Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1896-03-13
THE MARLBORO SOUTH POND CASE.
OPINION OF THE SUPREME COURT AS DELIVERED BY
ROwELID


lllllt SLIthUls VI rivers iUdl are UOl VI tOul-
mon passage for the Kings people; and
there be other rivers, as well fresh as salt,
that are of common or public use for the
carriage of boats and lighters, and these,
whether they are fresh or salt, whether they
flow and reflow or not, are, primd fdcie, pub
Hci juriS, common highways for man or
goods or both from one inland town to an
other Thus, the rivers of Wey, of Sew
ern, of Thames, and divers others, as well
above the bridges and ports as below, as
well above the flowing of the sea as below,
and as well where they have come to
be of private propriety as in what part
they are of the Kings propriety, are pub
lie rivers, .juriS pubiicL"
Thus it appears that to determine wheth-
er non-tidal river is public or private in
use-for none of them is public in own.
ership-the common law test is, whether
it is boatabe as a highway as distinguish
ed from navigable in its technical and legal
sense
The law applicable to non-tidal rivers in
England is also applicable to inland lakes
and ponds, however large, aud in them the
Crown has no de jure right of soil nor of
fishery. BriStoU =. CormicdR, l.. K. 3 App.
Gas. GAL.
land before and at the time of the adop-
tion of our constitution in 1777. in which
the provision in question was substantially
the same as now, and was taken from the
Pennsylvania constitution of 177G, in
which the language was, "boatable waters
and others not private property The
trainers of our constitution must be pre-
sumed % have been familiar with the
lavr- for no it,I nf tho
state had been and were "habituated to
conform their manners to the English law,
and TO hold their real estates by English
tenures.' Preamble to the act adopting
the common and statute law of England,
passed in 1882 State Papers $50. Know
ing that law, they undoubtedly regarded it
inapplicable in respect of fishing to the To-
cal situation and circumstances, for under
it we had no waters in which fishing was
or would be free as against private owner
ship, for none of them was naviga-
bic, not even Lake Champlain, within the
common-law meaning of that term, and
that was the only meaning with which
they were acquainted, for then the doc
trine that waters navigable in fact are nav
igable in law had not been announced in
this country, much less developed and gen
Oloill NoJdbllSltu dS uONs anu ntllGt Il
change of the common law was necessary
in order to insure a common of fishery to
any extent, and therefore when they came
to draft the section in question, they could
not say that the inhabitants should have
liberty to fish in all navigable waters, but
were compelled in order to accomplish
their purpose, to employ some other word,
and so they employed J0dtdbje, an apt
md To Ia. 90
non-navigable waters public in use though
private in ownership, that is, common
highways. Angel on Watercourses, 9th
ed. p. 100, has the distinctive head of The
common-law distinction between rivers
bOdtdJle and ndrigdble, and how far the
distinction has been recognized in this
country" We regard it unwarrantable to
say that "boatable, as used, was intend
ed TO embrace all waters boatable in fact
though private in use as well as in owner
ship, for the common law, with reference
TO which the trainers are presumed to have
acted, did not give such waters the status
of boatability, but classed them by them
selves as private, not only in propriety or
ownership, but in use; as, little streams or
rivers that are not of common passage for
the Kings subjects De JUre Mdris
above quoted.
We also regard it unwarrantable to
say that by recOmbining the words of that
part of the section under consideration,
and placing waters after Other instead
of after "boatable," as it was in the Penn
sylvania constitution, the trainers intend
ed TO alter the provision by making the
words, c'not private property"), qualify
"boatable' also, which they did not do in
the Penn u N So
tended qualification would, TO their minds,
have nulli6ed the provision, as, by the
common law as they knew il, all the waters
OF the state were, or might, and probably
would, under governmental grants, become
private property within the meaning of
those words as they used them and by
that law as we now administer it, such eX-
tended qualification would practically multi
fly the provision, for under it most of our
waters are equally private property in own
ership, though many of them are public in
use.
We hold, therefore, that boatable waters.
within the meaning of the constitution,
are waters that are of common passage"
as highways.
The rule by which to determine whether
waters are OF common passage" as high
ways or not is variously stated but clearly
enough defined. The test of navigability
OF a river is, as stated by the supreme
court OF the United States, whether it can
be used in its ordinary condition as high
way for commerce, conducted in the Gus
tomary mode of trade and travel on water
And they constitute navigable waters of
the United States when they form in their
ordinary condition, by themselves or by
uniting with other waters, a continuous
highway over which commerce is or can be
carried on with other states or foreign
countries in the customary modes in which
such commerce is conducted by water.
The Daniel Ball, 10 Wall. 557. If, how
ever, they do not thus form such continu-
Gus highways, but are navigable only be-
tween places in the same state, they are
not navigable waters of the United States,
but only of the state. The MOnteHo, II
Wall. All. Hence the capability of use by
the public for the purposes of transporta-
tlon aud commerce, affords the true crteri-
on of the navigabil:ty of river rather
than the extent and manner of that use.
If 1t be capable in its natural state of be-
ing used for purposes of commerce, no
matter in what mode the commerce may be
carried on, it is navigable in fact, and
therefore becomes in our law public river
or highway. The MOntellO, 20 Wall. 43O.
1t is not, however, as Chief Justice Shaw
said in ROloe q. The Granite Bridge Co., p
PICK. 344, Every small creek in which a
hshing skitf or a cunning canoe can be
hoated at high water that is deemed navi.
gable; but in order to have this character
II must be navigable to some purpose use
tul to trade or agriculture.