The basic concept of sovereign ownership of the "sea and its arms" as related to public and private rights of soil in the bed and banks of rivers, littoral rights between high and low water mark, and places of "fishery" was transfered to colonial American. However, because the "fall-line" on the east coast was often so near the ocean, the concept of "navigable rivers" was expanded to include commercially navigable rivers beyond the direct influence of the ebb and flow of the tides.
As defined by Chief Justice Taft in Brewer-Elliott Oil & Gas Co. v. U.S., 260 U.S. 77 (1922):
"A navigable river in this country is one which is used, or is susceptible of being used in its ordinary condition, as a highway for commerce over which trade and travel are or may be conducted in the customary modes of trade, and travel on water. It does not depend upon the mode by which commerce is conducted upon it, whether by steamers, sailing vessels or flat boats, nor upon the difficulties attending navigation, but upon the fact whether the river in its natural state is such that it affords a channel for useful commerce. Oklahoma v. Texas, 258 U.S. 574, 42 Sup. Ct. 406, decided May 1, 1922; Economy Light Co. v. United States, 256 U.S. 113, 41 Sup. Ct. 409; The Montello, 20 Wall. 430; The Daniel Ball, 10 Wall. 557, 563."
In his review of the subject in Shively v. Bowlby, 152 U.S. 1 (1894), Justice gray stated:
"By the law of England, Scotland, and Ireland, the owners of the banks prima facio own the beds of all fresh-water rivers above the ebb and flow of the tide, even if actually navigable, to the thread [middle] of the stream, usque ad filum aquae. Lord Hale, in Harg. Law Tracts, 5; Bickett v. Morris, L. R. 1 H. L. Sc. 47; Murphy v. Ryan, 2 Ir. Com. Law, 143; Ewing v. Colquhoun, 2 App. Cas. 839.
"The rule of the common law on this point appears to have been followed in all the original states,-except in Pennsylvania, Virginia, and North Carolina, and except as to great rivers, such as the Hudson, the Mohawk, and the St. Lawrence in New York,- as well as in Ohio, Illinois, Michigan and Wisconsin. But it has been wholly rejected, as to rivers navigable in fact, in Pennsylvania, Virginia, and North Carolina, and in most of the new states. For a full collection and careful analysis of the cases, see Gould, Waters, (2d Ed.) 56-78.
"The earliest judicial statement of the now prevailing doctrine in this country as to the title in the soil of rivers really navigable, although above the ebb and flow of the tide, is to be found in a case involving the claim of a riparian proprietor to an exclusive fishery in the Susquehanna river, in which Chief Justice Tilghman, in 1807, after observing that the rule of the common law upon the subject had not been adopted in Pennsylvania, said:
'The common-law principle is, in fact, that the owners of the banks have no right to the water of navigable rivers. Now, the Susquehanna is a navigable river, and therefore the owners of its banks have no such right. It is said, however, that some of the cases assert that by navigable rivers are meant rivers in which there is no flow or reflow of the tide. This definition may be very proper in England, where there is no river of considerable importance as to navigation which has not a flow of the tide, but it would be highly unreasonable when applied to our large rivers, such as the Ohio, Allegheny, Delaware, Schuylkill, or Susquehanna and its branches.' Carson v. Blazer, 2 Bin. 475, 477, 478.'
(Reference: John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and the Several States of the American Union, Childs & Peterson, c1856.)
NAVIGABLE. Capable of being navigated.
In law, the term navigable is applied to the sea, to arms of the sea, and to rivers in which the tide flows and reflows. 5 Taunt. R. 705; S. C. Eng. Com. Law Rep. 240; 5 Pick. R. 199; Ang. Tide Wat. 62; 1 Bouv. Inst. n. 428.
In North Carolina; 1 M'Cord, R. 580; 2 Dev. R. 30; 3 Dev. R. 59; and in Pennsylvania; 2 Binn. R. 75; 14 S. & R. 71; the navigability of a river does not depend upon the ebb and flow of the tide, but a stream navigable by sea vessels is a navigable river.
By the common law, such rivers as are navigable in the popular sense of the word, whether the tide ebb and flow in them or not, are public highways. Ang. Tide Wat. 62; Ang. Wat. Courses, 205 1 Pick. 180; 5 Pick. 199; 1 Halst. 1; 4 Call, 441: 3 Blackf. 136. Vide Arm of the sea; Reliction; River.
Non-Navigable or "Private" Rivers
Under English common law, grants of lands riparian to any river not affected by the ebb and flow of the tide were considered to include title to the lands underlying the river to its midpoint. These were categorized as "private rivers," having passed from public domain into private ownership by grant. Such grant included places of "fishery" as an incident of the "right of soil."
This principle was brought to the American colonies and applied to land patents later issued by the United States. As stated in Shively v. Bowlby, 152 U.S. 1 (1894):
"By the acts of congress for the sale of the public lands...it is provided 'that all navigable rivers within the territory to be disposed of by virtue of this act shall be deemed to be and remain public highways; and that in all cases where the opposite banks of any stream not navigable shall belong to different persons, the stream and the bed thereof shall be common to both.' Acts May 18, 1796, c. 29, 2, 9; 1 Stat. 464; May 10, 1800, c. 55, 3; March 3, 1803, c. 27, 17; March 26, 1804, c. 35, 6; Feb. 11, 1805, c. 14; 2 Stat. 73, 235, 279, 313; Rev. St. 2395, 2396, 2476.
..."The court [Railroad Co. v. Schurmeir] also expressed an unhesitating opinion that 'congress, in making a distinction between streams navigable and those not navigable, intended to provide that the common-law rules of riparian ownership should apply to lands bordering on the latter, but that the title to lands bordering on navigable streams should stop at the stream, and that all such streams should be deemed to be and remain public highways.'
[As further clarified in Shively]..."The later judgments of this court clearly establish that the title and rights of riparian or littoral proprietors in the soil below high - water mark of navigable waters are governed by the local laws of the several states, subject, of course, to the rights granted to the United States by the constitution."
The rules regarding non-navigable streams were applied in California. For instance Rubel v. Peckham, 94 Calif. App.-2d-834, 837, 211 Pac.-2d-883 (1949); relied on the earlier decision of Lux v. Haggin (1886) that confirmed that a grant to a tract of land bounded by a nonnavigable river or creek conveyed the land to the thread of the stream. The appellate court stated:
"It is sufficient to observe that a conveyance of land which refers to and uses a nonnavigable water course as one of its boundaries conveys the rights of the grantor to the center line of such water course unless such conveyance indicates a different intention by terms expressly limiting the grant."