changes with the changes in the middle of the river's main channel, due to the gradual shifting of the soil. Bellefontaine Imp. Co. v. Niedringhaus (1899), 181 Ill. 426, 55 N. E. 184; McBaine v. Johnson, 155 Mo. 191, 55 S. W. 1031; Bonewits v. Wygant, 75 Ind. 41. The boundary between Illinois and Iowa is the middle of the main navigable channel of the Mississippi, and not the middle of the river bed. (Keokuk & H. Bridge Co. v. People (III.), 47 N. E. 313.) For the confirmation of the report of the commissioners appointed to remark the boundary between Missouri and Iowa, see State of Missouri v. State of Iowa, 165 U. S. 118, 17 S. Ct. 290. The boundary between Missouri and Nebraska in the vicinity of Island As to the apportionment of accretions among riparian proprietors, see Where A's land was bounded by a river, and B's land, which lay entirely sell, 86 Mo. 209.) (Buse . Rus Where two nations are possessed of territory on opposite sides of a bay or navigable river, the sovereignty of each presumptively extends to the middle of the water from any part of their respective shores. But, where one nation first takes possession of the whole of the bay or navigable river, and exercises sovereignty thereon, the neighboring people shall nevertheless be "lords of their particular ports, and so much of the sea or navigable river as the convenient access to the shore requires.” Crittenden, At. Gen. (1851), 5 Op. 412. As to the concurrent jurisdiction exercised by Minnesota and Wisconsin over the St. Croix River, see Opsahl v. Judd, 30 Minn. 126. Grants of land bounded by fresh-water rivers, where the expressions designating the water line are general, confer the proprietorship on the grantee to the middle thread of the stream, and entitle him to accretions. This rule applies to a great publie water course, like the Mississippi at St. Louis. The doctrine that on rivers "where the tide ebbs and flows" grants of land are bounded by ordinary highwater mark" has no application in this case; " nor does the size of the river alter the rule. Jones v. Soulard, 24 Howard, 41. On these grounds it was held that the city of St. Louis, being bounded by the Mississippi," extended to the middle of that river. By the common law the title of owners of land bordering on rivers above the ebb and flow of the tide extended to the middle of the stream; below such ebb and flow it extended only to the ordinary high-water mark, the title to the land below that mark being in the Crown. The foundation of this rule was the fact that in England the ebb and flow of the tide constituted the essential test of navigability. In the United States, owing to the character of its streams, the rule of the ebb and flow of the tides is inapplicable, and the true test is found in the fact of navigability. This is the doctrine in many of the States, though in some of them the rule of the common law has been maintained. In the courts of the United States the rule of ebb and flow of the tide for determining navigability has been discarded since the case of The Genesee Chief, 12 Howard, 443, 455. What is described in Barney v. Keokuk, 94 U. S. 324, 338, as the confusion of navigable with tide water, found in monuments of the common law," long prevailed in the United States, and for two generations excluded the admiralty jurisdiction from the great rivers and inland seas. .6 Packer . Bird (1891), 137 U. S. 661. An owner of lands on a navigable stream holds only to highwater mark and not to the middle of the stream. Wallace r. Driver, 61 Ark. 429, 33 S. W. 641; Perknis r. Adams (Mo.) 33 S. W. 778. Low-water mark is the point to which the river recedes at its lowest stage; high-water mark is the line to which the river rises for periods sufficient to deprive the soil of vegetation and render it valueless for agriculture. (Paine Lumber Co. v. United States, 55 Fed. Rep. 854; Carpenter v. Board of Comrs. (Minn.), 56 Minn. 513, 58 N. W. 295.) A mussel-bed over which the water ebbs and flows at every tide, and between which and the shore no water flows at low tide, is not an island, but belongs to the owner of the adjacent shore. (King v. Young, 76 Me. 76, 49 Am. Rep. 596.) (2) NAVIGATION. § 129. It was said in The Montello, 20 Wall. 430, 439, that public navigable rivers were those that were "navigable in fact;" and that they were 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 travel on water." And again (p. 442): "It is not, however, as Chief Justice Shaw said, 21 Pick. 344, every small creek in which a fishing skiff or gunning canoe can be made to float at high water which is deemed navigable, but, in order to give it the character of a navigable stream, it must be generally and com monly useful to some purpose of trade or agriculture." These utterances in the case of The Montello related to the Fox River, in which there was an abundant flow of water and a general capacity for navigation along its entire length, so that, although it was at certain places obstructed by rapids and rocks, yet if those obstructions were overcome by canals and locks the stream could in its ordinary condition be used for general purposes of navigation. The Rio Grande within the limits of New Mexico is not such a stream. The ordinary flow of water is insufficient. Its use for any purposes of transportation has been and is exceptional and only in times of temporary high water. The mere fact that logs, poles, and rafts are floated down a stream occasionally and in times of high water does not make it a navigable river. United States v. Rio Grande Dam & Irrigation Co. (1899), 174 U. S. 690, 698-699. A stream which can, in its natural state, be used, though not necessarily at all times, for the purposes of commerce in the transportation of merchandise is a public navigable river. Walker v. Allen, 72 Ala. 456; Olive v. State, 86 Ala. 88; Morrison v. Cole- The unquestioned rule of the common law was that every riparian owner was entitled to the continued natural flow of the stream, but while this rule obtained in those States of the Union that have simply adopted the common law, each State may, within its do minions, change the rule and permit the appropriation of the flowing waters for such purposes as it deems wise. This power is, however, subject to two limitations: (1) That without specific authority of Congress a State can not destroy the right of the United States as the owner of lands on a stream to the continued flow of the water, so far, at least, as may be essential to the beneficial uses of the Government property, and (2) that the General Government possesses a paramount power to secure the uninterrupted navigability of all navigable streams within the limits of the United States. By acts of July 26, 1866, § 9, 14 Stat. 253 (Rev. Stat. § 2339), March 3, 1877, 19 Stat. 377, and March 3, 1891, 26 Stat. 1101, Congress recognized and assented to the appropriation of water in contravention of the common-law rule as to continuous flow, but did not release its control over the navigable streams of the country. By section 10 of the act of September 19, 1890, 26 Stat. 454, it is declared that " the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters in respect of which the United States has jurisdiction, is hereby prohibited." The obvious meaning of this act was that no State should thereafter interfere with the navigability of a stream without the national assent, and by section 3 of the act of July 13, 1892, 27 Stat. 88, amending section 7 of the act of September 19, 1890, the erection of any structure in any navigable waters of the United States, without permission of the Secretary of War, in such manner as to obstruct or impair navigation, commerce, or anchorage therein is declared to be unlawful. United States v. Rio Grande Dam & Irrigation Co. (1899), 174 U. S. 690. Courts take judicial notice that certain rivers are navigable and others not so, since these are matters of general knowledge, but it does not follow that the particular place between its mouth and its source where a river ceases to be navigable is a matter of common knowledge, and this being so, the question is one to be determined by evidence. United States v. Rio Grande Dam & Irrigation Co. (1899), 174 U. S. 690. The question of the navigation of the Mississippi was the subject of consideration in the Continental Congress and of The Mississippi. negotiation at Madrid during the American Revolution, Spain demanding the recognition of her claim to the exclusive navigation of the river as a necessary condition of aid to the United States in their struggle with Great Britain." a See Wharton, Dip. Cor. Am. Rev. VI. 951. The treaty of peace between the United States and Great Britain of 1782-83 declared (Art. VIII.): "The navigation of the river Mississippi, from its source to the ocean, shall forever remain free and open to the subjects of Great Britain and the citizens of the United States." In 1790 the diplomatic representative of the United States at Madrid was instructed to urge upon the Spanish Government the immediate opening of the river." In a report to the President of March 18, 1792, Mr. Jefferson, as Secretary of State, asserted the right of the United States to the free navigation of the Mississippi within the Spanish dominions on the ground (1) of the treaty of Paris of 1763, (2) of the treaty of peace with Great Britain of 1782-83, and (3) of the law of nature and nations," a ground declared to be "still broader and more unquestionable" than either of the others. "The ocean," said Mr. Jefferson, "is free to all men, and their rivers to all their inhabitants. . . Accordingly, in all tracts of country united under the same political society, we find this natural right universally acknowledged and protected by laying the navigable rivers open to all their inhabitants. When their rivers enter the limits of another society, if the right of the upper inhabitants to descend the stream is in any case obstructed, it is an act of force by a stronger society against a weaker, condemned by the judgment of mankind. The Roman law, which, like other municipal laws, placed the navigation of their rivers on the footing of nature, as to their own citizens, by declaring them public (flumina publica sunt, hoc est populi Romani, Inst. 2, t. 1, § 2), declared also that the right to the use of the shores was incident to that of the water. Ibid. §§ 1, 3, 4, 5." Am. State Papers, For. Rel. I. 253, 254; Jefferson's Works, VII. 577, 580. By the treaty of October 27, 1795, the King of Spain agreed (Art. IV.) that the navigation of the Mississippi should “be free only to his subjects and the citizens of the United States, unless he should extend this privilege to the subjects of other powers by special convention," and conceded (Art. XXII.) a right of deposit for merchandise at New Orleans. 66 Moore, Int. Arbitrations, II. 998; Adams, Hist. of the U. S. I. 348–349. The United States have a just claim to the use of the rivers which pass from their territories through the Floridas. They found their a Mr. Jefferson, Sec. of State, to Mr. Carmichael, Aug. 2, 1790, Am. State Papers, For. Rel. I. 247. See, also, Mr. Jefferson, Sec. of State, to Messrs. de Viar and Jaudenes, Jan. 25 and Jan. 26, 1792, 4 MS. Am. Let. 349, 350. See, as to negotiations of 1785-1788, Trescot, Dip. History, 43–50. |