of the navigable waters of the United States, and subject to the jurisdiction of its admiralty courts.13 On the other hand, a lake or river which is completely within the limits of a state, without any navigable outlet to any other state or country, is a navigable water of the state (but not of the United States) and is not within the jurisdiction of the federal government.14 And it is also ruled that statutes passed by the states for their own uses, declaring small streams navigable, do not make them so within the meaning of any constitutional provision, treaty, or ordinance of the United States.15

In those states where lumbering is a principal industrial interest, it has been found necessary to establish a new rule in respect to the use of the streams, which is not founded upon any principle or precedent of the common law, but solely upon the local exigencies and customs. This rule is, that a fresh-water stream which is capable of being used for the purpose of floating down logs to the mills or to market, although it may be too small to admit of navigation, is "navigable" (or more properly "floatable") and a public highway, in the sense that the general public have an easement of passage over it for that purpose, though the title to the bed of the stream may remain in the riparian owners, subject to such public easement.16

13 The "B. & C.," 18 Fed. Rep. 543.

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

18 Duluth Lumber Co. v. St. Louis Boom Co., 17 Fed. Rep. 418.

16 Shaw v. Oswego Iron Co., 10 Oreg. 371; Felger v. Robin

son, 3 Oreg. 455; Nutter v. Gallagher, 19 Oreg. 375, 24 Pac. Rep. 250; Brown V. Chadbourne, 31 Me. 9; Thompson v. Improvement Co., 54 N. H. 545; Carter v. Thurston, 58 N. H. 104; Moore V. Sanbourne, 2 Mich. 520; Herman V. Beef Slough Manuf. Co., 1 Fed. Rep.

145.

According to the New Hampshire court, "the easement is not founded upon custom, usage, or prescription, nor is it derived from previous enjoyment, but it depends upon the capacity of the stream for trade or business. It exists where the stream is capable of being generally and commonly used for the purpose of commerce for the floating of vessels, boats, rafts, or logs. A riparian owner cannot acquire a prescriptive right against the public to impede or in any way injure navigation or any other public easement in any of the waters of the state."17 In order to impress a stream with this character of floatability, it is not essential that it should be perennially available for the purpose mentioned. "In order to make a stream floatable, it is not necessary that it should be so at all seasons of the year. It is sufficient if it have that character at different periods with reasonable certainty and for such a length of time as to make it profitable for that purpose."18 So the court in Alabama observes: "We are not to be understood as affirming that to be a navigable stream or public highway it must be susceptible of the enumerated uses for the entire year. Most inland streams contain a greater volume of water in winter than in summer. Our precise meaning is that for a season, or considerable part of the year, it must contain that depth of water which fits it for such transportation. It excludes all those streams which have the requisite volume of water only occasionally, as the result of freshets, and for brief periods, as unnavigable and private property."19 In Oregon, it is said that it is sufficient if the periods of high water in the stream, or its navigable capacity, continue a suffi

"Collins v. Howard, (N. H.)

18 Atl. Rep. 794.

18 Holden v. Robinson Manuf. Co., 65 Me. 216.

19 Morrison V. Coleman, 87 Ala. 655, 6 South. Rep. 374.

cient length of time to make it useful for a highway.20 And this doctrine cannot be extended so as to include small streams of only a few miles in length, although they rise during a few weeks in the year sufficiently high to be used to a limited extent, by the application of artificial means, to float logs and timber a short distance.21 And the stream must be something more than a mere brook. Although it may serve to float down logs for a few days during a freshet, that does not make it a public highway. Whether it is the one or the other depends upon its capacity, extent, and importance.22 And in California it is said that a stream is navigable if it is capable of floating rafts of lumber, but that to go beyond this and declare any stream navigable which can float a log, would be to turn a rule intended for the benefit of the public into an instrument of serious detriment to individuals, if not of actual oppression.23 It is also held that streams not naturally fitted for floating logs do not become public through their improvement by the riparian owner.24 And in Oregon, there is a ruling to the effect that an artificial channel opened by an individual for his special use, and capable of floating logs for a few days in the year and at high water only is not subject to the public easement.25

$219. Paramount control of congress.

The settled doctrine of the federal courts is that congress "having power to regulate commerce with foreign nations and among the several states, and navigation being a

20 Shaw v. Oswego Iron Co., 10 Oreg. 371. See, also, Felger v. Robinson, 3 Oreg. 455.

21 Haines v. Hall, 17 Oreg. 165, 20 Pac. Rep. 831.

22 Haines v. Welch, 14 Oreg. 319, 12 Pac. Rep. 502.

LAW W. R.-30

23 American River Water Co. v. Amsden, 6 Cal. 443.

24 Wadsworth v. Smith, 11 Me. 278.

25 Nutter V. Gallagher, Oreg. 375, 24 Pac. Rep. 250.

(465)

19

branch of that commerce, it has the control of all navigable waters between the states, or connecting with the ocean, so as to preserve and protect their free navigation. Its power, therefore, to determine what shall be deemed, so far as that commerce is concerned, an obstruction, is necessarily paramount and conclusive."26 But there must be a direct statute of the United States in order to bring within the scope of its laws obstructions and nuisances in navigable streams within a state; such obstructions and nuisances being offenses against the laws of the states within which the navigable waters lie, but not offenses against the United States in the absence of a statute.27 Hence, until congress acts, each state has plenary authority over rivers lying within its limits, and over bridges spanning them, and may regulate the construction, repair, and use of such bridges.28 But "while this court has maintained, in many cases, the right of the states to authorize structures in and over the navigable waters of the states, which may either impede or improve their navigation, in the absence of any action of the general government in the same matter, the doctrine has been laid down with unvarying uniformity, that when congress has, by any expression of its will, occupied the field, that action was conclusive of any right to the contrary asserted under state authority."29 Included in this power of congress is the authority to regulate and improve the navigation of such rivers and to make regulations for their ports. has the power, for instance, to close one of several channels

26 Miller V. Mayor of New York, 109 U. S. 385, 3 Sup. Ct. Rep. 228.

"Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 8 Sup. Ct. Rep. 811.

28 Willson v. Blackbird Creek

Marsh Co., 2 Pet. 245; Gilman v. Philadelphia, 3 Wall. 713; Escanaba Co. v. Chicago, 107 U. S. 678, 2 Sup. Ct. Rep. 185. "Wisconsin v. Duluth, 96 U. S. 379.

in a navigable stream, if, in its judgment, the navigation of the river will be thereby improved; and it may declare that an actual obstruction is not, in the view of the law, an illegal one.30 So it has authority to build light-houses for commercial purposes; and although the land used for that purpose has been granted by the state to a private owner, yet, if it lies wholly under "navigable water of the United States," such owner is not entitled to compensation for damages resulting from the erection of such structures.31 In regard to wharves, it has been held that although they are related to commerce and navigation as aids and conveniences, yet, being local in their nature and requiring special regulations at particular places, the jurisdiction and control thereof, in the absence of congressional legislation on the subject, properly belongs to the states in which they are situated.32 But congress has now acted on this subject, as may be seen from certain provisions of the river and harbor act of 1890.33 That law enacts, in its seventh section "that it shall not be lawful to build any wharf, pier, dolphin, boom, dam, weir, breakwater, bulkhead, jetty, or structure of any kind outside established harbor-lines or in any navigable waters of the United States where no harbor-lines are or may be established, without the permission of the Secretary of War, in any port, roadstead, haven, harbor, navigable river, or other waters of the United States, in such manner as shall obstruct or impair navigation, commerce, or anchorage of said waters, and it shall not be lawful hereafter to commence the construction of any bridge, bridge-draw, bridge piers and abutments, causeway, or other works,

30 South Carolina v. Georgia, 93 U. S. 4.

V. United States, 39

31 Hill Fed. Rep. 172.

32 Transportation Co. v. Parkersburg, 107 U. S. 691, 2 Sup. Ct. Rep. 732.

26 U. S. St. at Large, 426.