78 PROBLEMS IN WILD LIFE CONSERVATION 



lowed. 88 The Supreme Court in the Daniel Ball case, re- 

 jected the English doctrine on navigable waters, saying, 89 



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 any 

 test at all of the navigability of waters. . . . Those rivers must 

 be regarded as public navigable rivers in law which 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. 



This is the federal rule and the common test of navi- 

 gability, 90 but in some states the courts have given a broader 

 meaning to the term, as did Judge Mitchell for Minnesota, 

 when he said, 91 



Many, if not most of the meandered lakes of this state are 

 not adapted to, and probably will never be used to any great 

 extent for commercial navigation; . . . however, we are satis- 

 fied that, so long as these lakes are capable of use for boating, 

 even for pleasure, they are navigable, within the reason and 

 spirit of the common law rule. 



Under whatever rule adopted, navigability under the 

 common law, modified in some states by statute or constitu- 

 tion, usually determines the ownership of the land under 

 water and that ownership determines the extent of the right 

 to take fish and wild fowl found in the waters above. 92 

 When land owned in fee simple, however, is suddenly 



s *Fox River Co. v. RR. Commers. of Wis., 274 U. S. 651 (1926). 

 9 10 Wall. 557 (1871). 



90 See also, Rowe v. Granite Bridge Corp., 21 Pick (Mass.) 344 (1838) ; 

 Mutler v. Gallagher, ig Or. 375, 24 Pac. 250 (1890) ; Burroughs v. 

 Whitman, 59 Mich. 279, 26 N. W. 491 (1886). 



91 Lamprey v. State, 52 Minn. 180, 53 N. W. 1139 (1893). 

 **McCready v. Virginia, 94 U. S. 395 (1876). 



