1551. Regulation of floating timber.-That the Secretary of War shall have power, and he is hereby authorized and directed, within the shortest practicable time after the passage hereof, to prescribe rules and regulations, which he may at any time modify, to govern and regulate the floating of loose timber and logs, and sack rafts, (so called) of timber and logs and other methods of navigation on the streams and waterways, or any thereof, of the character, as to navigation, in section one hereof described. The said rules and regulations shall be so framed as to equitably adjust conflicting interests between the different methods or forms of navigation; and the said rules and regulations shall be published at least once in such newspaper or newspapers of general circulation as in the opinion of the Secretary of War shall be best adapted to give notice of said rules and regulations to persons affected thereby and locally interested therein. And all modifications of said rules and regulations shall be similarly published. And such rules and regulations when so prescribed and published as to any such stream or waterway shall have the force of law, and any violation thereof shall be a misdemeanor, and every person convicted of such violation shall be punished by a fine of not exceeding two thousand five hundred dollars nor less than five hundred dollars, or by imprisonment (in case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court: Provided, That the proper action to enforce the provisions of this section may be commenced before any commissioner, judge, or court of the United States, and such commissioner, judge or court shall proceed in respect thereto as authorized by law in the case of crimes or misdemeanors committed against the United States. Sec. 2, act of May 9, 1900 (31 Stat. 172). Notes of Decisions. Construction in general.-Rules promulgated under this section are in aid of navigation and not for the protection of the owners of the banks of the rivers. Johnson v. Irvine Lumber Co. (Wash. 1914), 140 Pac. 577. See The Mary (D. C. 1903), 123 Fed. 609, defining sack rafts. 1552. Navigable rivers within public lands to be public highways.-All navigable rivers, within the territory occupied by the public lands, shall remain and be deemed public highways; and, in all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both. R. S. 2476. 1553. Regulation of the use of navigable waters. That it shall be the duty of the Secretary of War to prescribe such regulations for the use, administration, and navigation of the navigable waters of the United States as in his judgment the public necessity may require for the protection of life and property, or of operations of the United States in channel improvement, covering all matters not specifically delegated by law to some other executive department. Such regulations shall be posted, in conspicuous and appropriate places, for the information of the public; and every person and every corporation which shall violate such regulations shall be deemed guilty of a misdemeanor and, on conviction thereof in any district court of the United States within whose territorial jurisdiction such offense may have been committed, shall be punished by a fine not exceeding $500, or by imprisonment (in the case of a natural person) not exceeding six months, in the discretion of the court. Sec. 4, act of Aug. 18, 1894 (28 Stat. 362), as amended by sec. 7, act of Aug. 8, 1917 (40 Stat. 266). That any regulations heretofore or hereafter prescribed by the Secretary of War in pursuance of the fourth and fifth sections of the river and harbor Act of August eighteenth, eighteen hundred and ninety-four, and any regulations hereafter prescribed in pursuance of the aforesaid section four as amended by section eleven of this Act, may be enforced as provided in section seventeen of the river and harbor Act of March third, eighteen hundred and ninety-nine, the provisions whereof are hereby made applicable to the said regulations. Sec. 6, act of June 13, 1902 (32 Stat. 374). That the operation of any navigation facilities which may be constructed as a part of or in connection with any dam or diversion structure built under the provisions of this Act, whether at the expense of a licensee hereunder or of the United States, shall at all times be controlled by such reasonable rules and regulations in the interest of navigation, including the control of the level of the pool caused by such dam or diversion structure as may be made from time to time by the Secretary of War. Such rules and regulations may include the maintenance and operation by such Heensee at its own expense of such lights and signals as may be directed by the Secretary of War, and such fishways as may be prescribed by the Secretary of Commerce; and for willful failure to comply with any such rule or regulation such licensee shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished as provided in section 25 hereof. Sec. 18, act of June 10, 1920 (41 Stat. 1073). The consent of Congress was given to the construction of a ship canal along the Government right of way connecting the waters of Puget Sound with Lake Washington, said canal, when completed, to be turned over to the United States, by act of June 11, 1906 (34 Stat. 232). Provisions for the acquisition of lands, etc., between the present Saint Marys Falls Ship Canal and the international boundary line at Sault Sainte Marie, Mich., for purposes of navigation, etc., of said waters, etc., were made by sec. 11, act of Mar. 3, 1909 (35 Stat. 820). Provisions for conservation of the right to the flow of water and riparian, water power, and other rights in the Saint Marys River, for purposes of navigation and incidentally for development of the water power, were added, by sec. 12, act of Mar. 3, 1909, to provisions of sec. 1, act of June 13, 1902 (32 Stat. 361; 35 Stat. 821). Sec. 5, act of Aug. 18, 1894, mentioned in this section, authorizing the Secretary of War to prescribe regulations for drawbridges over navigable waters, and prescribing a penalty for violation thereof, is set forth 1571, post. Sec. 17, act of Mar. 3, 1899, also mentioned in this section, prescribed the duties of the Department of Justice in enforcing regulations relating to navigable waters, authorized by several sections of said act (30 Stat. 1153). Notes of Decisions. Validity of statute.-This section is not invalid as a delegation of legislative power. US. v. Ormsbee (D. C. 1896), 74 Fed. 207; US e. Moody (D. C. 1998), 164 Fed. 269. Prohibited uses of canals of United States. Regulations made pursuant to this section have the force of law, so that persons violating the same by drawing off water from a canal are subject to criminal punishment under the act. C. S. v. Ormsbee (D C. 1896), 74 Fed. 207. This section impliedly forbids the use of canals owned by the United States, under penalty of criminal prosecution, except in compliance with rules and regulations made by the Secretary of War. U. S. v. Moody (D. C. 1998), 164 Fed. 269. It is unnecessary to set out regulations made by an executive department in pursuance of authority delegated by Congress in an indictment for their violation or to specify the particular rule violated. Id Control and supervision by Secretary of War.--The control and supervision of the navigable waters of the United States is placed in the Secretary of War. (1807) 21 Op. Atty. Gen. 318. Navigability in general. A stream running into the sea, and in which the tide ebbs and flows, is "navigable water." U. 8. v. President, etc., of Jamaica & R. Turnpike Road (C. C. 1910), 183 Fed. 598; decree reversed (C. C. A. 1913), 204 Fed. 759; [C. S. p. 12152]. 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 . 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. 330. 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 III. 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 navigable 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 continued and remains so; and whenever, from any natural or other cause its practical utility as a means of transportation has been permanently destroyed, it should cease to be classed among those waters that are charged with a public use. Harrison v. Fite (1906), 148 Fed. 781, 78 C. C. A. 447. 1554. Regulations for the use of navigable waters near target practice. That in the interest of the national defense, and for the better protection of life and property on said waters, the Secretary of War is hereby authorized and empowered to prescribe such regulations as he may deem best for the use and navigation of any portion or area of the navigable waters of the United States or waters under the jurisdiction of the United States endangered or likely to be endangered by Coast Artillery fire in target practice or otherwise, or by the proving operations of the Government ordnance proving grounds at Sandy Hook, New Jersey, or at any Government ordnance proving ground that may be established elsewhere on or near such waters, and of any portion or area of said waters occupied by submarine mines, mine fields, submarine cables, or other material and accessories pertaining to seacoast fortifications, or by any plant or facility engaged in the execution of any public project of river and harbor improvement; and the said Secretary shall have like power to regulate the transportation of explosives upon any of said waters: Sec. 1, chap. XIX, act of July 9, 1918 (40 Stat. 892). That the regulations made the Secretary of War pursuant to this Chapter shall be posted in conspicuous and appropriate places, designated by him, for the information of the public; and every person who and every corporation which shall willfully violate any regulations made by the said Secretary pursuant to this Chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof in any court of competent jurisdiction shall be punished by a fine not exceeding $500, or by imprisonment (in the case of a natural person) not exceeding six months, in the discretion of the court. Sec. 3, chap. XIX, act of July 9, 1918 (40 Stat. 893). the authority 1555. Protection of the food fishing industry.— hereby conferred shall be so exercised as not unreasonably to interfere with or restrict the food fishing industry, and the regulations prescribed in pursuance hereof shall provide for the use of such waters by food fishermen operating under permits granted by the War Department. Sec. 1, chap. XIX, act of July 9, 1918 (40 Stat. 892), making appropriations for the support of the Army. 1556. Vessels employed to regulate the use of waters near target practice.That to enforce the regulations prescribed pursuant to this chapter, the Secretary of War may detail any public vessel in the service of the War Department, or, upon the request of the Secretary of War, the head of any other department may enforce, and the head of any such department is hereby authorized to enforce, such regulations by mean of any public vessel of such department. Sec. 2, chap. XIX, act of July 9, 1918 (49 Stat. 893), making appropriations for the support of the Army. 1557. Obstructions in navigable channels.-That it shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft; or to voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels; or to float loose timber and logs, or to float what is known as sack rafts of timber and logs in streams or channels actually navigated by steamboats in such manner as to obstruct, impede, or endanger navigation, And whenever a vessel, raft, or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful; and it shall be the duty of the owner of such sunken craft to commence the immediate removal of the same, and prosecute such removal diligently, and failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as hereinafter provided for. Sec. 15, act of March 3, 1899 (30 Stat. 1152). Notes of Decisions. 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 prohibition. 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 |