the "navigable waters" embrace all the soil within high-water mark (The Mayor v. Eslava, 9 Porter's R., 577).

To state the rule in a few words, it may be affirmed that by the common law, which is generally in force in this country, the alveus or bed of all navigable rivers as far as the tide ebbs and flows is vested in the State, subject to the public rights of navigation and fishing. In determining the line of demarkation between the property of the State in the soil of a navigable river and the property of the riparian owners on each side of the stream the same rule is to be applied as in case of property bounding on the sea-shore; consequently the property of the State will not extend beyond the line of the medium high tides throughout the year, so that lands of a private individual bounded upon a navigable river below tide-water extend to ordinary high-water mark, and high-water mark is prima facie the boundary line. All below high-water mark belongs to the State (State v. Jersey City, 1 Dutcher's R., 525). This is the ordinary or general rule, which may be waived or varied by usage or other evidence in certain

cases.

The common law, governing the right of property in rivers and streams, has long been settled. The law of maritime and fluvial property and rights, as laid down by the great authority in the law, Lord Chief Justice Hale, in his tract, De Jure Maris, has been uniformly and repeatedly recognized and followed in the courts of Westminster Hall; and very often the same rules have been adopted by the courts of this country.

The question as to what should be regarded a navigable river in this country has been very recently considered by the Supreme Court of the United States, although the case before the court involved simply the construction of an act of Congress in which the term is used. The court expressly declared, however, that the doctrine of the common law, as to the navigability of waters, has no application in this country. Here, it was said, the ebb and flow of the tide do not constitute, as in England, any test at all of the navigability of waters. The test by which to determine the navigability of our rivers is found in their navigable capacity. Those rivers are public navigable rivers, in law, which are navigable in fact. Rivers are navigable in fact when they are used, or are susceptible of being used in their ordinary condition as highways for commerce, over which trade and travel are or may

be conducted in the customary modes of trade and travel on water; and it was further declared that they constitute navigable waters of the United States, within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form, in their ordinary condition by themselves, or by uniting with other waters, a continued highway, over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water. It was accordingly held that Grand river, in Michigan, is a navigable water of the United States from its mouth, in Lake Michigan, to Grand Rapids, a distance of forty miles; being a stream capable of bearing for that distance a steamer of one hundred and twenty-three tons burden, laden with merchandise and passengers, and forming, by its junction with the lake, a continued highway for commerce, both with other States and with foreign countries (The Daniel Ball, 10 Wall. R., 557). This does not necessarily settle the rule of boundary in respect to such rivers; but the case has an important bearing upon that subject.

Of common-law right, the property of the soil, and of all aquatic privileges for fisheries, etc., in the shores and arms of the sea, and in navigable rivers in which the tide flows, is in the sovereign; while all the uses and enjoyment are public and common. The presumption of the law is always that this original right continues, unless the contrary is shown by express proof of private right by grant or prescription. It is clear, upon any view of the law, that the original or the presumptive right of the people to the property of the navigable rivers and their beds does not prevent actual appropriation of proprietary interests in them to private citizens by grants. Therefore, a subject may have a right in creeks or arms of the sea by charter or grant; and the sovereign power may, also, "grant that very interest itself, viz., a navigable river; that is, an arm of the sea, the water and soil thereof." The statutes of some of the States adopt the same principle; for example, the statute of New York, which authorizes the commissioners of the land office to make, in their discretion, grants of land under water in all the navigable rivers in the State, and in the bay and harbor of New York (1 R. S., 208; 1 Statutes at Large, 208). It may be added that rivers, where the tide ebbs and flows, probably do not belong to the public, only in those parts which are navigable. So that the owners of lands adjoining a river below the ebb and flow of

the tide, if navigable, are bounded, prima facie, by the line of high-water mark; but if not in fact navigable, then they may be presumed to own to the center of the stream.

In respect to the title to the bed of the stream, the Supreme Court of New Jersey has recently decided that the State is the absolute owner of all navigable waters within the territorial limits of the State, and of the soil under such waters; and that the legislature may, therefore, lawfully grant any portion of such soil, lying below high-water mark, to any person without making compensation to the adjacent riparian proprietors. The court further decided that a statute, giving to a railroad company the right to construct their road along a navigable stream, and to acquire the rights of the shore owners, does not confer upon such company the right to take the lands of the State lying below high-water mark. And the general doctrine was declared that the owner of lands, lying along the bank of a navigable stream, may, by the local custom of New Jersey, acquire title to the land in front of him by reclaiming and improving the same. But that the title to such land does not rest in the riparian proprietor until the land is actually reclaimed; and, as the custom rests in mere license, revocable at the pleasure of the legislature, the latter may grant such land to a stranger at any time before the same is reclaimed and annexed to the upland (Stevens v. Paterson, etc., Railroad Company, 34 N. J. Law R., 532). This seems to be in accordance with the doctrine laid down by Lord IIale, where he says: "There be some streams or rivers that are private, not only in propriety or ownership, but also in use; as little streams, and rivers that are not a common passage for the king's people. Again, there be other rivers, as well fresh as salt, that are of common or public use for carriage of boats and lighters; and these, whether they are fresh or salt, whether they flow and reflow or not, are, prima facie publici juris, common highways for man or goods, or both, from one inland town to another. Thus, the rivers of Wey, of Severn, of Thames, and divers others, as well above the bridges and ports as below, as well above the flowings of the sea as below, and as well where they have come to be of private propriety as in what part they are of the king's propriety, are public rivers juris publici" (De Jure Maris. Pars Prima, ch. 3).

CHAPTER IV.

THE RIGHTS OF PROPERTY ON UNNAVIGABLE RIVERS WHERE THE TIDE DOES NOT EBB AND FLOW-THE RULES OF LAW APPLICABLE TO THE BOUNDARY OF PRIVATE PROPERTY BORDERING ON THESE STREAMS -THE COMMON-LAW DOCTRINE AS TO WHAT ARE UNNAVIGABLE RIVERS, AND WHERE THE SAME IS RECOGNIZED LAW OF BOUNDARY IN RESPECT TO ARTIFICIAL WATER-COURSES.

THE rule in respect to the boundary of property adjoining rivers which are not navigable by the common law, or rivers above tidewater, is different from that which prevails in respect to rivers below the ebb and flow of the tide. At common law a riparian proprietor, bounded by a stream above the ebb and flow of the tide, though navigable in part, owns the land to the center or thread of the stream, and the public have the right to use the stream for the purposes of navigation; but in other respects the right of the proprietor to the soil is perfect. In other words, opposite riparian proprietors, on a stream in which the tide does not ebb and flow, own respectively to the center of the stream ; but neither can, by constructing docks or making excavations on his side, abridge the exercise of the rights of the opposite owner (Walker v. Shepardson, 4 Wis. R., 486); that is to say, where a private or a tideless river separates the lands of two riparian owners, the line of demarkation between the two estates is presumed, prima facie, to coincide with the medium filum of the stream (Wright v. Howard, 1 Simons & Stuart's R., 203; Schultes on Aquatic Rights, 136).

It was observed by Lord Cranworth, in a leading case in England, that "the soil of the alveus is not the common property of the two proprietors, but the share of each belongs to him in severalty; so that if, from any cause, the course of the stream should be permanently diverted, the proprietors on either side of the old channel would have a right to use the soil of the alveus, each of them, up to what was the medium filum aquæ, in the same way as they were entitled to the adjoining land" (Bichett v. Morris, 1 Law R., Sc. App., 58). And the Supreme Judicial Court of Massachusetts has recently held that if the course of a river, not navigable, changes and cuts off a point of land on one side, making an island, such island still belongs to the original owner.

In such

case, if the old bed of the river (being gradually diverted by the current) fills up, and new land is formed, such newly-formed land belongs to the opposite riparian proprietors, respectively, to the thread of the old river; and if new land be formed in the river above such island, independent of the island, and not by a slow, gradual and insensible accretion to it, such new land above belongs to the opposite riparian proprietors, respectively, to the filum aquæ, or thread of the river. The thread of the river, in such case, would be the medium line between the shores or natural water-line ou each side at the time the new land was formed, without regard to the channel or deepest part of the stream (Trustees of Hopkins Academy v. Dickinson, 9 Cushing's R., 544).

Chancellor Kent lays down the rule that grants of land, bounded on rivers, or upon the margins of the same, or along the same, above tide-water, carry the exclusive right and title of the grantee to the center of the stream, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the river; and the public, in cases where the river is navigable for boats and rafts, have an easement therein or a right of passage, subject to the jus publicum, as a public highway (3 Kent's Com., 7th ed., 515, 516). This is the common-law doctrine, and is recognized in most of the States. It has been held, even in the case of the Mississippi river, that the common law, and not the civil law, governs, and the magnitude of the river does not affect it. It was declared that the Mississippi river, above the ebb and flow of the tide, is not navigable in the sense of the common law, and the rights of the riparian owner go to the middle of the river; that the act of Congress, establishing the Mississippi river as the western boundary of the Mississippi territory, and adopting the common law for the government of that territory, fixed the middle of the river as the boundary line; and that the rights of riparian proprietors on the east shore of the Mississippi, therefore, must be determined by the common law. Nor are their rights as to the soil therein, or to the use of the bank of the river, affected by the act of Congress making that river "a common highway, free to every citizen, without tax or duty;" so decided in the same case (Morgan v. Reading, 3 Smedes & Marsh. R., 366).

The question has been much discussed as to whether the rule of the common law prevails in this country, that grants of lands, bounded on rivers and streams above tide-water, extend usque