§ 37. Division of Waters.-For the purposes of this work waters may be divided into the following classification. We will now proceed to take them up in their natural order and discuss their special peculiarities. I. Public or Navigable Waters. § 38. The Sea-Great Inland Lakes.-As the present work will have very little to do with the sea, a simple definition will suffice. The sea or ocean is the great mass of water which surrounds the land, and which probably extends from pole to pole, covering nearly three quarters of the globe.1 A lake has been defined as a large and extensive collection of water contained in a cavity or hollow of the earth.2 Lakes are distinguished from rivers chiefly by the fact that they have no current. But the mere fact that there is a current from a higher to a lower level does not make that a river which otherwise would be a lake.3 In this country the great navigable lakes are regarded as public property and are not susceptible of private ownership more than the sea.1 In England and Ireland all lakes are considered private property, owing undoubtedly to the fact that they are all small. But in this country this principle is not sufficiently broad to embrace our large fresh water lakes and inland seas, 1 Bouvier Law Dic. sub. Sea; I. Kent Com. 26-27; Angell on Tide Waters, 44. 2Webster's Dic. sub. Lake. 3Callis on Sewers, 82; Woolrych on Sewers, 81; State vs. Gilmanton, 14 N. H. 467; 9 N. H. 461. 43 Kent Com. Note 429 (a); States vs. Franklin Falls Co., 49 N. H. 240; West Roxbury vs. Stoddard, 7 Allen 158; State vs. Gilmanton, 9. N. H. 461; Canal vs. People, 5 Wend. 447; Great ponds, containing more than ten acres, which were not before the year 1647 appropriated to private per sons, were by the colony ordinance made public to lie in common for public use. In the case of Bradley vs. Rice, 13 Me. 201, and Waterman vs. Johnson, 13 Pick. 261, it was held that where the land in a conveyance was bounded by a pond of water the grant extended only to the margin of the pond. 5Devonshire vs. Pattinson, 20 Q. B. D. 263; Holford vs. Bailey, 8 Q. B. 1000; Pery vs. Thornton, 23 L. R. Ir. 402; See remarks of Gray, J., in Pain vs. Woods, 108 Mass. 160, 169 (1871), citing Duke (ed. which are wholly unprovided for by the common law of England.1 Hence it follows that lands under the waters of great navigable lakes require a specific grant to enable the riparian owner to go beyond the shore.2 § 39. Rivers.-A river is a running stream of water, pent in on either side by banks, shores or walls, usually flowing in a particular direction, in a definite channel, and discharging into some other stream or body of water.3 Every river consists of the bed, shores or banks, the water, and also a current. The term river applies where the waters flow and reflow with the tide as well as where the current is 1805) 8, 129; Marshall vs. Ulleswater Steam Navigating Co., 3 B. & S. 732; 113 Eng. C. L. 732, 742, citing Hale, De Jure Maris, ch. I; Hunt on Boundaries and Fences (2d ed.), 19; Greyes' Case, Owen, 20; Somerset vs. Fogwell, 5 B. & C. 875, (E. C. L. R. vol. II.); Pollenfen vs. Crispin, 1 Vent. 122; Bell's Law of Scotland, 171; Com. Dig. Prerogative (D 50); 3 App. Cas. 641; s. c. R. 10 C. L. 398, 412; 2 L. R. Ir. 118. 1 Canal Com's et al vs. People, 5 Wend. 423, 446; Canal Appraisers vs. People, 17 Wend. 571, 597, 616, 621; 3 Kent. Com. 429, note (a) 430; Kingman vs. Sparrow, 12 Barb. 201; King vs. Smith, Doug. 441; Ledyard vs. Ten Eyck, 36 Barb. 102; In Fletcher vs. Phelps, 28 Vt. 257; Jakeway vs. Barrett, 38 Vt. 316, 323, and Austin vs. Rutland Railroad Co., 45 Vt. 215; 17 Fed. Rep. 466, it was held that lands bounded on Lake Champlain extend to the edge of the water at low water mark; State vs. Franklin Falls Co., 49 N. H. 240, 250; State vs. Gilmanton, 9 N. H. 461; 14 N. H. 467; Waterman vs. Johnson, 13 Pick. 261; Hogg vs. Beeman, 41 Ohio St. 81; Sloan vs. Biemiller, 34 Ohio St. 514; Hardin vs. Jordan, 16 Fed. Rep. 823; 140, U. S. 371; Paine vs. Woods, 108 Mass. 160, 169; Commonwealth vs. Vincent, 108 Mass. 441, 445; Angell on Water Courses, sec's 41, 42; Gould on Waters, sec. 84; 12 Amer. & Eng. Enc. of Law, tit. "Lakes and Ponds." 2 Post, Chap. III. secs. 86-88. 3 Gould on Waters, sec. 41; Angell on Water Courses, sec. 4. 4 Callis on Sewers, 77; Woolrych on Waters, 31; Tenterden, C. J., in Rex vs. Oxfordshire, I. B. & Ad., 289; 20 Eng. C. L. 389; Rex vs. Trafford, I. B. & Ad. 874; 20 Eng. C. L. 389; 8 Bing. 204; 21 Eng. C. L. 272; Queen vs. Derbyshire, 2 Q. B. 745; Rex vs. Whitney, 3 Ad. & El. 69; 30 Eng. C. L. 33; 7 C. & P. 208; Abraham vs. Great Northern Railway Co., 16 Q. B. 586, 597; 71 Eng. C. L. 584; Menzies vs. Breadalbane, 3 Wilson & Shaw, 234, 243; In Benson vs. Connors, 63 always in one direction, but it does not include surface water conveyed from a higher to a lower level for limited periods, during the melting of snow or during or soon after the fall of rain, through hollows or ravines which at other times are dry. However, a river or water-course may be sometimes dry, but in order that it come within the definition it must appear that the water usually flows in a particular direction, Iowa, 670, it was where the court finding that there was a "water channel," a "natural channel" and the "natural flow of water therein" held conclusive that it was a natural stream and not a mere surface channel; McHardy vs. Ellice, I Can. App. 628; 39 Q. B.(Can.),546; 37 Id. 580; Palmer vs. Waddell, 22 Kansas, 352; Ashley vs. Wolcott, II Cush 192; Gibbs vs. Williams, 25 Kans. 149; Serrin vs. Grefe, 25 N. W. Rep. 228; Chicago R. R. Co. vs. Morrow, 42 Kansas 339. The bed is the soil so occupied by the stream as to be wrested from vegetation: Houghton vs. Chicago Ry. Co., 47 Iowa 370. The bank of a stream is the continuous margin where vegetation ceases, and the shore is the pebbly, rocky space between that and the low water mark. McCullough vs. Wainright, 14 Pa. St. 171. The banks are those elevations which contain the river; its natural channel when there is the greatest flow of water. Bouvier Law. Dict.; Howard vs. Ingersoll, 13 How. 426; Gould on Waters, Sec. 41; Starr vs. Child, 20 Wend. 149; State vs. Gilmanton, 9 N. H. 461; 14 N. H. 467. 1Angell on Waters, Sec. 4; Gavit's Adm'rs vs. Chambers, 3 Ohio 496; Weis vs. Madison, 75 Ind. 241; 39 Am. Rep. 135; Hoyt vs. Hudson, 27 Wis. 656, 661; 9 Am. Rep. 472; in which Mr. Chief Justice Dixon of the Supreme Court in the opinion said: "The term 'water course' is well defined. There must be a stream usually flowing in a particular direction, though it need not flow continually. It may sometimes be dry. It must flow in a definite channel having a bed, sides, or banks, and usually discharge itself into some other stream or body of water. It must be something more than a mere surface drainage over the entire face of a tract of land, occasioned by unusual freshets or other extraordinary causes. It does not include the water flowing in the hollows or ravines in the land, which is the mere surface water from rain or melting snow, and is discharged through them from a higher to a lower level, but which at other times are destitute of water. Such hollows or ravines are not in legal contemplation water courses." Washburn on Easements, 209, 210; Howard vs. Ingersoll, 54 U. S. 381; Shields vs. Arndt, 3 Green's Ch. 234; Rice vs. Evansville, 6 West Rep. 244; Luther vs. Winnissimet Co., 9 Corp. 171; Reynolds vs. McArthurs 2 Peters 417. And and has a regular channel with bed, banks, or sides.1 whatever may be its source, as soon as the water becomes a part of a natural stream it belongs to him in whom is the property of the stream itself. Mr. Chief In the case of Reynolds vs. Mc. Arthur, Justice Marshall in rendering the opinion of the Court upon the proposition advanced by some that the source of a river must be considered as commencing at that point in its channel from which water flows at all seasons of the year, in opposition thereto, said, "Is this proposition so invariably true as to become a principle of law? We think it is not. A stream may acquire the name of a river, in the channel of which at some season of extreme drought no water flows. For a great portion of the year, part of a stream may flow in great abundance, in which during a very 1 Chasemore vs. Richards, 7 H. L. Cas. 349; 5 H. & N. 983; 2 H. & N. 168; Rawstrom vs. Taylor, 11 Exch. 369; Broadbent vs. Ramsbotham, II Exch. 602; Luther vs. Winnessimet Co., 9 Cush 171: Ashley vs. Wolcott, II Cush. 192, 195; Parks vs. New barryport, 10 Gray 28. In which the court held that the passage of water from rain and melting snows for twenty years gives no right to its continuance, as no action will lie for the interruption of mere surface drainage. Flagg vs. Worcester, 13 Gray, 601; Dickinson vs. Worcester, 7 Allen, 19: Wheeler vs. Worcester, Io Allen, 591; Gannon vs. Hargadon, 10 Allen, 106; Bates vs. Smith, 100 Mass., 181; Emery vs. Lowell, 104 Mass., 13; Morrill vs. Hurley, 120 Mass.,99; Bassett vs. Company, 43 N. H., 578; Coffman vs. Griesemer, 26 Penn. St., 407; Earle vs. Hart, I Beas'1, 280, 283; State vs. Gilmanton, 14 N. H., 467; Bangor vs. Lansil, 51 Maine, 521; Greeley vs. Maine Central Ry. Co., 53 Maine, 200; Morrison vs. Bucksport Ry. Co., 67 Maine, 353; Buffum vs. Harris, 5 R. I., 243; Earl vs. De Hart, 1 Beas'l, 280; Bowlsby vs. Speer, 31 N. J. L., 351; Gillham vs. Madison Ry. Co., 49 Ill., 484; Shields vs. Arndt, 3 Green Ch., 234; Beard vs. Murphy, 37 Vt., 99; Swett vs. Cutts, 50 N. H., 439; Hoyt vs. Hudson, 27 Wis., 656; Eulrich vs. Richer, 37 Wis., 226; 41 Wis., 318; Barnes vs. Sabron, 10 Nev., 217; Eddy vs. Simpson, 3 Cal., 249; Shively vs. Hume, 10 Ore., 76; Geddis vs. Parrish, I Wash. St., 587; 21 Pac. Rep., 314; New Albany Ry. Co. vs. Peterson, 14 Ind., 112. Greencastle vs. Hazelett, 23 Ind., 186; Schlichter vs. Phillipy, 67 Ind., 201; Crewson vs. Grand Trunk Ry. Co., 27 Q. B. (Can.) 68. 2 Washburn on Easements, 210 and cases cited. 32 Peters 417. |