. 323, 325, 68 Vt. 338, 33 L. R. A. 569; Bayzer v. McMillan Mill Co., 16 South. 923, 924, 105 Ala. 395, 53 Am. St. Rep. 133.

The test of a navigable stream is whether, in the ordinary state of the water, it has capacity and suitability for the usual purposes of navigation. Webster v. Harris (Tenn.) 69 S. W. 782, 783.

The test of navigability of a stream is its adaptability to the process of navigation. Walker v. Allen, 72 Ala. 456, 457.

In the United States the legal meaning of the word navigable has been much extended, and it is not limited to streams which are capable of bearing ships on their bosoms, but includes, generally, all waters practically available for floating commerce by any method-whether by rafts or boats, Falls Mfg. Co. v. Oconto River Imp. Co., 58 N. W. 257, 261, 87 Wis. 134; Ten Eyck v. Town of Warwick, 27 N. Y. Supp. 536, 538, 75 Hun, 562; Lamprey v. State, 53 N. W. 1139, 1143, 52 Minn. 181, 18 L. R. A. 670, 38 Am. St. Rep. 541; Bucki v. Cone, 6 South. 160, 161, 25 Fla. 1; as the servitude of public interests depends rather on the purpose for which the public requires the use of the stream than any particular mode of use, Moore v. Sanborne, 2 Mich. 519, 524, 527, 59 Am. Dec. 209.

A stream or water course from 75 to 200

feet in width and 14 feet in depth at a point where a bridge is placed across it, and in which the tide rises and falls 381⁄2 feet, and which is open so as to allow free passage to all water craft running thereon, is a navigable river, so as to give the public a right S. Ry. v. Johnson, 73 Ga. 306, 308.

to free navigation thereon. Charlestown &

A river in which a tide ebbs and flows from 32 to 6 feet, which is navigated by boats or scows, on which there is a landing place above the proposed site of a bridge, and some freight is carried to such landing, is a navigable stream, the right to the use of which is a right common to all the people of the state, which may only be disposed of for the common benefit in such way as the people may see fit through the Legislature of the state, which is the rightful representative of the people. Attorney General v. Stevens, N. J. Eq. (1 Saxt.) 369, 380, 22 Am. Dec.

526.

Whenever a water course has a capacity to float freight and passenger boats, whereby they become highways or channels of commerce, the right to use them as such becomes paramount to any rights of a riparian proprietor, or even the owner of the soil over which the waters flow. Hodges v. Williams.

95 N. C. 331, 333, 59 Am. Rep. 242.

ters leading into the Mississippi and St. Lawrence, and the carrying places between them, shall be common highways and forever free, does not include every little rill or brook whose waters finally reach these great highways. It was intended to, and did, apply only to such streams as were then common highways for canoes or bateaux in the commerce between the northwest wilderness and the settled portions of the United States and foreign countries, and as to such rivers not then in use as would by law be embraced in the definition of navigable waters. Burroughs v. Whitman, 26 N. W. 491, 492, 59 Mich. 279.

All those inlets of the sea which are capable of sustaining vessels of any description, with their loading, for purposes really useful to trade or agriculture, are navigable, and hence public property across which a road cannot be laid by order of the court of sessions. Such an inlet, being used for boats, scows, and lighters with heavy loads of wood, etc., is navigable. Commonwealth v. Inhabitants of Charlestown, 18 Mass. (1 Pick.) 180, 187, 11 Am. Dec. 161.

A more appropriate criterion of a navigable river is not the flow and reflow of the tide, but simply the fact whether the river, in its ordinary state of water, is capable of, and suited to, the usual purposes of navigation by sea vessels, such as are employed in the ordinary purposes of commerce, whether foreign or inland, and whether steam or sail. Sigler v. State, 66 Tenn. (7 Baxt.) 493, 496; State v. Glen, 52 N. C. 323; Burke County Com'rs v. Catawba Lumber Co., 21 S. E. 941, 942, 116 N. C. 731, 47 Am. St. Rep. 829; Collins v. Benbury, 25 N. C. 277, 281, 38 Am. Dec. 722; Wilson v. Forbes, 13 N. C. 30, 34; Stuart v. Clark's Lessee, 32 Tenn. (2 Swan) 9, 13, 58 Am. Dec. 49; Hodges v. Williams, 95 N. C. 331, 333, 59 Am. Rep. 242. A distinction is taken by the common law between streams which, in the common acceptation of the term, are suited to some purposes of naviga

tion, and small, shallow streams, which are not so. In respect to the former,-which though not navigable in the sense of the law, are yet of sufficient depth naturally for valuable floatage, as for rafts, flatboats, and perhaps small vessels of lighter draught than ordinary, while it is settled that the right of property in the bed of a stream is vested in the riparian proprietor, still it is equally well settled that the public have the right to a free enjoyment of such stream for the purposes of navigation to which it is naturally adapted. Webster v. Harris (Tenn.) 69 S. W. 782, 783, 59 L. R. A. 324.

A "navigable" river, at common law, was one where the tide flowed and ebbed, but in America, and in popular speech, "navigable" rivers means those which may be navigated by ships or boats. State v. Pacific Guano Co., 22 S. C. 50, 75. 5 WDS. & P.-48

When the term "navigable" is used by common-law writers, it has reference to the right which all nations have of navigating the ocean and its arms as common highways of mutual intercourse and commerce, over which no people or nation has exclusive control, and in which no nation has a right of property. It has no reference to capacity for navigation, so that, while many of our rivers lying in the interior and wholly within the jurisdiction of the state are capable of navigation, they are not navigable for all the world except by the permission of the sovereign having jurisdiction over them. The Magnolia v. Marshall, 39 Miss. 109, 117.

A bayou susceptible of navigation by small steamboats, flats, and other craft is a navigable stream. Goodwill v. Police Jury, 38 La. Ann. 752, 772.

Same-Artificial obstructions.

A stream is still "navigable" notwithstanding a partial change in the mode of its navigation by the erection of a bridge through and under which scows, gondolas, and boats and vessels without masts, or with falling or movable masts, may advantageously pass and repass, loaded or empty; and hence the laying out of a highway over such river was not within the jurisdiction of the county commissioners. Inhabitants of Charleston v. Middlesex County Com'rs, 44 Mass. (3 Metc.) 202, 205.

Same-Natural obstructions.

Goldwaithe, J., says to make a "navigable" stream three circumstances must concur: (1) The stream must have sufficient width, (2) sufficient depth, and (3) a freedom from insurmountable obstructions. State v. Bell (Ala.) 5 Port. 365.

used as instruments of commerce do not lose Rivers having capacity to float boats their navigability because intercepted by falls, when above and below them the waters can be thus used for the purpose of commerce for long distances. Under such circumstances they remain highways for common use. Broadnax v. Baker, 94 N. C. 675, 681, 55 Am. Rep. 633.

A river may be said to be "navigable" when only its lower portion is such, and thus Laws 1898, c. 469, requiring the restoration of navigable streams injured by a diversion of waters, applies to a stream navigable at its mouth, though it does not appear to be navigable at the place of diversion. Town of Hempstead v. City of New York, 65 N. Y. Supp. 14, 18, 52 App. Div. 182.

While the English rule that no river is navigable except where the tide ebbs and flows is not applicable to this country, as we have many rivers which are navigable several hundred miles above the flowing of the tide, a stream whose natural obstruction pre