TIDE. The ebb and flow of the sea.
The law takes notice of three kinds of tides, viz.: the high spring tides, which are the fluxes of the sea at those tides which happen at the two equinoctials; the spring tides, which happen tvvice every month, at the full and change of the moon; the neap or ordinary tides, which happen betvreen ths full and change of the moon, twice in twenty four hours. Angell, Tide-Wat. 68. The changeable condition of the tides produces, of course, corresponding changes in the lins of high-water mark. Now, inasmuch as the eoil of all tidal waters up to the limit of high water mark, at common law, is in the crown, or, in this country, in the state, it is import ant to ascertain what is high-water mark, in legal contemplation, considered as the boundary of the royal or public ownership. In a recent English case this ownership has been held to be limited by the average of ths medium high tides between the spring and the neap in each quarter of a lunar revolu tion during the year, excluding only extraor dinary catastrophes or overflows. 4 DeGex, M. & G. 206. See, also, 3 Barnew. & Ald. 967; 5 id. 268; 2 Dougl. 629; 7 Pet. 324 ; 1 Pick. Mass. 180 ; 2 Johns. N. Y. 357 ; RIVER.
Water which flows and reflows with ths tide. All arms of the sea, bays, creeks, coves or rivers, in which the tide ebbs and flows, are properly denomi nated tide-waters.
2. The term tide-water is not limited to water which is salt, but embraces, also, so Much of the water of fresh rivers as is pro pelled backwards by the ingress and pressure of the tide. 5 Coke, 107 ; 2 Dougl. 441; 6 Clark & F. Hou. L. 628 ; 7 Pet. 224. The supreme court of the United States has de cided that, although the current of the river Mississippi at New Orleans may be so strong as not to be turned backwards by the tide, yet if the effect of the tide upon the current is so great as to occasion a regular rise and fall of the water, it might properly be said to be within the ebb and flow of the tide. 7 Pet. 324. The flowing, however, of
the waters of a lake into a river, and their reflowing, being caused by the occasional swell and subsidence of the lake, and not by the ebb and flow of regular tides, do not con stitute such a river a tidal or, technically, nevi gable river. 20 Johns. N. Y. 98. And see 17 Johns. N. Y. 195 ; 2 Conn. 481; Woolrych, Waters, c. ii.; Angell, Tide-Wat. c.
3. The bed or soil of all tide-waters , belongs, in England, to the crown, and in this country to the state in which they lie ; and the waters themselves are public: sc that all persons may use the same for the purposes of navigation and fiehery, unless restrained by law. 5 Barnew & A. 304 ; 1 blacq. Hou. L. 49 ; 27 Eng. L. & Eq. 242 ; 4 Ad. & E. 384; 8 id. 329 ; Angell,Watercourses, a. xiii. In England, the power of parlia ment to restrain or improve these rights is held to be absolute. 4 Barnew. & C.598. In this country, such a power is subject to the limitations of the federal constitution ; and while both the general and state governments may adopt measures for the improvement of navigation, 7 Pick. Mass. 209; 6 Rand.'Va. 245 ; 14 Serg. & R. Penn.71 ; 4 Rawle, Penn. 9 ; 9 Watts, Penn, 119 ; 9 Conn. 436, and the states may grant private rights in tide-waters; pro vided they do not conflict with the public right of navigation, 21 Pick. Mass. 344; 23 id. 360, yet neither the general nor the state governments have the power to destroy or materially impair the right of navigation. The state governments have no such power, because its exercise would be in collision with the laws of congress regulating com merce, 9 Wheat. 1: the general government has no such power, because the states have never relinquished to it such a power over the waters within their jurisdictional limits. 2 Pet. 245. And see Barnog. As to the power of the state to regulate the public fisheries, see FISHERY. And see, generally, RIVER;