But tidal channels are navigable in law only when they are navigable in fact for trade and commerce by craft of some kind. State v. Pacific Guano Co. (1884), 22 S. C. 50; rehearing denied (1886), 24 S. C. 598. And the doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or, indeed, any test at all, of the navigability of waters. The Daniel Ball (1870), 77 U. S. (10 Wall.) 557, 19 L. Ed. 999; [C. S. p. 12152].

A river which is navigable in fact is navigable in law. Genessee Chief (1851), 12 How. 443, 13 L. Ed. 1058 [C. S. p. 12153].

Diana Shooting Club r. Husting (1914), 145 N. W. 816, 156 Wis. 261.

In order to be a navigable stream it is not necessary that the waters shall be deep enough to admit the passage of boats at all portions of the stream. St. Anthony Falls Water Power Co. v. Board of Water Commissioners of City of St. Paul, Minn. (1897), 18 Sup. Ct. 157, 168 U. S. 349, 42 L. Ed. 497.

As to navigability, see Charleston & S. Ry. Co. v. Johnson (1884), 73 Ga. 306 [C. S. p. 12153]; State v. West Tennessee Land Co. (1913), 158 S. W. 746, 127 Tenn. 575, Ann. Cas. 1914B, 1043.

Streams capable of being used for the purpose of carrying boats, passengers, freight, floating logs, timber, wood, or any other product to market are navigable. The Daniel Ball (1870), 77 U. S. (10 Wall.) 557, 19 L. Ed. 999 [C. S. p. 12153].

Judicial notice of navigability.-The courts will take notice of the navigability of streams. King v. American Transp. Co. (C. C. 1859), Fed. Cas. No. 7,787; Neaderhouser v. State (1867), 28 Ind. 257; Wood v. Fowler (1882), 26 Kan. 682, 40 Am. Rep. 830. But Federal courts can not take judicial notice that a stream is navigable because of an apparently irregular traffic in times of high water, employing Indian canoes and small steamboats and gasoline launches, in face of a declaration by the legislature that such stream is not navigable. Donnelly v. U. S. (1913), 33 Sup. Ct. 1024, 228 U. S. 708, 57 L. Ed. 1035, denying rehearing (1913), 33 Sup. Ct. 449, 228 U. S. 243, 57 L. Ed. 820, Ann. Cas. 1913E, 710. Nor can a court take judicial notice of the character of rivers which are in fact navigable for portions of the year, but their capacity is not historical or traditional. As to geographical and similar facts, not historical and traditional-as here, the capacity of Five Mile Run, in Cattaraugus County, for navigation, etc.-the

court will not take judicial notice. Buffalo Pipe Line Co. v New York, L. E. & W. R. Co. (1880), 10 Abb. N. C., 107. See as to Straight Creek, in Bell County, Hoskins v. Archer (1885), 6 Ky. Law Rep. 671.

Law determining navigability.-What shall be deemed a navigable stream within the local rules of property in the bed of a stream is for the determination of the several States. Donnelly v. U. S. (1913), 33 Sup. Ct. 449, 228 U. S. 243, 57 L. Ed. 820, Ann. Cas. 1913E, 710; rehearing denied (1913), 33 Sup. Ct. 1024, 228 U. S. 708, 57 L. Ed. 1035.

Presumptions

as to navigability.-A stream will not be presumed to be navigable. Leihy v. Ashland Lumber Co. (1880), 49 Wis. 165, 5 N. W. 471.

That a stream was not meandered by the United States surveyors or their deputies raises the presumption that it is not navigable. Clute v. Briggs (1868), 22 Wis. 607. A stream neither meandered nor declared navigable by the Legislature is prima facie nonnavigable. Allaby v. Mauston Electric Service Co. (Wis. 1908), 116 N. W. 4; contra, Sumner Lumber & Shingle Co. v. Pacific Coast Power Co. (1913), 131 P. 220, 72 Wash. 631.

Evidence of navigability.-See Idaho Northern R. Co. v. Post Falls Lumber Co. (1911) 119 P. 1098, 20 Idaho 695, 38 L. R. A. (N. S.) 114; People v. Economy Light & Power Co. (1909) 89 N. E. 760, 241 Ill. 290; Holden v. Robinson Mfg. Co. (1876), 65 Me. 215; Burroughs v. Whitwam (1886), 59 Mich. 279, 26 N. W. 491; State v. Twiford (1904), 48 S. E. 586, 136 N. C. 603.

Question for court or jury as to navigability. Whether a body of water is navi gable is a question of fact for the jury. Jeremy v. Elwell (1890), 5 Ohio Cir. Ct, R. 379; Jones v. Johnson (1894), 6 Tex. Civ. App. 262, 25 S. W. 650 [C. S. p. 12155].

Navigable waters as common highways.It is fundamental law throughout the United States that all navigable waters are common highways, forever free to the use of all citizens of the United States, without any tax, impost, or duty therefor. Leverich v. City of Mobile (C. C. 1867), 110 Fed. 170.

Waters navigable.--An estuary which was not a natural harbor, but has been made a harbor by Government works, is navigable. City of Oakland v. Oakland Water-Front Co. (1897), 50 P. 277, 118 Cal. 160. p. 12155.] Waters held not navigable. [C. S. p. 12156.]

[C. S.

It does not follow that, because a stream or body of water was once navigable, it has

Construction in general.-This act, being in aid of commerce and navigation, should receive a sensible construction to further that end; so far as concerns any liability in case of collision, it probably only emphasizes the previously existing maritime law. The Caldy (D. C. 1903), 123 Fed. 802, 804; affirmed (1907), 153 Fed. 837, 83 C. C. A. 19.

While this section was not intended to absolutely prohibit the anchoring in navigable channels, it makes it unlawful whenever the result is to obstruct other vessels In passing to such extent as to make such passing a dangerous maneuver; and the fact that other vessels have succeeded in passing one so anchored in safety is not proof that her anchorage was not in violation of the statute, or that she was not in fault for a collision with another vessel which was attempting to pass. The Caldy (1907), 153 Fed. 837, 83 C. C. A. 19, affirming decree (D. C. 1903), 123 Fed. 802. It places duty on the owner, and no one else, and he can not shift the responsibility for an injury to another vessel resulting from his failure to perform it upon tugs which caused the wreck by their fault, when he had notice of the situation in ample time to have performed the duty before damage resulted. The Anna M. Fahy (1907), 153 Fed. 866, 83 C. C. A. 48. It does not apply to vessels anchored in a bay where there is navigable water 4 miles in width, though they are in the usual course of passing vessels. The Northern Queen (D. C. 1902), 117 Fed. 906. It was not intended to prevent the aiding of a vessel grounded or in difficulty, even if it involves the temporary obstruction of a channel. The Waverley

(D. C. 1907), 155 Fed. 436. An ocean-going vessel may lawfully lie at anchor in the nighttime in the deep channel of a navigable river if not so placed as to prevent or obstruct the passage of other vessels, in violation of this section. The Europe (1911), 190 Fed. 475, 111 C. C. A. 307.

This section should be construed and enforced strictly in the interest of safe navi

gation, the duty being not negatively, but affirmatively and positively, imposed on vessels coming to anchor in navigable channels to see that they do not under any circumstances, accidents excepted, prevent or obstruct the passage of other vessels. The Margaret J. Sanford (D. C. 1913), 203 Fed. 331; The Pocahontas (D. C. 1914), 217 Fed. 135.

Meaning of words or clauses.-Respondent, a coal company, having in its possession a loaded coal flat moored to its float in the Allegheny River in Pittsburgh, with the right to retain it until it was unloaded, cast it loose during a flood to avoid injury to its float and other vessels, and it sank some distance below. The place was not marked, and some three weeks later libelant's vessel ran into it and was injured. Held, that respondent stood in the place of the owner within this section. Second Pool Coal Co. v. People's Coal Co. (1911), 188 Fed. 892, 110 C. C. A. 526, affirming judgment People's Coal Co. v. Second Pool Coal Co. (D. C. 1910), 181 Fed. 609; writ of certiorari denied (1911), 32 Sup. Ct. 526, 223 U. S. 727, 56 L. Ed. 632.

The words

prevent or obstruct are positive words, indicative of limited restraint and of legislative intent not to Interfere with the right use of waterways by imposing an absolute or unreasonable prohlbition. The Europe (1911), 190 Fed. 475,

111 C. C. A. 307. A log raft is a " vessel." A raft of logs held not a "sack raft." The Mary (D. C. 1903), 123 Fed. 609, 613. See The City of Birmingham (1905), 138 Fed. 555, 71 C. C. A. 115, and The Belfast (D. C. 1914), 226 Fed. 362 defining an obstruction.

Superseding State legislation.-[C. S. p. 12212.]

Care required in the anchorage of vessels. The precautions taken by a vessel anchoring in a dangerous position should be commensurate with the perils assumed. The John H. Starin (1903), 122 Fed. 236, 58 C. C. A. 600; writ of certiorari denied (1903), 23 Sup. Ct. 854, 190 U. S. 559, 47

L

Ed. 1184; The City of Birmingham (1905), 138 Fed. 555, 71 C. C. A. 115; The Europe (D. C. 1909), 175 Fed. 596; The Director (D. C. 1910), 180 Fed. 606.

Vessels mooring, or anchoring, especially in a busy harbor, should do so having regard to the fact that others have the right to navigate the waters; and this obligation should be measured by the increased risk arising from the circumstances of the particular case. The Washington (D. C. 1910), 182 Fed. 885.

The duty is imposed on vessels coming to anchor in navigable channels to see that they do not under any circumstances, accidents excepted, prevent or obstruct the passage of other vessels. The Pocohontas (D. C. 1914), 217 Fed. 135.

A tug and an anchored steamship both held in fault for collision in North River at night between a barge in the tow of the tug and the steamship; the tug for careless navigation, and the steamship for anchoring so that she swung into the fairway. Id.; IC. S. p. 12212].

Vessels lawfully anchored.-This section does not condemn a lighter which, compelled to anchor in the Hudson River because of a dense fog, made her way to the side on which were the anchorage grounds, as far as was considered safe, and anchored after taking soundings which indicated that she was within the grounds; the exercise of precautions commensurate with the danger being all that is required. The Newburgh (1904), 130 Fed. 321, 64 C. C. A. 567, reversing decree (D. C. 1903), 124 Fed. 954.

An ocean-going vessel may lawfully lie at anchor in the nighttime in the deep channel of a navigable river if not so placed as to prevent or obstruct the passage of other vessels, in violation of this section. The Europe (1911), 190 Fed. 475, 111 C. C. A. 307.

The

An anchoring place designated by the barbor master of Boston is સ proper anchorage. though in the channel. Lady Franklin (D. C. 1873), Fed. Cas. No. 7984.

The place of anchorage of vessel anchored in the middle of a river about 1,900 feet wide, where vessels were frequently passing, leaving room on either side for them to pass, was not improper. The Ogemaw (D. C. 1887), 32 Fed. 919.

A barge may properly anchor for the night near the middle of the channel of Delaware Bay, inside the capes, where it is four or five miles wide. Phinney v. The Le Lion (D. C. 1898), 84 Fed. 1011.

Where the bulkhead line of a dock is where it has been maintained for years, and since a time before there was any statute on the subject, persons using the

bulkhead for mooring vessels in the customary manner, with the consent of the city, can not be deemed in fault therefor, although it extends farther into the river than the line as established by law. The Harry B. Hollins (D. C. 1903), 125 Fed. 430.

A steamer which had been disabled, and which was moored on the inside of the Erie Basin Breakwater at the port of Buffalo, some 25 to 30 feet from the channel used by vessels passing from a dock to the open lake, and opposite a bend in such channel, was in a proper place. Rebstock v. Gilchrist Transp. Co. (D. C. 1904), 132 Fed. 174.

A vessel anchored at night In calm weather as the result of a previous collision in Hampton Roads in the middle of the channel, which was there a mile or more wide for seagoing vessels, was not chargeable with violation of this section. The Job H. Jackson (D. C. 1906), 144 Fed. 896, decree affirmed The Ann J. Trainer (1907), 152 Fed. 1021, 82 C. C. A. 332 [C. S. p. 12213].

Vessels unlawfully anchored.-Anchoring vessels of the United States in an unusual and improper position in a harbor, in total disregard of the usages and regulations of the port requiring notice to the harbor master of the intention to anchor, constitutes negligence on the part of the officers of the vessel, which will render the United States liable in the Court of Claims for damages thereby caused to other vessels navigating the harbor." U. S. v. St. Louis & M. V. Transp. Co. (1902), 22 Sup. Ct. 350, 184 U. S. 247, 46 L. Ed. 520.

A dredge, anchored at night within 200 feet of the center of the narrow channel of the Savannah River, held to obstruct the passage of other vessels, in violation of this section. The City of Birmingham (1905), 138 Fed. 555, 71 C. C. A. 115; writ of certiorari denied, P. Sanford Ross v. The City of Birmingham (1905), 26 Sup. Ct. 747, 199 U. S. 607, 50 L. Ed. 331, reversing decree (D. C. 1903), 125 Fed. 506.

A lighter held in fault for deliberately anchoring in a channel during a fog when in the vicinity of the anchorage grounds, which could easily have been reached. The Newburgh (D. C. 1903), 124 Fed. 954; decree reversed (1904), 130 Fed. 321, 64 C. C. A. 567.

A schooner anchored outside the legal limits and too near the channel courses held in fault. The Vera (D. C. 1912, 1914), 224 Fed. 998; judgment affirmed (1915), 226 Fed. 369, 141 C. C. A. 199.

As to vessels unlawfully anchored see Ross v. Cornell Steamboat Co. (1906), 149 Fed. 196, 79 C. C. A. 514, affirming decree