The navigable waters of the United States are such as are navigable in fact; Scranton v. Wheeler, 57 Fed. 803, 6 C. C. A. 585, 16 U. S. App. 152 ; and which by themselves, or in connection with other waters, form a con tinuous channel for commerce with foreign countries or among the states ; Miller v. New York, 109 U. S. 385, 3 Sup. Ct. 228, 27 L. Ed. 971.
A river may be navigable below the ebb and flow of the tide in the sense of the com mon law, and, in fact, navigable above ; and the question of boundary in respect to lands adjoining it will be determined by one prin ciple above, and by another below tide-wa ter ; Attorney General v. R. Co., 27 N. 1. Eq. I. It is not necessary that the stream should be navigable all the year round ; Thunder Bay R. B. Co. v. Speechly, 31 Mich. 336, 18 Am. Rep. 184; Bucki v. Cone, 25 Fla. 1, 6 South. 160. There can be no prescrip tive right to maintain or continue an obstruc tion to the navigation of a public stream; Olive v. State, 86 Ala. 88, 5 South. 653, 4 L. R. A. 33.
"The term `navigable waters,' as common ly used in the law, has three distinct mean ings : first, as synonymous with `tide-wa ters,' being waters whether fresh or salt wherever the ebb and flow of the sea is felt; or second, as limited to tide-waters which are capable of being navigated for some use ful purpose ; or third, as including all waters, whether within or beyond the ebb and flow of the tide which can be used for naviga tion." Com. v. Vincent, 108 Mass. 447. See 19 Am. L. Reg. N. S. 147. In North Caro lina the test of navigability is not whether the stream is subject to the ebb and flow of the tide, but whether it is navigable for sea going vessels ; State v. Eason, 114 N. C. 787, 19 S. E. 88, 23 L. R. A. 520, 41 Am. St. Rep. 811; while in South Carolina the test is its navigable capacity, without regard to the character of the craft ; Heyward v. Min. Co., 42 S. C. 138, 19 S. E. 963, 20 S. E. 64, 28 L. R. A. 42, 46 Am. St. Rep. 702.
In New York, it seems that courts are bound to take judicial notice of what streams are, and what are not, highways, at com mon law ; Browne v. Scofield, 8 Barb. (N. Y.) 239; but it has been held that what is a navigable stream is a mixed question of law and fact; if a stream is not navigable the legislature cannot declare it to be so, because the legislature cannot appropriate it to pub lic use without provision. for compensation ; Morgan v. King, 35 N. Y. 454, 91 Am. Dec. 58.
The technical title to the beds of naviga ble rivers of the United States is either in the states in which the rivers are situated or in the riparian owners, depending on the local law. It is a qualified one, and subordinate to the public right of navigation and sub ject to the absolute power" of congress over the improvement of navigable rivers. Un der the constitution, congress can adopt any means for the improvement of navigation that are not prohibited by that instrument itself. The judgment of congress as to whether a construction in or over a naviga ble river is or is not an obstruction to navi gation is an exercise of legislative power and wholly within its control and beyond judicial review. The flow of the stream of a naviga ble river is in no sense private property, and there is no room for judicial review, at the instance of a private owner of the banks of the stream, of a determination of congress that such flow is needed for the improvement of navigation. One placing obstructions in a navigable stream under a revocable permit of the secretary of war does not acquire any right to maintain them longer than the gov ernment continues the license. Private right
to running water in a great navigable stream is inconceivable. Every structure in the wa ter of a navigable river is subordinate to the right of navigation and must be removed, even if the owners sustain a loss thereby, if congress, in assertion of its power over navigation so determines ; U. S. v. Chandler Dunbar Co., 229 U. S. 54, 33 Sup. Ct. 667, 57 L. Ed. 1063.
Such waters entirely within the limits of a state are subject to the same control by the federal government as those extending through or reaching beyond the limits of the state ; Minnesota C. & P. Co. v. Pratt, 101 Minn. 197, 112 N. W. 395, 11 L. R. A. (N. S.) '105.
The use and control of waters lying with in the geographical boundaries of the United States is not restrained by international comity; Minnesota Canal & P. Co. v. Pratt, 101 Minn. 197, 112 N. W. 395, 11 L. R. A. (N. S.) 105. Express authority is necessary to authorize the laying out of a highway into a navigable body of water for the purpose of a wharf or lauding place ; Com'r. of High ways. v. Ludwick, 151 Mich. 498, 115 N. W. 419, 15 L. R. A. (N. S.) 1170, 14 Ann. Cas. 287; Chase v. Cochran, 102 Me. 431, 67 Atl. 320; an act giving a city the right to pro ject or extend streets over tide lands is au thorized only for the extension of the ex isting streets ; Seattle & M. Ry. Co. v. State, 7 Wash. 150, 34 Pac. 551, 22 L. R. A. 217, 38 Am. St. Rep. 866; it has been held that a lake may be filled in along the shore to ac commodate a street; People v. Kirk, 162 III. 138, 45 N. E. 830, 53 Am. St. Rep. 277 ; that a town has jurisdiction to lay out a highway over land that is above -mean high water mark although it is covered by the sea during the highest tides ; Hunt v. Com., 183 Mass. 307, 67 N. E. 966. It has been held in England that the metropolitan board of works has no power to erect any works on the bed or soil of the Thames without the consent of the admiralty and the conserva tors of the river; 13 C. B. N. S. 768; 8 Jur. N. S. 891; 6 L. T. N. S. 187; the fact that the extension of a railroad across an arm of the sea would interfere with plaintiff's rights to navigate such waters does not in flict on him an injury different from that done to the public at large so as to entitle him to an injunction ; O'Brien v. R. Co., 17 Conn. 372.
The act of congress of March 3, 1899, pro vides that no bridge, dam, dike or causeway shall be built over any harbor, river, canal or other navigable water until the consent of congress shall have been obtained and the plans approved by the chief of engineers and the secretary of war. The consent of con gress is not required if a bridge is built by authority of a state legislature across rivers and waterways the navigable portions of which be wholly within the limits of a single state..
This act does not extend to an existing bridge but does cover the rebuilding of such; Rogers Sand Co. v. R. Co., 139 Fed. 7, 71 C.
C. A. 419 (the earlier act of a like character of September 19, 1890, was held not to ap ply to a bridge the construction of which had been authorized by law prior to the act ; Adams v. Ulmer, 91 Me. 47, 39 Atl. 347).
In the absence of congressional action, a state may authorize a construction over nav igable waters ; Depew v. Board, 5 Ind. 8 ; Highway Com'rs v. Chaffee, 1 Mich. N. P. 147; Kansas City M. & B. R. Co. v. Wiygul, 82 Miss. 223, 33 South. 965, 61 L. R. A. 578; though it more or less obstructs navigation ; Fall River I. W. Co. v. R. Co., 5 Allen (Mass.) 221.
See DAN1 ; BRIDGE ; WATERS ; WATER CO CTRSE ; RIVERS ; LAKE ; RIPARIAN PROPRIE TORS; TIDE-WATER.