STONE, J.
The present record raises no question on the sufficiency of the complaint. It is here contended, that the complaint sets forth no sufficient cause of action; and we are asked to affirm the judgment on that account, notwithstanding there may be error in the rulings of the Circuit Court. If there had been a demurrer to the complaint in the court below, it is probable that demurrer would have been sustained. The plaintiff, however, would have been allowed to amend his complaint, and might have obviated the objections to it. Such practice would secure to the plaintiff only his clear legal rights. We can not apply the doctrine of error without injury to such a question as this, unless it clearly appears to us that the defect is such that it can not be remedied. This record does not enable us- to affirm that the complaint can not be so amended, as to state a substantial cause of action.
2. The complaint fails to aver that Dog river is a navigable stream. It also fails to aver that plaintiff, or any one else, was accustomed to use it as such; and the plaintiff fails to aver that he had any timber to float, or transport to market, or otherwise. The sufficiency of the complaint, however, is not before us. What constitutes a navigable stream has been frequently before this court. — See Bullock v. Wilson, 3 Por. 436; Ellis v. Carey, 30 Ala. 725 ; Rhodes v. Otis, 33 Ala. 578. The charge excepted to fairly left the question to the jury, whether or not Dog river is a navigable stream. It [534]*534apparently submitted to the jury the question of the proper construction of the act of congress. If this be the proper reading of the charge, then the Circuit Court erred in that particular. The construction of the act of congress was a question of law, and should have been given by the court, without hypothesis. — 1 Brick. Big. 337, § 25. We suppose, however, that the presiding judge intended, himself, to construe the act of congress. We shall, therefore, treat the charge, as if it instructed the jury, that, notwithstanding they may find that Bog river is a navigable stream, still the defendant railway company had the right, under the act of congress, to erect a bridge across it, without reference to the kina of bridge; and if the defendant, properly, and without unnecessary obstruction, erected the bridge, under the instruction and plan of an engineer, then the verdict should be for the defendant. The substance of this charge, thus construed, is, that the act of congress authorized the railroad company to obstruct the navigation of Bog river, by erecting across it a bridge without a draw, or moveable section.
The act of congress, approved March 2,1868 (15 Statutes at Large, 38), authorized and empowered the defendant corporation “ to construct, build, and maintain bridges, over and across the navigable waters of the United States, on the route of said railroad, between New Orleans and Mobile and declared that “ said railroad, and its bridges aforesaid, when constructed, completed, and in use, in accordance with this act, and the laws of the several States through whose territory the same shall pass, shall be deemed, recognized, and known as lawful structures and a post-road, and are hereby declared as suchwith a proviso that the defendant corporation should construct draw-bridges over East Pascagoula river, the Bay of Biloxi; and the Bay of St. Louis.
In the act incorporating the defendant corporation, approved November 24, 1866 (Pamph. Acts, 16), it is provided as follows: “ Sec. 13. That said corporation are authorized to construct their said railroads, or any part of the same, across, along, or upon any stream of water, water-course, river, bay, iniet, street, highway, turnpike, or canal, which the. route of its said railroad may intersect or touch ; but the said corporation shall preserve the stream, water-course, river, street, highway, turnpike, or canal, thus intersected, touched, or crossed, so as not to impair its usefulness unnecessarily ; or, if temporarily impaired by said corporation, in constructing said roads, the corporation shall restore the same to its former state, or to such a state as not to have unnecessarily or materially impaired its usefulness and convenience to the public.”
[535]*535The act of congress, “ To enable the people of Alabama Territory to form a constitution and State government,” approved March 2, 1819, contains, as one of the propositions submitted by congress to the people of the Alabama Territory, “ for their free acceptance or rejection,” the following : “ That all navigable waters, within the said State, shall forever remain public highways, free to the citizens of said State and of the United States, without any tax, duty, impost, or toll therefor, imposed by the said State.” This proposition was accepted by the people of Alabama Territory, and thus became part of the compact between the United States Government and the people of Alabama. This provision was adopted from the ordinance of 1787. See a discussion of that ordinance, particularly this provision of it, in Hogg v. Zanesville, 5 Ohio, 410; Spooner v. McConnell, 1 McL. 337 ; Cooley’s Const. Lim. 25, and note.
“ The middle prong of Log river,” as it is styled in the bill of exceptions, is shown to have sufficient depth and volume of water for valuable floatage, in extent only a mile and a half above the bridge, which it is alleged obstructed the navigation. The plaintiff in this action is the only person who is shown to have ever used the stream as a highway, or who has any interest in keeping it open as such. It is not shown what length the stream has below the bridge, before it enters into the bay of Mobile. The government surveys were not controlled or checked by its presence, but lines were surveyed across it, making no fractions, if the lands have been sold, as we suppose they have, the bed of the water-course is private property.
In Ellis v. Carey, 30 Ala. 728, speaking of “ Murder Creek,” whose navigability vel non was the subject of inquiry, we used this language: “It” [the stream] “does not appear to be of ‘common or piMic use’ for carriage of boats and lighters. In the survey of the public lands of the United States, it was treated as not navigable; for the government surveyors made no fractional sections upon its margin, but ran the land lines entirely across the stream. In that survey, it was treated as land merely, and as much the subject of sale and private ownership and use, as any other part of the tract of land on its margin.”
In Rhodes v. Otis, 33 Ala. 596, we said: “ In determining the character of a stream, inquiry should be made as to the following points: whether it is fitted for valuable floatage ; whether the public, or only a few individuals, are interested in transportation; whether any great public interests are involved in the use of it for transportation; ... . whether it has been previously used by the people generally, and how [536]*536long it has been so used; whether it was meandered by the government surveys, or included in the surveys.”
In each of the eases from which we have quoted above, this court declared, as matter of law, that, under any view of the evidence before the court, the streams then under discussion were not navigable water-courses.
Mr. Cooley, speaking on this subject (Const. Lim. 590), says : “ The capacity of a stream, which generally appears by the amount, nature, importance, and necessity of the business done upon it, must be the criterion.
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STONE, J.
The present record raises no question on the sufficiency of the complaint. It is here contended, that the complaint sets forth no sufficient cause of action; and we are asked to affirm the judgment on that account, notwithstanding there may be error in the rulings of the Circuit Court. If there had been a demurrer to the complaint in the court below, it is probable that demurrer would have been sustained. The plaintiff, however, would have been allowed to amend his complaint, and might have obviated the objections to it. Such practice would secure to the plaintiff only his clear legal rights. We can not apply the doctrine of error without injury to such a question as this, unless it clearly appears to us that the defect is such that it can not be remedied. This record does not enable us- to affirm that the complaint can not be so amended, as to state a substantial cause of action.
2. The complaint fails to aver that Dog river is a navigable stream. It also fails to aver that plaintiff, or any one else, was accustomed to use it as such; and the plaintiff fails to aver that he had any timber to float, or transport to market, or otherwise. The sufficiency of the complaint, however, is not before us. What constitutes a navigable stream has been frequently before this court. — See Bullock v. Wilson, 3 Por. 436; Ellis v. Carey, 30 Ala. 725 ; Rhodes v. Otis, 33 Ala. 578. The charge excepted to fairly left the question to the jury, whether or not Dog river is a navigable stream. It [534]*534apparently submitted to the jury the question of the proper construction of the act of congress. If this be the proper reading of the charge, then the Circuit Court erred in that particular. The construction of the act of congress was a question of law, and should have been given by the court, without hypothesis. — 1 Brick. Big. 337, § 25. We suppose, however, that the presiding judge intended, himself, to construe the act of congress. We shall, therefore, treat the charge, as if it instructed the jury, that, notwithstanding they may find that Bog river is a navigable stream, still the defendant railway company had the right, under the act of congress, to erect a bridge across it, without reference to the kina of bridge; and if the defendant, properly, and without unnecessary obstruction, erected the bridge, under the instruction and plan of an engineer, then the verdict should be for the defendant. The substance of this charge, thus construed, is, that the act of congress authorized the railroad company to obstruct the navigation of Bog river, by erecting across it a bridge without a draw, or moveable section.
The act of congress, approved March 2,1868 (15 Statutes at Large, 38), authorized and empowered the defendant corporation “ to construct, build, and maintain bridges, over and across the navigable waters of the United States, on the route of said railroad, between New Orleans and Mobile and declared that “ said railroad, and its bridges aforesaid, when constructed, completed, and in use, in accordance with this act, and the laws of the several States through whose territory the same shall pass, shall be deemed, recognized, and known as lawful structures and a post-road, and are hereby declared as suchwith a proviso that the defendant corporation should construct draw-bridges over East Pascagoula river, the Bay of Biloxi; and the Bay of St. Louis.
In the act incorporating the defendant corporation, approved November 24, 1866 (Pamph. Acts, 16), it is provided as follows: “ Sec. 13. That said corporation are authorized to construct their said railroads, or any part of the same, across, along, or upon any stream of water, water-course, river, bay, iniet, street, highway, turnpike, or canal, which the. route of its said railroad may intersect or touch ; but the said corporation shall preserve the stream, water-course, river, street, highway, turnpike, or canal, thus intersected, touched, or crossed, so as not to impair its usefulness unnecessarily ; or, if temporarily impaired by said corporation, in constructing said roads, the corporation shall restore the same to its former state, or to such a state as not to have unnecessarily or materially impaired its usefulness and convenience to the public.”
[535]*535The act of congress, “ To enable the people of Alabama Territory to form a constitution and State government,” approved March 2, 1819, contains, as one of the propositions submitted by congress to the people of the Alabama Territory, “ for their free acceptance or rejection,” the following : “ That all navigable waters, within the said State, shall forever remain public highways, free to the citizens of said State and of the United States, without any tax, duty, impost, or toll therefor, imposed by the said State.” This proposition was accepted by the people of Alabama Territory, and thus became part of the compact between the United States Government and the people of Alabama. This provision was adopted from the ordinance of 1787. See a discussion of that ordinance, particularly this provision of it, in Hogg v. Zanesville, 5 Ohio, 410; Spooner v. McConnell, 1 McL. 337 ; Cooley’s Const. Lim. 25, and note.
“ The middle prong of Log river,” as it is styled in the bill of exceptions, is shown to have sufficient depth and volume of water for valuable floatage, in extent only a mile and a half above the bridge, which it is alleged obstructed the navigation. The plaintiff in this action is the only person who is shown to have ever used the stream as a highway, or who has any interest in keeping it open as such. It is not shown what length the stream has below the bridge, before it enters into the bay of Mobile. The government surveys were not controlled or checked by its presence, but lines were surveyed across it, making no fractions, if the lands have been sold, as we suppose they have, the bed of the water-course is private property.
In Ellis v. Carey, 30 Ala. 728, speaking of “ Murder Creek,” whose navigability vel non was the subject of inquiry, we used this language: “It” [the stream] “does not appear to be of ‘common or piMic use’ for carriage of boats and lighters. In the survey of the public lands of the United States, it was treated as not navigable; for the government surveyors made no fractional sections upon its margin, but ran the land lines entirely across the stream. In that survey, it was treated as land merely, and as much the subject of sale and private ownership and use, as any other part of the tract of land on its margin.”
In Rhodes v. Otis, 33 Ala. 596, we said: “ In determining the character of a stream, inquiry should be made as to the following points: whether it is fitted for valuable floatage ; whether the public, or only a few individuals, are interested in transportation; whether any great public interests are involved in the use of it for transportation; ... . whether it has been previously used by the people generally, and how [536]*536long it has been so used; whether it was meandered by the government surveys, or included in the surveys.”
In each of the eases from which we have quoted above, this court declared, as matter of law, that, under any view of the evidence before the court, the streams then under discussion were not navigable water-courses.
Mr. Cooley, speaking on this subject (Const. Lim. 590), says : “ The capacity of a stream, which generally appears by the amount, nature, importance, and necessity of the business done upon it, must be the criterion. A brook, although it might carry down saw-logs for a few days, during a freshet, is not therefore a public highway. But a stream, upon which and its tributaries saw-logs to an unlimited amount can be floated every spring, and from a period from four to eight weeks, and for the distance of one hundred and fifty miles, • and upon which unquestionably many thousands will be annually transported, for many years to come, if it be legal so to do, has the character of a public stream .for that purpose. So far, the purpose is useful for trade and commerce, and to the interests of the community.”
In the case of Wilson v. Blackbird Creek Marsh Company, 2 Pet. 245, the stream under discussion was very like the one shown in this record, with the exception that its length is not shown. The question was, the right of the State to authorize a private corporation to obstruct it. The court, Oh. J. Marshall delivering the opinion, decided that the State could constitutionally confer such power.
The cases of The Daniel Ball, 10 Wall. 557, and The Moniello, 20 Wall. 430, are valuable discussions of what constitutes a navigable water-course. See, also, Angelí on Highways, 41.
The cases of Pennsylvania v. Wheeling Bridge Co., 18 How. 421, and The Clinton Bridge, 10 Wall. 454, assert that “the power of congress to regulate commerce includes the regulation of intercourse and navigation, and consequently the power to determine what shall or shall not be deemed, in judgment of law, an obstruction of navigation.” In the case cited from 2 Peters, 245, supra, substantially the same power was accorded to the several States, over streams within their borders, in the absence of the exercise by congress of its constitutional power to regulate commerce between the States, &c.
Mr. Cooley in his work on Constitutional Limitations, 592, says: “ The States may authorize the construction of bridges over navigable waters, for railroads, as well as for every other species of highway, notwithstanding they may, to some [537]*537extent, interfere with the right of navigation. If the stream is not one which is subject to the control of congress, the State law permitting the erection can not be questioned on any ground of public inconvenience. The legislature must always have power to determine what public ways are needed, and to what extent the accommodation of travel over one way must yield to the greater necessity for another.”
The entire doctrine of the power of congress, and of State legislatures, to authorize the obstruction of navigable watercourses, is part and parcel of what is known as eminent domain. It is part of the sovereignty, to be exercised or withheld for the public welfare. What will best promote the interests of the public, must, in a great degree, be left to the wisdom and discretion of the legislature. When it is exercised, one right or privilege of the public is taken away, or impaired, that another, considered of greater value, may be conferred and fostered. This power and discretion, within certain bounds, should be, and are, lodged in the sovereign, as parens patrice. Without it, the power of the government for good would be greatly restricted, and it could not keep pace with the wonderful discoveries of the present century. We say nothing at this time of the duty of the government to make compensation, when private property is taken for public use. The bridge is not shown to be on plaintiff’s land, and hence that doctrine has no application to this case.
Three significant facts, we think, show that the general government does not regard the “ middle prong of Dog river” as a navigable stream : first, in the government survey, no deflection of lines, or fractional sections, were made on its borders, but the stream was embraced in the survey, and treated as land; second, congress has not asserted, over this stream, its power to regulate commerce; and, third, while the act of congress, declaring the defendant corporation a post-road, and granting to it the right to construct bridges over the navigable waters crossed or touched by its route, expressly requires the corporation to construct and maintain draw-bridges over East Pascagoula river, the Bay of Biloxi, and the Bay of St. Louis, it makes no mention whatever of Dog river. — Section 15, U. S. Stat. at Large, 38. Inclusio unius est exdusio alterius.
Under the principles above declared, and under the extremest inference that can be drawn from the evidence favorable to appellant, we hold, that the “middle prong of Dog river” is not a navigable stream, in that sense which denies to the legislature of Alabama the power to authorize the erection of a railroad bridge across it, even though, in so [538]*538doing, sncli navigation as the stream affords is entirely destroyed. The charge of the Circuit Court, excepted to, is not technically in accordance with these views; but, in no event, could it work injury to appellant.
The judgment is affirmed.