State ex rel. Cates v. West Tennessee Land Co.

127 Tenn. 575

• Court: Tennessee Supreme Court
• Decided: April 15, 1913
• Status: Published

Opinions

Mr. Justice Lansden

delivered the opinion of the Court.

In the view which we take of this case, it is not necessary to, make an extended statement of the pleadings, or to discuss the questions presented upon the demurrer to the bill. The only question for determination is whether Reelfoot Lake is a navigable body of water in the technical legal sense of that term. If it is, we think it is beyond dispute upon the authorities that neither the waters nor the lands underlying them are. capable ' of private ownership. If it is not, and is navigable only in the common or ordinary acceptation of the term, then both the waters and the lands underlying them are -capable of private ownership., and belong to the defendants. This one question of the navigability of the lake :is inclusive of all questions made upon the appeal, and (determines the entire controversy.

? The lake was formed by an earthquake in 1810. The result of the earthquake was to lower the lands upon which the waters of the lake rest several feet below the surrounding lands. The submergence of the land carried down the forest timber growing upon it,, and these [timbers and their remains are still in the lake. The I lake is from two to seven miles wide and about fifteen ( miles long, with .an average depth of about seven feet, except at Beaver Dam and Brewer’s Bar, and at and near the shore lines. At places along the shore lines, and probably along their greater distance, the water is only a few inches deep for several, yards out. into the, lake. The shallow water along the shores and in the lake is filled with vegetation natural to wet lands in this climate. The water at its ordinary stage at Brewer’s Bar and Beaver Dam is from a few inches to two feet in depth. These shoals are from 200 to 300 yards wide. There are numerous deep pools of water in the lake, ranging in depth from seven feet to more than twenty feet; but they have no continuous open connection with the other waters of the lake. They are surrounded by trees, which project in many instances above the water, but many of them have rotted off at the water’s surface; but the stumps of the trees remain submerged in the water of the lake.

Upper Blue Basin, in the northern portion of the lake, is about two miles long, with an average width of something like 400 yards, and an average depth of probably ten feet, and is open and free of obstructions. It is surrounded, however, with timber and stumps. The part of the lake south of Upper Blue Basin is five to seven miles wide and several miles long. It is separated from Upper Blue Basin by Brewer’s Bar, which makes a strip of shallow water only a few inches to two feet deep and probably 200 yards wide. There are a number of other smaller basins, practically free from stumps and timber, in the southern portion of the lake; but, like the other bodies of water, they have no open connection with each other or with the main body of water on account of the stumps and timber. Most of the snags standing in the lake are bare of limbs; but many dead snags still stand at a height of thirty to forty feet above the surface of the water.

Some of the witnesses speak of the general appearance of the lake as that of a harbor from which the masts of vessels project. The area of the lake is probably sixty square miles and its average depth is probably seven feet, so we think it undoubtedly true that the lake contains sufficient volume of water, and is of sufficient size, to make it navigable in the legal sense, but that it is not suitable in its present condition for purposes of navigation on account of the existence of the stumps and trees which form obstructions to successful navigation. It is also true that commercial vessels would not be able to reach the shore line at many places on account of the shallowness of the water.

The lalte has both an inlet and an outlet. The outlet flows continually, but is not of sufficient depth to form a navigable connection with the Mississippi river, into which it flows. At present there is a government levee opposite the northern end of the lake, which prevents the waters of the Mississippi at ordinary tide from flowing into the lake. Before this levee was built, the river would overflow into the lake once or twice a year, and thus raise its waters many feet. The surplus waters would remain in the lake until the late spring or summer following.

From 300 to 400 people take fish from the waters of the lake daily and employ in this capacity something like 1,000 small boats, canoes, and batteaux. They take .annually from 1,000,000 to 1,500,000 pounds of fish. Wild fowl are killed upon its waters every- year in large quantities. Its waters are clear and pure, and as a breeding ground for fish, it is probably not excelled anywhere in the world. Before the building- of the levee above mentioned the fish would have free access from the lake to the Mississippi river and from the river to the lake during high water. The public have used the lake and its fowling and fishing privileges at will for more than forty years.

The vessels of commerce plying the Ohio, Cumberland, and Caney Fork rivers range in tonnage capacity from five to 200 tons. A five-ton vessel plying the Cumberland and Caney Fork rivers is fifty-nine feet two inches long, eleven feet nine inches wide, with a hold 1.9 feet deep, and draws twelve inches of water loaded. Another vessel of eleven tons’ capacity is fifty-five feet long, fourteen feet wide, two feet in the hold, and draws ten inches of water light. Steamers on the Obion and Forked Deer rivers are from sixty-five to 100 feet in length, fifteen to twenty feet in breadth, and draw from fifteen to twenty-four inches of water loaded. Steamers of the Cumberland river are 125 to 165 feet in length, and from twenty-two to twenty-nine feet beam, have from 150 to 191 tons’ capacity, and draw eighteen inches light, and four feet four inches loaded. Fifty per cent, of the sailing and steam mercantile vessels of the United States are of less than twenty tons gross capacity,'and not more than twenty-five per cent, exceed 100 tons gross.

In Elder v. Burrus, 6 Hump., 358, the Cumberland river was held to be navigable in the technical legal sense. In that case, the court rejected the common-law definition of a navigable stream, and, while it forbore to lay down a definition of navigability, the Cumberland river was held to be navigable in the strict technical legal sense, according to the civil law. But in Stuart v. Clark, 2 Swan, 9, 58 Am. Dec., 49, the court laid .down the definition of a navigable river which has been uniformly followed by this court ever since. The definition of such a stream according to the civil law was reaffirmed as the rule of this State, and the definition in the text of Mr. Angelí on Water Courses was quoted and adopted. The quotation is as follows:

“Navigable rivers are not merely rivers in which the tide flows and reflows, but rivers capable of being navigated; that is, navigable in the common sense of the term.” In the words of the Digest, a navigable river is e($tatio iturre navigio

The learned judge, speaking for the court, observed that' the only change of the common law effected by the adoption of the rule of the civil law is the substitution of a. new and more appropriate criterion of a navigable river, “and that is, not the flow and reflow of the tide, but simply the fact whether the river, in the ordinary state of the water, is capable of and suited to the usual purposes of navigation. In all other respects, the principles of the common law, regulating and defining the ■respective rights -of the public and. of the riparian proprietors in rivers of whatever character, remain unchanged, and are to be applied by the courts.”

After stating that, under the new test of havigabil-' ity of rivers, the term “navigable” is none the less á word of technical meaning than at common law, as determining the respective rights of the públic and the riparian owners, in reference to the property of the soil, as well as the use of the watercourses, the court laid down the final definition of a navigable body of water in the technical legal sense of the term in its own language as follows:

“We are aware of no less exceptionable criterion than that to be extracted from some of the cases before referred to, namely, a river capable, in the ordihary state; of the water, of navigation, ascending and descending, by sea vessels; that is, such vessels as are employed'in the ordinary purposes of commerce, wli ether foreign or inland, and whether steam or sail vessels.”

The stress which it is now sought to lay upon the use of the words “sea vessels,” so as to limit navigable bodies of water to those which have sufficient depth and capacity to float vessels which navigate the high seas, is not justified by the language of the court in that case. The words themselves are followed by the explicit explanation that they are meant to include such vessels as are employed in the ordinary purposes of commerce, whether foreign or inland, and whether steam or' sail vessels. Inland commerce is not carried on the high and therefore necessarily not carried in sea-going vessels in the sense referred to. The same strict and literal meaning applied to the expression “whether steam or sail vessels” would render a stream nonnavigable if its commerce was borne exclusively by vessels propelled by gasoline or electricity, without reference to the volume of its waters or the width and depth of its channel.

In no case decided by this court has such a restricted definition been given to sea vessels. Indeed, the meaning now attributed to the terms by the learned Chief Justice would render unnavigable both the Cumberland and the Ohio rivers, and probably the Mississippi above Cairo.

I We think, therefore, that it can be reasonably held I that Reelfoot Lake has sufficient capacity, that is, sufficient depth and width and volume of water, so as to make it a navigable stream in the strict technical legal ^sense.

The next question for determination is whether the /presence of the stumps and trees herein described, and ! which- admittedly form a present obstruction to naviga- | tion,- will destroy the character of the lake as a naviga- | ble body of water, so as to make it the subject of private [.ownership.

In Webster v. Harris, 111 Tenn., 692, 69 S. W., 782, 59 L. R. A., 324, it was held by this court that they do.) The facts found by the court in that case are substan-/ tially the same as those stated in this opinion. The test of a navigable body of water was stated to be “whether a stream is inherently in its nature capable of being used for the purpose of commerce,” and that, “in determining the natural capacity of a body of water for navigable purposes, . . . the extent to which it is used for purposes of navigation should be looked to,” and it was said that this “affords the strongest evidence as to its navigability or nonnavigability in either sense.” For this proposition, the court cited Olive v. State, 86 Ala., 88, 5 South., 653, 4 L. R. A., 38; Gould on Waters, sec. 43. It was also said that, in order for a body of water to be navigable, there must be some commerce and navigation upon it which is essentially valuable. Swanson v. Boone Co., 42 Minn., 532, 44 N. W., 986, 7 L. R. A., 674, was cited in support of this proposition. It was also said that its connection or want of connection with other navigable bodies of water is a strong circumstance to be looked to in order to determine its navigability. Willow River Club v. Wade, 100 Wis., 86, 76 N. W., 273, 42 L. R. A., 305, was cited in support of this proposition.

Without undertaking to review the authorities cited in support of the decision in Webster v. Harris, we say that those of them which support the opinion do not represent the great weight of American authority, and. some of them are not applicable. The Alabama court was speaking of a floatable stream. In the case of Swanson v. Boone Co. the Minnesota court was considering the right of the public to navigate the Mississippi river and the rights of certain riparian proprietors in respect thereto, and no question pertinent to the one under consideration here Aras presented in that ease. In our opinion, the test stated in Webster v. Harris does not reach the true definition of a navigable, body of .water.

>• The chief importance of determining whether Reel-root Lake is navigable in the technical legal sense does ¡not concern its use as a public highway for commerce, /but- is in regard to the respective rights -of the public and private person in the use and ownership of its waters and the lands' submerged by them. It is primarily a question of dominion and ownership, rather than one of commerce and travel. The right of the public to use its waters as a highway for commerce is precisely the same, whether the lake be navigable in the technical legal sense or Avhether it be navigable only in the common or ordinary sense. The distinguishing difference between the two classes of streams is capacity; that is, depth, width, volume. The legal effect of this difference is upon the title, the right of soil in waters and the lands under them, and the fisheries. If a given body of Avater falls within-'one class, it belongs to the public; if in the other, it may be privately owned.

The real nature in law of navigable bodies of water Is admirably stated by the supreme court of the United States in Shively v. Bowlby, 152 U. S., 1, 14 Sup. Ct., 548, 38 L. Ed., 335. The court' said:

“Such waters [navigable streams] and the lands they cover, either at all time®, or at least when the tide is in, are incapable of ordinary and private occupation, cultivation, and improvement, and their natural and primary uses are public in tbeir nature, for' highways of ^navigation and commerce, domestic and foreign, and for the purpose of fishing by dll the king’s-subjects. Therefore the title, jus privatum, in such lands, as of waste and unoccupied lands, belongs to the king as the sovereign; and the dominion thereof, jus publicum, is vested in him as the representative of the nation and for the public benefit.”

And' in Stuart v. Clark this court said:

“If the river be a public navigable stream, in the legal sense, the soil covered by the water, as well as the use of the stream, belongs to the public. But if it be not navigable in the. legal meaning of the term — as is the case in England as to all streams above the flow of the tide — the ownership of the bed of the stream is in the riparian proprietors, but the public have an easement therein, for the purposes of transportation and commercial intercourse.” Stuart v. Clark, 2 Swan, 16, 58 Am. Dec., 49.

But the public have rights in streams which are technically navigable, other than the right of navigation, such as the ownership of the waters and the lands under them, their fisheries, hunting privileges, and every;, thing of value incident to a right of soil; and these rights exist concurrently, and are taken all together to express; the .public proprietorship of public waters. And so,, if: a body of water have sufficient capacity to be legally navigable, this determines its title, jus" privatum, whether it is being actually used as a highway or not; aR<3, having such capacity, it cannot be assumed it will never be used for navigation, because it cannot be known wnat time and the progress of the world may bring.

Considered in this view, the presence of stumps and trees in the water, although they may prevent present navigation, cannot affect its capacity nor change its classification from that of a navigable body of water in the legal sense to that of one navigable only in the ordinary sense. Indeed, the only interest which the public has in the latter class of streams is a right of easement of way over and through their waters and the presence of stumps and trees in the water could more properly be said to destroy its capacity for navigation in that sense than in the technical legal sense.

What we believe to be a great weight of authority is in accord with this view. In State v. Pacific Guano Co., 22 S. C., 50, it was said that, to be navigable, a stream should have sufficient depth and width of water to float [Useful commerce. This case was followed approvingly in Heyward v. Farmers’ Mining Co., 42 S. C., 138, 19 S. E., 963, 20 S. E., 64, 28 L. R. A., 42, 46 Am. St. Rep., 702. In that case it was stated that the “test is navigable capacity, and not that the surroundings should bes-such that it may be useful for the purpose of commerce.” It was further said that a stream may not be useful for commerce at one time, and yet circumstances may make it so. “There are certain navigable streams in our State,” said the court, “which are very valuable on account of their phosphate deposits. If the question of their navigability had come before the courts for adjudication before the phosphate rock in them was discovered, and the test laid down by the circuit judge had been applied, it would have resulted in the State being deprived of this valuable source of revenue, because they were not actually used at that time.”

The court also repudiated the test of connections with other highways, and stated that such a test had only been applied in cases where the question was whether a stream was a navigable water of the United States.

Heyward v. Farmers’ Mining Company, supra, is supported by what appears to us to be a very great weight of authority. The Daniel Ball, 77 U. S. (10 Wall.), 557, 19 L. Ed., 999; The Montello, 87 U. S., 430, 22 L. Ed., 391; Moore v. Sanborne, 2 Mich., 519, 59 Am. Dec., 209; Brown v. Chadbourne, 31 Me., 9, 50 Am. Dec., 646; Hickok v. Hine, 23 Ohio St., 523, 13 Am. Rep., 255; Diedrich v. Northwestern Union R. Co., 42 Wis., 248, 24 Am. Rep., 399; Attorney-General v. Woods, 108 Mass., 436, 11 Am. Rep., 380; Rowe v. Granite Bridge Corp., 21 Pick. (Mass.), 344; Little Rock, M. R. & T. R. Co. v. Brooks, 39 Ark., 403, 43 Am. Rep., 277, in which it is held that a river made useful for commerce by improvements is a navigable river. In The Daniel Ball, supra, the court stated the test of a navigable stream as follows:

“Those rivers must be regarded as public navigable rivers in law which are navigable in fact; and they are1 navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways^ for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water; and they constitute, navigable waters of the United States within the meaning of the acts of congress, -in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.”

In’ The Montello, the court held in substance that if a river is hot of itself a highway for commerce with other States or foreign countries, or does not form such highway by its own 'connection with other waters, and is (Only navigable between different places within the State, ft is not navigable water of the United States, but is a navigable water of the State. We make the following quotation from that case,:

“The learned judge of the court below rested his decision against the navigability of the Fox river below the De Pere rapids chiefly on the ground that there were, before !the river was improved, obstructions to an unbroken-navigation. . . . Apart from this, however,' the rule laid down by the district judge as a test Of nav-igrtlOitJweannot be adopted, for it would exclude many of '^'>jgá§at rivers of -the country, which are so interrupted by rapids as to require artificial means to enable them- to be navigated without break." Indeed:'theré are but few of our fresh water rivers which did not originally present serious obstructions to an uninterrupted navigation. In some cases, like the Pox river, they may be so great while they last as to prevent the use of the best instrumentalities for carrying' on commerce; but the vital and essential point is whether the natural navigation of the river is such that it affords a channel for useful commerce. If this be so, the river is navigable in fact, although its navigation may be encompassed with difficulties by reason of natural barriers, such as rapids and sandbars.”

In Moore v. Sanborne, supra, it was said:

“In this country the public right cannot depend upon custom, or upon general use; and we accordingly find that in nearly all the States this rule has been extended so as to be adapted ... to our trade and commerce, and to embrace all streams upon which in their natural state there is capacity for valuable floatage, irrespective of the fact of actual public use, or the extent of such use. Nor . . . can the fact that a floatable stream has not been used by the public, or has only been used by persons following a particular occupation, deprive such stream of its public character. This principle is one of vast importance to the interests of this and all new States.”

In Brown v. Chadbourne, supra, the court said:

“If a stream could be subject to public servitude by long use only, many large rivers in newly settled States, and some in the interior of this State, woüld be altogether under the control and dominion of the owners of their beds, and the community would he deprived of the use of those rivers, which nature has plaiulv declared to be public highways. The true test, therefore, to be applied in such cases, is whether a stream is inherently and in its nature capable of being used for the purposes of commerce, for the floating of vessels, boats, rafts, or logs.”

In Hickok v. Hine, supra, the Supreme Court of Ohio said:

“A river is regarded as navigable which is capable of floating to market the products of the country through which it passes, or upon which commerce may be conducted; and, from the fact of its being so navigable, it becomes in law a public river or highway. The character of a river, as such highway, is not so much determined by the frequency of its use for that purpose as it is by its capacity of being used by the public for purposes of transportation and commerce.”

Many other cases could be cited and quoted from to the same effect, but it is sufficient to say that a reference to the selected cases in the L. R. A. and the American Decisions, American State Reports, and the American and English Annotated Oases will show that, with only an occasional exception, the courts of nearly all of the American States have entertained similar views. It is not possible within the compass of a judicial opinion to comment on all of them, or to make excerpts from them, or even to cite them. ¡We call especial attention to the text of 29 Cyc., page 289, where the rule is stated substantially in the same language as the preceding cases, with the additional observation that this rule is not only the one which prevails in nearly all of the States in this country, but was also the rule of the civil law. Oases are cited in the notes in support of the text from the States of Alabama, Arkansas, California, Florida, Georgia, Illinois, Indiana, Iowa, Michigan, Minnesota, Wisconsin, New York, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina, Vermont, West Virginia, and Wisconsin, the United States Supreme Court, and Canada.

We think the holding of the court in Webster v. Harris is not only contrary to a very great weight of authority in this country, and especially our own cases, but that it is a misconception of the purpose of the law in giving to bodies of water the two classifications of navigable in the technical legal sense, and in the common or ordinary sense. The only purpose of such classification is to establish the respective rights of the public and private individuals in the ownership and use of the waters and the lands under them. We suppose that if a great storm should blow all of the trees along the banks of the Cumberland river into and across its channel, so as to completely obstruct navigation, it would not be contended by any one that its navigable character could be affected by that event. There is no question of navigation to be determined in this case. It is no . answer to say that highways do not exist in forests, and that public roads cannot be conceived of where they are occupied entirely by stumps and trees, because the right to have a-public road through a forest is easily conceivable, and lias often existed in fact. If-the owner of a large forest Should subdivide it for sale, and plat out roads and streets and driveways, and dedicate them to the public, it could not be doubted that purchasers of the subdivisions would be entitled to claim a highway through the forest, although not a tree had been cut.

Inasmuch, therefore, as the lake has capacity for navigation in the technical sense, as laid down in Stuart v. Clark, supra, the rights of the public attach to it, to its use, and to its fisheries, so that it is incapable of private ownership, and the State owns it in trust for all the people, and cannot alienate it away.

What has been said with respect to the rights of the public and the defendants to the waters and the fisheries of the lake would apply equally to all of the grants of land claimed by the defendants; but at this point it should be stated that the defendants claim under grants issued by the State of North Carolina to one Doherty before the lake was formed. At this time the lands were subject'to'grant, and the grants issued by North Carolina were valid at' the date of their issue, and the titles conveyed by them vested in Doherty, the grantee. It is said for the State that these grants were abandoned by their claimants in a partition suit instituted in Williamson county, in which the lands submerged by the lake were not taken into consideration in the division of the. estate between the tenants in common. The bare fact as stated is all that appears. This does not necessarily establish an abandonment. At that time the fisheries were not deemed to be valuable, or at all events Were not being used, and it is entirely possible that the lands submerged by the waters of the lake were left out of the division of the estate of the then owner (Polk) because they were not valuable for agricultural purposes or for their tim-besr, without any intention to abandon them. This would be a reasonable explanation of why they were not included in the lands divided, and' if the conduct of the then owners may be .explained consistently with their continued claim of the land, an abandonment will not be presumed. Phy v. Hatfield, 122 Tenn., 696, 126 S. W., 105, 135 Am. St. Rep., 888, 19 Ann. Cas., 374.

Does the fact that the Doherty grants were submerged by the lake after they were granted, and are now the bed of a navigable stream, deprive the owners of the submerged land of their title to the lands and their right to claim the fisheries in the waters lying over them? Upon this particular question, we have not been cited to any authority directly in point, and we have found none. It would seem, on principle, that the title to the land would be unaffected by the formation of the lake, and its owners would be entitled to its use and its enjoyment as long as they can reasonably identify it and fix its boundaries. It is proven in this case that the Doherty grants can still be identified, and their boundaries are reasonably well established. The waters of the lake are clear, and many of the monuments of boundary can still be identified. Grants Nos. 51, ¡90, and 31 are not totally submerged, and portions of them are still upland and form parts of the shore of the lake. Grant No. 161 it entirely submerged; but its boundaries are located, and it is platted on the map. As these lands were gran table by North Carolina, and were subject to private ownership before the formation of the lake, we are of opinion that the mere fact that they have since become submerged by a body of navigable water does not deprive! the owners of their title to the land as long as they can be reasonably identified. Upon all of the authorities, this title and ownership will carry with it the exclusive right of fishery in the waters over these grants. This, of course, does not include the right of detaining the fish, or preventing their free movement through the waters of the lake, and only includes the exclusive right to take fish in the waters over these grants' as they may be found according to their natural inclination.

A case strongly in point is McCullough v. Wall, 4 Rich. Law, 68, 53 Am. Dec., 715, in which the Suprema Court of South Carolina had under consideration a right' of fishery in the Catawba river. Briefly stated, that was a case of trespass to try title, in which the plaintiff sought to recover a certain rock, called Julius' Rock, situated in the Catawba river and usually covered with' water. It was used by the defendant as a fishing station. The plaintiff claimed the rock as a part of his tract of land v liich lay on the west side of the river, and mainly above the rock. The plaintiff’s title originated in a grant dated J uly 7,1772, which was described as being bounded by the “Catawba river at the great falls.” It appeared that the Catawba river was not navigable at and above the rock at the date of plaintiff’s grant, 1772; but between 1817 and 1830 canals were made around-the shoals above the rock in question by State authority, so that the river was made navigable by means of these canals at the point where it bounded the plaintiff’s tract of land. Upon these facts, the court said:

“The jury have found that the Catawba river, where it is the boundary of the land granted, was not, in Í772, the date of the grant, navigable for boats. If it has since been made navigable, the right of the public to use it as a highway has been asserted; but the right of the grantee and those claiming under him, subject to the rights which the public have in the river as a highway or easement, continues to the soil granted ad filurn aquae, as it vested at the grant. A subsequent improvement of the river, or change of the law relating to the soil of rivers, could not divest the rights of soil which had been granted, further than was required for some public purpose.”

The foregoing authority, however, has no application to grants claimed by the defendant to other portions of the lake, which were issued after the lake was formed. This portion of the lake is governed by the rule stated in Elder v. Burrus and Stuart v. Clark, supra, and was not gran table. The State not having parted with its title to the land before the lake was formed, it thereafter held the waters of the lake and the lands under them in trust for all the people, and could not grant them away. This is not disputed by counsel for either party as we understand their contentions, assuming that the lake is navigable in the technical legal sense; but the opinion is advanced by the learned chief justice that inasmuch as the title to lakes was in the riparian or littoral proprietors at common law, this rule-is still in force in this State, and the title to this body of water should be controlled by the common law. We think this contention is unsound, for the reason that the test of navigability- at common law was the flow and reflow of the tide, and for that reason alone inland lakes were non-navigable, without regard to their depth or their size. This test of navigability is not in force in this State, either as to streams or lakes. This is shown in the very able opinion of Mr. Chief Justice Taney in Genesee Chief v. Fitzhugh, 12 How., 443, 13 L. Ed., 1058. In England, all nontidal lakes were subject to private ownership, and they were so privately owned because they were nontidal. In this State, all bodies of water which have sufficient depth and volume for the carriage of the ordinary craft of useful commerce are navigable. Un der the test adopted in Stuart v. Clark, supra, no reason exists why a distinction should be made between a lake and a stream: The authorities, both English and 'American, have adopted such definition of navitrable waiters as best subserves the uses and interests of the couu-tries in which it is applied, having in view the nature of their streams, and the extent of their commerce, as well as the needs of the people. The ebb and flow of the tide was adopted in England, because their stream® are all short, and but few of them, if any, are navigable in fact above the ebb and flow of the tide. This was. a convenient and useful test of navigability. That test, however, was held not to be in force in this State, as well as the great majority of the American States, for the reason that it would deprive the public of the title to and use of some of the largest and most useful streams on the continent. It was to serve the interest of the people that the common-law definition of navigability was abandoned and held not to apply to this State. The same reason and the same public interest requires that the common-law definition of lakes be held not to be in force here.

For the reasons stated, it is our opinion that the complainant is entitled to a decree establishing its title in trust for all the people to all that portion of the lake, its lisheries and fowling privileges, lying outside of, and not over and above, the grants issued by the State oí North Carolina to Doherty. As to those grants, the bill will be dismissed. The costs of the case will be equally divided.