6 Cal. 443 | Cal. | 1856
Mr. Chief Justice Murray and Mr. Justice Terry concurred.
A river which is not within the ebb and flow of the tides, may be, notwithstanding, a navigable stream in two events; first, when it is of sufficient depth and width to float vessels, boats, or other water-craft used in the transportation of freight or passengers, or both, and this has been extended to its capacity to float rafts of lumber. To go beyond this, and attribute navigable properties to a stream which can only float a log, is carrying the doctrine entirely too far, and is turning a rule which was intended to protect the public, into an instrument of serious detriment to individuals, if not of actual private oppression. The important uses to which the waters of non-navigable streams are constantly applied, would have no security or certainty under such a stretch of construction. Dams for the erection of mills, manufactories, canals, for the purpose of irrigation, 'supplying mines, or even to subserve navigation itself, would have to give way to the mere claim of the right to float a saw-log, and if a log, why not a plank, or a fishing rod ? The idea of navigation certainly never contemplated such a definition or such results.
The other instance in which a stream is navigable, is when it is expressly declared so by statute.
In regard to the river under consideration, the statute declares it to be navigable up to a point which is below the dam of the plaintiffs. Thus by implication it is declared non-navigable above that place.
The judgment is reversed, and the cause remanded.
