But in so far as the common law rule limits the class of navigable streams to those affected by the tide, it has not been generally adopted in this country. The courts of the United States, for the purpose of determining the extent of federal jurisdiction and the application of federal laws, have discarded this rule altogether, and taken as the sole test the actual navigable capacity of the given stream. "The doctrine of the common law as to the navigability of waters," says the supreme federal tribunal, "has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all, of the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide, and from this circumstance tide-water and navigable water there signify substantially the same thing. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide-water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length. A different test must therefore be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers, in law, which are navigable in fact. And they 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 the rule thus formulated has been adopted in nearly all the states. So that it may now be said to be the general doctrine of the American common law that

"The Daniel Ball, 10 Wall. 563; The Genesee Chief, 12 How. 443

any water is "navigable water" if it is navigable in fact and available as a highway for commerce.3 And further, the question of navigability does not materially depend upon past or present actual public use. Such use may establish navigability, but it is not essential to give that character. If it were otherwise, streams in new and unsettled portions of the country, or where the increase, growth, and development have not been sufficient to call them into public use, would be excluded, though navigable in fact, thus making the character of being a navigable stream dependent on the occurrence of the necessity of public use. Capability of being used for useful purposes of navigation, of trade and travel, in the usual and ordinary modes, and not the extent and manner of the use, is therefore the true test of navigability. But the stream must admit of being used as a highway for commerce of an essentially valuable character, and the mere fact that it offers a passage-way for boats or vessels does not always or necessarily determine its character as navigable water in the American sense. And where the whole of a river is above

The Montello, 20 Wall. 441; Weise v. Smith, 3 Oreg. 445; Haines v. Hall, 17 Oreg. 165, 20 Pac Rep. 831; Nutter v. Gallagher, 19 Oreg. 375, 24 Pac. Rep. 250; Shaw v. Oswego Iron Co., 10 Oreg. 371; American River Water Co. v. Amsden, 6 Cal. 443; Concord Manuf. Co. v. Robertson, (N. H.) 25 Atl. Rep. 718; Sullivan V. Spotswood, 82 Ala. 166, 2 South. Rep. 716; Stover v. Jack, 60 Pa. St. 339; Diedrich v. Northwestern R. Co., 42 Wis. 248; Elder v. Burrus, 6 Humph. 358; Brown v. Chadbourne, 31 Me. 9; McManus v. Carmichael, 3 Iowa, 1; Monongahela Bridge

tide-water it is prima facie non-navigable, and the burden of proving that it is impressed with the character of a public highway is on the person asserting it."

There are some few states, however, which still adhere to the common law test of navigability. Thus in New Jersey, it is said that a river may be legally navigable below the ebb and flow of the tide and actually navigable above, and the question of boundary, in respect to lands adjoining it, will be determined by one principle above and by another below tide-water; but as to the jurisdiction and power of the state over it, the river above tide-water is to be regarded as navigable. The courts of Illinois hold that the Mississippi is not legally and technically a "navigable river," and hence the title of a riparian proprietor whose land abuts on that stream extends to the middle thread of the river. In Mississippi, it is said that the term "navigable," at common law, had reference only to such waters as were by the law of nations free to the commerce and navigation of all nations, and not to the capacity of a stream for navigation, and hence "navigable river" means only that part of a fresh-water stream, debouching into the sea, in which the tide ebbs and flows. And accordingly it is there held that the Mississippi is not technically a navigable stream above tide-water. It is further to be remarked that a change in the condition of a non-navigable body of water, whereby it becomes or is made navigable, is not allowed to divest the previously acquired rights of

riparian owners. Thus where, by the cutting of a channel between a fresh-water pond and a body of salt water, the water of the former becomes salt and the tide ebbs and flows therein, the rights of the riparian proprietors are not affected by the change; that is, their boundaries are not moved back to the newly formed line of high water mark.10

§ 217. Navigable waters of the United States.

The determination of the navigability of a river or stream may become important either with respect to state law or federal law. The constitution of the United States invests congress with the power to regulate foreign and interstate commerce, and commerce includes navigation. It also provides that the federal judicial power shall extend to "all cases of admiralty or maritime jurisdiction." It is therefore apparent that, for these purposes, the federal authorities may and must determine what waters are navigable, and this without being in any manner bound by the doctrines of the states including or contiguous to such waters. For example, Illinois holds that the Mississippi is not technically a "navigable river;" yet that does not exclude the river, or any part of it, from the jurisdiction of the United States for its proper purposes. On the other hand, it is evident that there may be streams navigable in fact, and yet so situated that neither the commercial power of congress nor the admiralty jurisdiction of the federal courts can properly be extended to them. It is accordingly settled that these two powers of the national government are restricted to the "navigable waters of the United States." And we are now to inquire into the meaning of this phrase. In the first place, as to the test of navigability, the courts of the United States, as was stated in the

10 Wheeler v. Spinola, 54 N. Y. 377.

preceding section, have entirely discarded the common law doctrine, and have made navigability in law synonymous with navigability in fact, irrespective of the influence of the tide. And in the second place, as to what navigable waters are navigable waters "of the United States," the scope of this term has been clearly defined by the supreme court. The rivers of the country, says that tribunal, "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."11

It is therefore not necessary that a river, to answer this description, should flow in a course between two or more states, or traverse the territory of several states, if it constitutes a part of an unbroken line of waterway available for interstate commerce. For instance, the Willamette river, though lying wholly within the state of Oregon, yet forms, by means of its connection with the Columbia river, a highway for foreign and interstate commerce, and is therefore a navigable river of the United States, and subject as such to the control of congress.12 And even a canal, used by vessels engaged in interstate traffic as a public waterway, though entirely within the limits of one state having exclusive control of it, with power in such state to close it at any time, is a part

The Daniel Ball, 10 Wall. 563; The Genesee Chief, 12 How. 443; Escanaba Co. v. Chicago, 107 U. S. 682, 2 Sup. Ct. Rep. 185; Miller v. Mayor of N. Y., 109 U. S. 385, 3 Sup. Ct.

Rep. 228; United States v. Burlington, etc., Ferry Co., 21 Fed. Rep. 331.

12 Wallamet Iron Bridge Co. v. Hatch, 19 Fed. Rep. 347.