Forest and Stream. 



A Weekly Journal of the Rod and Gun. 



NEW YORK, NOVEMBER 22, 1883. 



CORRESPONDENCE. 



The Forest and Stream is the recognized medium of entertain- 

 uieut, instruction and information between American sportsmen. 

 Communications upon the subjects to which its pages are aevoted are 

 respectfully invited. Anonymous communications will not be re- 

 garded. No name will be published except with writer's consent. 

 The Editors are not responsible for the views of correspondents. 



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CONTENTS. 



EDITORIAL. 



Navigable Waters and Shore 

 Rights. 

 Thi: Sioutsman Tourist. 



Fall o" the Year. 



From Alamos to Sententrlon, 



Reminiscences of Colorado. 

 Natural Bistorts-. 



An Amateur Taxidermist. 



Sokes about Reptiles. 



:' ' '""" .'I -.Hi 



Work of the Fish Commission. 

 Deer— Larks— Trout. 

 Game Bao and Gun. 

 The First Turn with the Grouse. 

 Longevity of Sportsmen. 

 The Old Settlers. 

 Canvas '.wk ami 'Bob White." 

 Seed of Nalional L-gislation. 



n:i: ; ' i : . ! i: ' 



Our Detroit Letter. 

 Camp-Fire Flickering.?. 

 New Publications. 



'•Sport witli Gun and Rod." 



A Book on Fox Hunting. 

 Sea and River Fishing. 



Among tn.- Iowa Lakes. 



Salmon Fishing on Loeli Tay. 



Reel Plates and Seats. 



Trouting in the Rockies. 



FiSHCt'LTURE. 



The Columbia Dam Fishway. 



Fishcultub e. 



The Iowa Commission. 

 The Kennel. 



Eastern Field Trials. 



After the Fox in Texas Forests. 



Oue Red Letter Day. 



New Orleans Dog Show. 



Kennel Notes. 

 Rifle and Trap Shooting. 



Range and Gallery. 



The Trap. 



Clay-Pigeon Tournament. 



Clay-Pigeon Tournament Rules. 

 Canoeing. 



The Log Book. 



Canoeing in the Northwest, 



The Chart Locker. 



The Galley Fire. 



Canoe Signals. 



in America. 



Experiences Aboard Bedouin. 



A Clown on Himself. 



The First American Auxiliary. 



Splitting Hairs. 



Yachting at Detroit. 



Measurement Quacks and the N. 



Y. t. C. 

 Those Yarns about Open Boats. 



: rii s on the Lakes. 

 List of Winning Yachts, 1883. 

 Answers to Correspondents. 



NAVIGABLE WATERS AND SHORE RIGHTS. 



Editor Forest and Stream: 



Can private rights for hunting and fishing purposes extend over 

 public and navigable waters? 



The best locations and grounds along the Atlantic seaboard and the 

 great lake shores, for shooting wildfowl, are rapidly becoming pri- 

 vate property. Now what authority have these owners of points and 

 shore lines to prevent a hunter from shooting from a boat-a yacht- 

 wherever the boat or yacht will float'/ Does the Government ever 

 permit navigable waters f»r any purpose to become private property? 

 An.', what Is the legal definition of navigable waters? 



A show time since an attempt was made by private parties to ac- 

 quire title from the Government of the valuable sportiug grounds in 

 ami around St. Clair lake and river. The scheme wa= unmasked 

 und defeated by prompt action of some of the best sportsmen of 

 Michigan. In discussion with a friend. I claimed that no title could 

 be acquired from the Government that would bar one from shooting 

 or fishing from a boat, provided the sportsman did not land. Was I 

 right? * * * 



In considering the questions raised by our correspondent 

 it. is of the first importance to determine the ownership of 

 lands under water. By the principles of international law, 

 which is auother name for the usage of nations, the territory 

 of a State extends not only to all its ports, hays and such 

 parts of the sea as are inclosed by its headlands, but also to 

 tin- distance of a marine league from all its shores. Within 

 these limits the properly of the State is absolute. It has 

 been suggested by high authority that the United States 

 would be justified in attaching even a greater portion of the 

 sea to its coasts. 



According to the English common law of riparian rights, 

 which, though not fully adopted in the United States, has 

 guided most of our litigation, the State holds the land under 

 all of its tide-waters, that is the sea. arms of the sea, and 

 rivers where the tide ebbs and flows. Landowners along 

 these waters own to the high-water mark, while the shore, 

 which is the space between high-watei mark and low-water 

 mark, is the property of the State. Along rivers above the 

 flow of the tide and upon the banks of streams and ponds, 

 riparian owners own to the fliim aqua, or middle of the 

 water, and if one person owns land on both sides of the water 

 the entire river bed is his. The public, however, have a 

 right to navigate and take, fish from all public or tide-waters, 

 including the taking of shell-fish from the shore. Even in 

 those waters without flow of the tide, if they are useful for 

 transporting boats and rafts, the public has an easement as 

 in a highway of a right of passing to and fro. 



It is not easy to define navigable waters. The common 

 law applied the word navigable to tide waters only, terming 

 all others unnavigable. Our courts have never entirely ac- 



cepted the flow of the tide as a criterion of navigability. The 

 decisions of the different States are not in harmony on this 

 point, The large rivers of Pennsylvania are regarded as 

 navigable, and the ownership of the river bed is in the 

 State, while the courts of Mississippi discard entirely the 

 idea that because a river is useful as a means of transporta- 

 tion, it is therefore navigable iu the common law sense of 

 being public. The Chancellor of New York used the words 

 "boatable" and "navigable" synonymously, and thus applies 

 them to the waters of the Hudson and Mohawk rivers, and 

 an associate justice stated that "the rivers in England above 

 tide, in point of fact are not navigable except for small craft; 

 reasons, therefore, exist in that island for the common law 

 rule, which have no existence in this country. It is con- 

 trary to fact to assert that our immense fresh-water rivers 

 are not navigable, and it is matter of just exaltation, as well 

 as benefit to the country, that in the United States we have 

 rivers which above tide are navigable to a greater extent 

 than would be the circumnavigation of the United King- 

 doms of Great Britain and Ireland. It is therefore prepos- 

 terous to contend that the limited doctrines of the common 

 law are applicable to the Mississippi, Ohio, Susquehannah, 

 Niagara and St. Lawrence. If applicable, the owners of 

 land on these streams have a right to go to the center of the 

 rivers, and Grand Island in the Niagara, with 18,000 acres, 

 would belong to the owners of the shore." 



An eminent author has collected and examined the multi- 

 tude of decisions of the various States with this result: 



• i'hough it would be impossible to reconcile the rulings 

 of the various courts in this country upon the question, 

 What is a navigable stream? it may be useful to give the 

 result of some of these, in order to see in what respect they 

 differ. It seems to be conceded by all, that streams in which 

 the tide ebbs and flows are what are known to the common 

 law as navigable; and further, as will be stated hereafter, 

 land bounding upon such streams extends only to the line 

 of the high-water mark. But some of the courts regard the 

 large rivers in this country above tide-water as navigable, 

 and carry the line of land bounding upon them to low- 

 water mark. The subject is very ably and learnedly 

 discussed by the courts of Mississippi, who make 

 what seem to be the true and proper distinction 

 between public and navigable streams. They show that it 

 does not depend upon the capacity for navigation by boats 

 or other craft, but is borrowed from the law of nations. By 

 this, tidal waters are public highways for all nations, and 

 therefore the State can only own or exercise control over 

 them ; whereas intni-territorial streams are subject to State 

 jurisdiction as to being navigated; and it is competent for 

 the State to grant the soil under these rivers, subject to a 

 public use of the waters for purposes of traveling, and carry- 

 ins on trade. In that way the ownership of the soil may be 

 in the riparian proprietors, subject to the easement on the 

 part of the public of passing in boats, rafts, etc., upon its 

 waters. The courts examine critically the decisions of the 

 various courts, and come to the conclusion, that whoever 

 owns lands bounding upon such streams owns the soil to the 

 filum aqua [middle of the stream], subject to the right of 

 navigating its waters by the public. The large rivers in 

 Pennsylvania are held to be navigable, and the bed of the 

 stream belongs to the State. If land is bounded by such 

 rivers, the line is that of low-water mark; but it is subject to 

 the right in the public to pass over the space between high 

 and low water marks, in boats and for fishing. 

 Islands in such rivers belong to the State. Low water 

 means ordinary low water; so that if, at veiy low water 

 there is no flow between the bank and the supposed island, 

 it would not make it a part of the mainland if at the ordi- 

 nary state of the stream the water flows between it and the 

 bank. The same rule applies iu Indiana in respect to the 

 Ohio River. In Illinois the Ohio is a navigable river and a. 

 public highway, but persons using it as such have no right 

 to land on or to make use of the shore above the line of low 

 water. The owner of the land between high and low water 

 may erect and maintain a wharf thereon und charge any- 

 one for using it. The ownership of the bed of the stream 

 to the jilum aqua, seems to be conceded to the riparian owner, 

 but subject to the use of the river as a highway by the 

 public. In Kentucky, the riparian owner of lands bounded 

 by the Ohio owns to the thread of the stream, subject to its 

 being used as a highway. In Michigan, if the bed of the 

 stream belongs, as in case of navigable streams, to the State, 

 riparian owners may not extend wharves in front of their 

 lands; otherwise, though the stream be a public way, they 

 may erect such wharves, if they do not thereby unreason- 

 ably impede the passage of water-borne craft. 

 The courts in New Brunswick recognize the above distinc- 



tion between navigable and public streams, and the owner- 

 ship of the soil under them by the riparian proprietors. In 

 Wisconsin the courts hold Rock River a navigable stream, 

 and excepted, as such, from the mill laws ; but they evidently 

 do not give it the incidents of a navigable as distinguished 

 from a public stream, inasmuch as they hold that the owner 

 ship of the soil under any of her rivers is not affected by its 

 being declared navigable. 



In this distinction, as to the rights of riparian owners, 

 between a public and a navigable stream, the courts of 

 Alabama, Ohio and Maine coincide, while those of Maine 

 hold that one is liable to indictment, who stops the 

 navigation of one of these public streams. Whereas 

 Davies, J., in a very elaborate opinion, maintains that 

 the Mohawk is a navigable stream, like all the large rivers 

 in New York; that the State owns the bed of these, that 

 land bounding upon them extends only to the Hue of low 

 water, and that islands formed in the stream belong to the 

 State. The courts of Pennsylvania adopt the same rule in 

 respect to the Monongahela River and other large rivers in 

 the State, the bed of the river to the low- water mark belong- 

 ing to the State. They trace this doctrine to the Roman law 

 which gives the bed of all perennial streams to the purine, 

 ignoring the English common law on the subject, The law 

 of Pennsylvania, in making the low-water mark of such 

 streams the boundary of the riparian owners, is adopted in 

 North Caiolina and Tennessee." 



The right of Parliament in England and of the State Legis- 

 latures in this country, where unrestricted by constitutional 

 restraints, to abridge the public rights in waters below low- 

 water mark in favor of individuals or corporations, is estab- 

 lished beyond possibility of dispute. The same is true of 

 land between high-water mark and low-water mark wherever 

 the shore is, as by the common law it is, the property of the 

 State. In the exercise of its power to regulate fisheries in 

 its public waters, the State may exclude its own citizens and 

 citizens of other States from taking fish there. 



It has been held in Maryland that the State may grant 

 the exclusive right of planting oysters in public waters. A 

 private right to dig shell-fish along the shore has been re- 

 commended in England and Connecticut, An English de- 

 cision is to the effect that while the right, to take seaweed be- 

 low low- water mark belongs to the public, it may be acquired 

 by an individual through prescription or by a grant. New- 

 York decisions have conceded that a person may have an ex- 

 clusive right of fishing even in arms of the sea and other 

 tide-waters. The courts and Legislature of Pennsylvania 

 have acknowledged an exclusive right of fishing in riparian 

 proprietors on the banks of the Delaware River down to low 

 water, as a private easement existing by grant ot prescrip- 

 tion. Massachusetts holds the right of fishing in all its rivers 

 subject to legislative control. So the Maine Legislature is 

 free to appropriate and regulate fisheries in tide-waters, 

 which would be otherwise public. 



Chancellor Kent states that the shore below ordinary high- 

 water mark may become, by grant or prescription, private 

 property. It has been repeatedly held both in England and 

 this country that there is a property in living game unre- 

 claimed arising ration* soli, or from the ownership of the 

 soil, and that that property consists of at least the exclusive 

 right of the landowner to take the game which comes upon his 

 land while it is there. As the land under public waters be- 

 longs to the State it would seem to follow that this property 

 in game therein is vested in the State as an incident 

 to its ownership, and the State could, therefore, 

 make private grants of the right to take such game. 

 The State has the additional right, as one of its police 

 powers, to regulate the taking of game throughout its terri- 

 tory, on private as well as public lands and waters. It may 

 exclude all killing of game, or restrict it to certain period* 

 of the year. Familiar examples of private and exclusive 

 grants of this kind are those to the Hudson's Bay Company, 

 and of the Alaska seal fisheries. As the right of landowners 

 adjoining public waters to take game or fish does not extend 

 beyond the boundaries of their land, unless specially ex- 

 tended by grant or prescription, their rights in game as 

 against the public, will generally be found to be co-exten- 

 sive with their proprietorship in the soil. 



Cheap Guns Again.— Through inadvertence and tem- 

 porary lack of supervision an advertisement was permitted 

 to appear in our last issue which, under ordinary circum- 

 stances, would not have been admitted to this journal. We 

 may also explain that the cunningly worded footnote at- 

 tached to the advertisement in question was a part of the 

 electrotype block, and should not be taken in any sense as 

 our indorsement of the gun. 



