NAVIGABLE. Capable of being navi gated.
2. In its technical sense, the term navi gable, at common law, is only applied to the sea, to arms of the sea, and to rivers which flow and reflow with the tide,in other words, to tide-waters, the bed or soil of which is the property of the crown. All other waters are, in this sense of the word, unnavigable, and are, primci facie, strictly private property ; but in England even such waters, if naviga ble in the popular sense of the terra, are, either of common right or by dedication, subject to the use of the public as navigable highways, the fee or soil remaining in the riparian pro prietors. Das. Dist. Ct. 149 ; 5 Taunt. 705 ; 1 Pick. Mass.. 180 ; 5 id. 199 ; Woolrych, Waterc. 40; Angell, Tide Wat. 2d ed. 75-79.
3. In the United States, this technical use of the term has been adopted in many of the states, in so far as it is employed to designate and define the waters the bed or soil of which belongs to the state. 4 N. Y. 472; 26 Wend. N. E 404 ; 4 Pick. Mass. 268 , 2 Conn. 481 ; 3 Me. 269; 31 id, 9 ; 16 Ohio, 540 ; 1 Mist. N. J. 31 ; 4 Wisc. 486 ; 2 Swan, Tenn. 9. But in Pennsylvania, 2 Binn. Penn. 475 ; 14 Serg. & R. Penn. 71 ; in North Caro lina, 1 M'Cord, So. C. 580 ; 3 Ired. No. C. 277 ; 2 Dev. No. C. 30 ; 3 id. 59 ; in Iowa, 3 Iowa, 1 4 id. 199 and in Alabama, 11 Ala. 436, the technical use of the term has been en tirely discarded, and the large fresh-water rivers of those states have been decided to be navigable, not only as being subject to public use as navigable highways, but also as having their bed or soil vested in the state.
4. The rule of the common law, by which the ebb and flow of the tide has been made the criterion of naviga.bility, has never been adopted in any of the United States, or, if adopted, it has been in a form modified and improved t,o fit the condition of the country and the wants of its inhabitants. According to the rule administered in the courts of this country, all rivers which are found "of suffi cient capacity to float the products of the mines, the forests, or the tillage of the coun try through which they flow, to market," 8 Barb. N. Y. 239, or which are capable of use "for the floating of vessels, boats, rafts, or logs," 31 Me. 9, are subject to the free a,nd unobstructed navigation of the public, inde pendent of usage or of legislation. i0 Johns. N. Y. 90; 5 Wend. N. Y. 358 ; 42 Me. 552; 18 Barb. N. Y. 277 ; 5 Ind. 8; 2 Swan, Tenn. 9 ; 29 Miss. 21 ; 6 Cal. 180 ; 2 Stockt, N. J. 211.
In New York, it seems that courts are bound to take judicial notice of what streams are, and what are not, highways, at common law. 8 Barb. N. Y. 239. See ARM or THE SEA;