navigability, it is not necessarily the only one; and that wherever a public navigation exists, there the rights of the adjoining proprietors of land are limited by the high-water mark, and the title to the soil of the river, as heretofore defined, is in the crown, in England, and, in this country, in the States. 2 CHAPTER II. AN INQUIRY INTO WHAT CONSTITUTES NAVIGABLE RIVERS IN ENGLAND. § 13. IT is the commonly received opinion in this country, that in England the only test of the navigability of a river is the ebb and flow of the tide. This general idea here, on this point, is, however, erroneous. It is true, that there the usual means of designating a navigable river is the ebb and flow of the tide; and it is this common method of designation which has led to the idea here, that the ebb and flow of the tide is the only test of navigability at Common Law; but this opinion is, as already remarked, an error, because there, while it is the commonly used and most prominent, it is not the only, test. Being the most natural and the most readily perceived test in that country, it was easy to take for granted, without question or reflection, that it was the only test. It is, however, not reasonable to suppose that such would be the case, in a system of laws so eminently flexible as that of England, and so easily adapting itself to the necessity of circumstances controlling the application of a principle, when navigability did not depend on the ebb and flow of the tide, and the natural test stated was, by daily observation of actual navigation, shown to be erroneous. Our general adoption of this idea here, does not make the test itself correct; nor does its general use there make it such even there. Wherever the public, whether in England or America, have actually used a river as navigable, it is such, whether the tide ebbs or flows, or does not ebb and flow, at the navigable places in its course so used. § 14. This test of a navigable river, arising from its use for navigation, has been in existence time out of mind. "A public navigable river," says Woolrych, "frequently owes its title to be considered as such from time immemorial, by reason of its having been an ancient stream; but very many acts of Parliament have been passed to constitute those navigable rivers, which were not so before." And he shows, that few of the English rivers, except the Thames and Severn, were naturally navigable, but were made so by acts of Parliament." Waters," he goes on to say, "flowing inland where the public have been used to exercise a free right of passage from time whereof the memory of man is not to the contrary, or by virtue of legislative enactment, are public navigable rivers." "This," he further says, "is the most unfailing test to apply, in order to ascertain a common right; others have been attempted, and frequently without success." § 15. In another place, Woolrych says," The flow and reflow of the sea is prima facie evidence that a river is navigable, and may be said to be strong evidence for that purpose;2 and a general and uninterrupted user by the public for some time, affords conclusive proof of the universal right. But, although the flux and reflux establishes a fair ground of presumption, it is by no means conclusive; for the opposite party may have recourse to various defences to rebut this plausible proof." 3 Public user for the purposes of commerce is, consequently, the most convincing evidence of the existence of a navigable river. Again, Mr. Justice Bayley said, "The strength of that primâ facie evidence, arising from the flux and reflux of the tide, must depend upon the situation and nature of the channel. If it is a broad and deep channel, calculated for the purposes of commerce, it would be natural to conclude, that it had been a public navigation ; but if it is a petty stream, navigable only at certain 1 Woolrych on Waters, p. 40, citing 3 T. R. 255. 2 Miles v. Rose, 5 Taunt. R. 705. 3 Woolrych, 411. periods of the tide, and then only for a short time and for only small boats, it is difficult to suppose that it ever has been a public navigable channel." 1 § 16. But in the celebrated case of The Royal Fishery of the River Banne, referred to in a former chapter, it was resolved, that there are two kinds of rivers,-navigable and not navigable. Every navigable river, so high that the sea flows and ebbs in it, is a royal river, and the fishery therein, a royal fishery; but in every other river not navigable, and in the fishery of such river, the ter-tenants on each side have an interest of common right. And in the statute of 20 Henry VIII., chap. 22, the rivers Barrow, Nore, and Suire are called the king's rivers, and the weirs erected in them are called purprestures; and it is said, that although the king permitted his people, for their ease and commodity, to have common passage over such navigable rivers, yet he has a sole interest in the soil of such rivers. Wherefore it was so ordered in that case, that the river Banne, so far as the sea flows and ebbs in it, is a royal river, and that the fishery therein belongs to the king, and not to those, who have the soil on each side of the waters. But, on the other part, it was agreed, that every inland river, not navigable, appertains to the owners of the soil whereon it has its course; and if such river runs between two manors, and is the boundary between them, the one moiety of the river and fishery belongs to one lord, and the other moiety to the other.2 This case was decided in 8 James I., about the year 1610. It should be noted, that in this case but two kinds of rivers are spoken of, navigable and not navigable; and it is expressly ruled, that the soil or property in the latter belongs to the ter-tenants on each side, and inferentially, as to navigable rivers, the property therein is the king's. This is expressly ruled as to such parts of the same in which the sea flows and ebbs; but Rex v. Montague, 4 Barn. & Cres. 598-612. 2 Sir John Davies' R., p. 149. it being held that the king has the soil in the Barrow, Nore, and Suire, navigable rivers, it would follow, that he also owned the soil in all navigable rivers, whether the sea did or did not flow and ebb. For those three rivers are not tidal rivers. The Barrow, or Barragh, is a river of Ireland, which rises in the Slievebloom Mountains, and, after a course of about ninety miles south, joins the Suire to form the entry of Waterford Harbor. The Nore is an affluent of the Barrow. § 17. In another case, Warren v. Mathews, Lord Holt, Ch. J., held that every subject of common right might fish with lawful nets, &c., in a navigable river, as well as in the sea. This was held of the river Exe, a river of England, which rises in Exmoor, Somerset County, and, after a course of forty-five miles, flows into the English Channel at Exemouth. It is thus seen that a navigable river is placed on the same footing as the sea. § 18. In Carter v. Murcott,2 Lord Mansfield said, in rivers not navigable, the proprietors of the land have the right of fishery on their respective sides, and it generally extends ad medium filum aquæ. But in navigable rivers, the proprietor of the land on each side has it not; the fishery is common; it is primâ facie in the king, and is public. Mr. Justice Yeates says the cases cited prove only the distinction," that navigable rivers, or arms of the sea, belong to the Crown, and not, like private rivers, to the land-owners on each side." He says the case of The Fishery in the River Banne is agreeable to this, "and 'tis a very good case." Lord Mansfield afterwards, in 1774, keeping in mind this same distinction, repeats the same doctrine. § 19. In The Mayor of Lynn v. Turner,3 he says, "Ex facto oritur jus. How does it appear that this is a navigable river? The flowing and reflowing of the tide does not make 1 6 Mod. 73, approved by Willes, Ch. J., in Willes' R. 265-268 |