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Opinion of the Court, per DAVIES, J.

be taken as “navigable.” Wilson v. Forbes (2 Dev., N. 0., 30.) In Collins v. Benbury (3 Ired., N. C., 277), one of the judges, in commenting upon the applicability of the common law rule to the navigable waters of that State, pronounced it 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, but that, in fact, it made no difference whether there is or ever was any tide in Albemarle bound. (See also Ingraham v. Threadgill, 3 Dev., N. C., 59.) Angell, though manifestly inclining to adhere to the common law rule, and its applicability to this country, concedes that there is much force in the following reasoning of Judge TURLEY, of Tennessee, upon this subject, in delivering the opinion of the Supreme Court of that State: “All laws are or ought to be an adaptation of principles of action to the state and condition of a country, and to its moral and social position. There are many rules of action recognized in England as suitable, which it would be folly in the extreme, in countries differently located, to recognize as law; and, in our opinion, this distinction between rivers 'navigable’ and ‘not navigable,' causing it to depend upon the ebbing and flowing of the tide, is one of them. The insular position of Great Britain, the short courses of her rivers, and the well known fact that there are none of them navigable above tide water but for very small craft, well warrants the distinction drawn by the common law. But very different is the situation of the continental powers of Europe, in this particular. Their streams are many of them large and long, and navigable to a great extent above tide water; and, accordingly, we find that the civil law, which regulates and governs those countries, has adopted a very different rule.” (Elder v. Bucrus, 6 Humph., 366.)

I shall refer to but one additional case in the State courts. It is that of McManus v. Carmichael (2 Clarke's Cases in Law and Equity), decided in the Supreme Court of Iowa. It contains an able and exhaustive review of all the cases, and a learned discussion of the whole subject, and may be profit

Opinion of the Court, per DAVIES, J.

ably referred to by all who desire instruction on these points, and are anxious to reconcile the contradictory dicta and deci sions which the discussion of them has called forth. I quote at some length from Judge WOODWARD's opinion, for the reason that his remarks are most pertinent to the point to be decided in this case. He states three propositions, which he deems are established : First. Although the ebb and flow of the tide was, at common law, the most usual test of navigability, yet it was not necessarily the only one. Second. However the truth may be upon the above proposition, that test is not applicable to the Mississippi river. Third. The common consequences of navigability attach to the legal navigability of the Mississippi. After a full review and discussion of the authorities relating to the first point, he says: “However the truth may be upon the first proposition, the flow and reflow of the tide is not applicable to the Mississippi, as a test of its navigability. And, third, the common law consequences of navigability attach to the legal navigability of the Mississippi river. The arguments and authorities upon these two propositions being in a great measure identical, they must be considered together. The thought has been before suggested, that, as a real and virtual test, the tide is a merely arbitrary one, and is not supported by reason; since many waters where the tide flows are not in fact navigable, and many where it does not flow are so. It is navigability in fact which forms the foundation of navigability in law; and from the fact fol. lows the appropriation to public use, and hence its publicity and legal navigability. It is true that this legality attaches to some waters which do not possess the requisite quality in fact; but this arises from their relation to the high seas and to admiralty, and from the difficulty of making an hundred exceptions. It is impossible to bring the mind to an approval, when we attempt to apply it to the rivers of this country, stretching up to three thousand miles in extent, flowing through or between numerous independent States, and bearing a commerce which competes with that of the oceans-a test which might be applicable to an island not so large as some two of our States, and to streams whose utmost length

Opinion of the Court, per DAVIES, J.

was less than three hundred miles, and whose outlet and foun. tain, at the same time, could be within the same State jurisdiction. In England, or in Great Britain, the chief rivers are the Severn, Thames, Kent, Humber, and Mersey; the latter of which is about fifty, and the first about three hundred miles in length, and of this (the Severn) about one hundred miles consists of the British Channel. The worldrenowned Thames has the diminutive proportions of two hundred miles; and of even these lengths, not the whole is navigable. Thus it will be seen that the chief rivers of good old England range in extent with our Connecticut, Merrimac, Hudson, Allegany, Monongahela, Cedar, Iowa, and Des Moines, and bear a proportion of one to twenty when compared with the greater rivers of this continent.”

This doctrine received a careful consideration by Mr. Justice McLean, of the Supreme Court of the United States, in the case of Bowman's Devisees v. Wathen (2 McLean, 376). The controversy was in relation to the rights of the riparian owner upon the Ohio river. The learned judge said: “We apprehend that the common law doctrine as to the navigableness of streams can have no application in this country, and that the fact of navigableness does in no respect depend upon the ebb and flow of the tide. When a stream which is clearly not navigable forms the boundaries of proprietors on each side of it, under the common law each may claim to the middle of the stream. But this right cannot be exercised to the injury of other rights of the same nature. On navigable streams, the riparian rights cannot, we suppose, extend gen- . erally beyond high water mark.”

The discussion of a cognate question, by Chief Justice TANEY, in the Supreme Court of the United States, in the Case of the Genesee Chief (12 How., 454), is instructive. It was contended in that case that the admiralty jurisdiction of the courts of the United States did not extend to the waters of Lake Ontario, as it was claimed that jurisdiction was limited to cases occurring upon waters within the ebb and flow of the tide. The chief justice said: “The only objection made to this jurisdiction is, that there is no tide in the

Opinion of the Court, per DAVIES, J.

lakes or the waters connecting them, and it is said that the admiralty and maritime jurisdiction, as known and understood in England and this country, at the time the Constitution was adopted, was confined to the ebb and flow of the tide. Now there is certainly nothing in the ebb and flow of the tide that makes the waters peculiarly suitable for admiralty jurisdiction, nor anything in the absence of a tide that renders it unfit. If it is a public navigable river, on which commerce is carried on between different States or nations, the reason for the jurisdiction is precisely the same; and if a distinction is made on that account, it is merely arbitrary, without any foundation in reason, and it, indeed, would seem to be inconsistent with it. In England, undoubtedly, the writers upon the subject, and the decisions in its courts of admiralty, always speak of the jurisdiction as confined to tide water. And this definition in England was a sound and reasonable one, because there was no navigable stream in the country beyond the ebb and flow of the tide, nor any place where a port could be established to carry on trade with a foreign nation, or where vessels could enter or depart with cargoes. In England, therefore, tide water and navigable water are synonymous terms; and tide water, with a few small and unimportant exceptions, meant nothing more than public rivers, as contradistinguished from private ones; and they took the ebb and flow of the tide as the test, because it was a convenient one, and more easily determined the character of the river. Hence the established doctrine in England, that the admiralty jurisdiction is confined to the ebb and flow of the tide. In other words, it is confined to public navigable rivers."

Here we have a clear and satisfactory explanation for the fact that in speaking of navigable rivers writers in England defined them as tidal streams; and the fact that in the old thirteen States the far greater part of the navigable waters were tide waters, affords a sufficient reason for adopting this definition in most of those States. But we now see clearly its inappropriateness to the state of things as now existing, and that what was regarded as the undoubted evidence of a

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Opinion of the Court, per DAVIES, J.

navigable river in England is not a test or essential to constistute a river navigable in America. This state of things led the courts in the United States naturally to adopt the English mode of defining a public river, and that definition, says Judge TANEY,“ having found its way into our courts, became after a time the familiar mode of describing a public river, and was repeated as cases occurred without particularly examining whether it was universally as applicable in this country as it was in England. The description of a public navigable river was substituted in the place of the thing intended to be described, and under the natural influence of precedents and established forms a definition originally correct was adhered to and acted on, after it had ceased from a change in circumstances to be a true description of public waters.”

It was this adherence which led so many judges into the error of holding that there could be no public navigable rivers in this country unless subject to the flux and reflux of the tide, and to the illogical and unsatisfactory result that a river was part public and navigable and in part private and unnavigable, while in fact both portions were equally navigable, and to the naked eye no line of demarkation or change could be discerned. It was under the influence of these precedents that the Supreme Court of the United States, in the Case of the Thomas Jefferson (10 Wheat., 428), fell into the error of declaring that the admiralty jurisdiction of the courts of the United States was limited to the ebb and flow of the tide, and which was followed in the case of The Steamboat Orleans v. Phoebus (11 Peters, 175). These cases and that of Waring v. Clarke (5 How., 441) have much embarrassed that court, and the latter case showed the unreasonableness of giving such a construction as would measure the jurisdiction of the court by the tide. For, as Chief Justice TANEY correctly says: “If such be the construction, then a line drawn across the Mississippi would limit the jurisdiction although there were ports of entry above it, and the water as deep and navigable and the commerce as rich and exposed to the same hazards and incidents as the commerce below. The distinction would be purely artificial and arbitrary, as TIFFANY.-VOL VL


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