Ellis v. Carey

HICE, C. J. In Angelí on Water-courses, (5th edition, § 535,) it is laid down, that all rivers above the flow of tide-water are, by the common law, prima facie, private; but, when they are naturally of sufficient depth for valuable flotage, the public have an easement therein, for the purposes of transportation and commercial intercourse; and, in fact, they are public highioays by water. In The People v. Platt, 17 Johns. 211, Chief-Justice Spencer, in delivering the opinion of the court, states the law thus: “The distinguishing test, between those rivers which are entirely pri vate property, and those which are private property subject to the public use and enjoyment, consists in the fact, toheiher they are susceptible or not of use as a common passage for the public.” Lord Hale, in his treatise De Jure Maris, edited by Mr. Hargrave, pages 8 and 9, says, “There be some streams or rivers, that are private, not only in property and ownership, but also in use ; as little streams or 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 p ublic-use for carriage of boats and lighters; and these, whether they are fresh or salt, whether they flow and re-flow, or not, are, prima facie, publici juris — common highways for man or goods, or both, from one inland town to another.” [728] Murder creek near Fort Crawford, the site of the bridge, is a fresh-water creek, and not affected by the ebb and flow of the tide. Its size does not distinctly appear. It does not appear to be of “common, or'public use for carriage of boats and lighters.” In the survey of the public lands of the United States, it was treated as not navigable ; for the government surveyors made no fractional sections upon its margin, but ran the land-lines entirely across the stream. In that survey, it was treated as land merely, and as much the subject of sale and private ownership and use, as any other part of the tract of land on its margin. It has not, to our knowledge, or the knowledge of the parties or their counsel, ever been declared by legislative authority to be a public highway. In view of these facts, and of the common-law presumption above stated, that all rivers above the flow of tide-water are private, we cannot hold that there was error in the charge, that upon the evidence set forth in the bill of exceptions, the said creek was “not a navigable stream.” — Palmer v. Mulligan, 3 Caines’ Rep. 318; Munson v. Hungerford, 6 Barbour’s Rep. 205; Cates v. Wadlington, 3 McCord’s Rep. 580; Angell on Watercourses, §§ 535-550; Morgan v. Reading, 3 Smedes & Marsh. 366. Judgment affirmed.