The rule as to ordinary high-water mark applies as well to the shore of an arm of the sea, or wherever the tide flows and reflows, as to the shore of the sea itself. And an arm of the sea is considered as extending as far into the interior of a country, as the water of fresh rivers is propelled backward by the ingress and pressure of the tide. To the extent that such fresh rivers are backwardly propelled, they are denominated "navigable" rivers; and to determine whether or not a river is "navigable," both in the common law and in the admiralty acceptation of that term, regard must be had to the ebbing and flowing of the tide.3 In the supreme court of the United States, in a case which came up from the district court of the eastern district of Louisiana, the question was presented of admiralty jurisdiction, in the river Mississippi, which the court considered was to be determined by the ebbing and flowing of the tide; and in determining

enjoy, exclusive rights and privileges to and along the shores thereof, down to ordinary low-water mark: provided, that nothing in this act contained, shall be construed to affect any creek or river, or such part thereof, as may be comprised within the limits of any survey; and provided also, that nothing in this section contained, shall be construed to prohibit any person from the right of fishing, fowling and hunting, on those shores of the Atlantic ocean, Chesapeake bay, and the rivers and creeks thereof within the commonwealth, which are now used as common to all the good people thereof. 3 Ann. Law Reg. 360; and see State v. Creek Co. 2 Green (N. J.) R. 301; and see post, Chap. VII. I Case of the Royal Fishery, &c., Davies's R. 149.

Hale, De Jure Maris.

Sir Henry Constable's Case, 5 Co. R. 107.

the question, the ordinary state of the water, uninfluenced by any extraordinary freshets, was to be regarded.1

2

It was urged in Rex v. Smith, that the river Thames, above London bridge, was not navigable, although it was flowing and reflowing, inasmuch as the tide beyond that limit was occasioned by the pressure and accumulation backward of the fresh water. But the distinction attempted was, by Lord Mansfield, pronounced new and inadmissible. In a case, in the British House of Lords, where the question was, what was to be considered "river" and what "sea; " and where the direction was, that the thing to be looked to is the fact of the absence or prevalence of the fresh water, though strongly impregnated with salt; the direction was held to be erroneous. The supreme court of the United States, referring to the above case of Rex v. Smith, have decided, that although the current in the river Mississippi, at New Orleans, may be so strong as not to be turned backwards by the tide; yet if the effect of the tide upon the current is so great as to occasion a regular rise and fall of the water, it might

3

1 Peyroux v. Howard, 7 Peters (U. S.) R. 324. In a case referred to in this case, of the steamboat Jefferson, the court said there was no doubt the admiralty jurisdiction existed, although the commencement, or termination of the voyage might happen to be at some place beyond the reach of the tide. Ib. 343, 344.

2 Rex v. Smith, 2 Doug. R. 441.

Horne v. Mackenzie, 6 Clark & Finn. R. 628.

properly be said to be within the ebb and flow of the tide. The colonial ordinance of Massachusetts of 1641, is applicable wherever the tide ebbs and flows, though it be fresh water thrown back by the influx of the sea.2

There is therefore an important distinction between the term "navigable" as applied to a river, in its technical sense, and in the common acceptation of it when so applied. In the case of the Royal Fishery of the river Banne, in Ireland, it was resolved, "that there are two kinds of rivers, navigable and not navigable; that every navigable river so high as the sea ebbs and flows in it, is a royal river, and belongs to the king, by virtue of his prerogative; but in every other river, and in the fishery of such other river, the ter-tenants on each side have an interest of common right; the reason for which is, that so high as the sea ebbs and flows, it participates of the nature of the sea, and is said to be a branch of the sea so far as it flows." 3 But all rivers entirely above the influence of the tide, if they are so large as to admit of navigation, and to be of public use for the passage of vessels, boats, &c., may, as well as those which ebb and flow, be under the servitude of the public interest, and be used as "public highways by water. They are regarded as public,

'Peyroux v. Howard, 7 Peters (U. S.) R. 324.

Lapish v. Bangor Bank, 8 Greenl. (Me.) R. 85.

Case of the Royal Fishery in the River Banne, Davies's R. 149.

1

not in reference to the property in the soil or bed of the river, for that is in the riparian proprietors; but only in reference to public use. The doctrine of the common law making this distinction, is so clearly and explicitly laid down by Lord Hale.' Hence, the right of property in the soil and bed of" navigable ” rivers being thus vested in the sovereign, and that in the soil and bed of rivers, which are only "public highways," being in the riparian proprietors, in adjusting controversies arising between the public and individuals, as to the right of soil covered by water, and the consequent rights of fishery, it may be necessary to ascertain the extent of the flowing of the tide.

But the courts of some of the states in this country, have adjudged, that the common law, so far as it recognizes the above distinction, does not apply to our large fresh water rivers, and that these rivers, without reference to the flow and ebb of the tide, do not belong to the owners of the land adjacent, and that they have not the property in the soil under the water, and the consequent exclusive right of fishing usque ad filum aquæ, or to the middle of the river; or, in other words, these rivers are to be deemed not merely "highways" but "navigable." Such have been the decisions in Pennsylvania, and

1 De Jure Maris.

Cavson v. Blazer, Binn. (Penn.) R. 75; Shrunk v. Schuylkill, Nav. Co. 14 S. & Rawle (Penn.) R. 71.

in South Carolina.' In Alabama also every stream of water suited to the ordinary purposes of navigation, whether it ebbs and flows or not, (where the government has not expressly granted any part of the bed thereof) is not only a public highway, but the owners of land bounded upon it can assert no private right of soil to the bed of the river. It has been held by the supreme court of North Carolina, too, that what is a "navigable " river in that state, does not depend upon the rule of the common law; but that waters which are sufficient in fact, to afford a common passage for people in vessels, are to be taken as "navigable." In commenting upon the inapplicability of the common law on the subject, one of the judges, in one case, in that state, pronounced it entirely inapplicable, and remarked, that by the rule of the common law, Albemarle and Pimlico sounds, which are inland seas, would not be deemed "navigable" waters, and would be the subject of private property. It makes no difference whether there is, or ever was, any tide in Albemarle sound.4

On the other hand, the distinction made by the common law between such rivers as are "navigable," and such as are only "highways," is adhered to in

1 Cates v. Waddington, 1 McCord R. 580. 2 Bullock v. Wilson, 2 Port. (Ala.) R. 456.

› Wilson v. Forbes, 2 Dev. (N. C.) R. 30.

Collins v. Benbury, 3 Ire. (N. C.) R. 277; and see Ingraham v. Threadgill, 3 Dev. (N. C.) 59.