and unsurveyed river, because all the authorities admit that no such result follows where the terms of the grant clearly denote the intention to stop at the edge or margin, or where the grantor has no power to go beyondthese circumstances uniting in all conveyances made by the United States. As no law exists providing for the sale of unsurveyed land, the authority to transfer the title to the bed of a meandered river is altogether wanting; and as such bed cannot pass by a direct transfer, nor as incident or appurtenant to a grant of lands on the margin, it is not understood by what principle the grantee of the bank could hold to the middle of the stream. The body of water, in a case recently decided by the United States Commissioner of Lands, is more correctly called a port, or harbor, of Lake Michigan, and appears to be entitled to be considered such, from the fact that it has an actual head where the current of the river is lost in the still waters of the lake, from its depth and from participating in the changes occurring in the waters of Lake Michigan, and in that case grants of land on its borders extend only to the water's edge. If, therefore, the premises in controversy at the time of the survey of the adjacent lands actually constituted the head of the lake, the maxim of “ad medium filum aqua" has no application to grants of land on its banks. This is a point too well settled to render it necessary to enlarge upon it by discussion. See Angell on Water Courses, p. 40; Waterman vs. Johnson, 13 Pick., p. 261; Canal Commissioners vs. People, 5 Wend., p. 423; Kent's Com., Vol. 3, p. 536. The cases of Middleton vs. Pritchard, 3 Scammon's Illinois Rep., p. 519, and Morgan & Harrison vs. Reading, 3 S. M. & M., Miss. Rep., p. 366, in which it was decided that riparian proprietors on the Mississippi own to the middle of that stream, are not in harmony with the established practice of the Government, for ever since the organization of the public land system the Executive has claimed and exercised the right of surveying and disposing of islands in the Mississippi and its navigable tributaries, and in all other navigable waters in the public land, in the States and Territories, of sufficient size to justify the expense. See Chief Justice Wilson's separate opinion, herein before mentioned. The doctrine that the beds of the navigable rivers of the United States, above tide water, belong to the riparian proprietors, has been denied by the Courts of New York, Pennsylvania, South Carolina, Alabama, and Iowa. In the New England States, and some of

the Southern and Western States, the common law
theory has been recognized; while in Virginia, Tennes-
see, North Carolina, and Michigan the decisions have
been conflicting. The tendency of the latter decisions,
however, appears to be that the common law rule is
inapplicable to such large navigable rivers as the Mis-
sissippi and many of its tributaries, and the rulings of
the Courts are beginning to coincide more nearly with
the practice and decisions of the land department of
the government.

2349. The following streams and waters are Certain

declared public ways:

So much of a slough as lies between Simon's Canal, in the Town of Alviso, and the Bay of San Francisco. Petaluma River, from its mouth to a distance one third of one mile above Washington street, in the City of Petaluma.

The Sonoma River, between its mouth and a point opposite Fowler's Hotel, in the Town of San Luis. The Napa River, between its mouth and the toll bridge.

The Suisun River, between its mouth and the Town of Suisun embarcadero.

The Sacramento River, between its mouth and the mouth of Middle Creek.

Feather River, between its mouth and a point fifty feet below the bridge crossing Feather River first above the mouth of the Yuba River.

The Yuba River, between its mouth and a point at the mouth of the slough at the foot of F street, in the City of Marysville.

The San Joaquin River, between its mouth and Sycamore Point.

NOTE. The attention of the San Joaquin legislative delegation was called to this subdivision, and Sycamore Point was inserted prior to the passage of the bill for this Code.

The Stockton Slough, between its mouth and the west line of El Dorado street, in Stockton.

54-VOL. I.

streams and waters declared navigable,

and are ways.

public

Same.

The Mokelumne River, between its mouth and the first falls.

The Tuolumne River, between its mouth and Dickinson's Ferry.

Deer Creek, between the house of Peter Lassen and its mouth.

Big River, three miles from its mouth.

Noyo River, three miles from its mouth.
Albion River, three miles from its mouth.

San Antonio Creek, in the County of Alameda, from its mouth to the old embarcadero of San Antonio.

The Arroyo del Medo, in the County of Santa Clara, from its mouth to the upper line of the Town of New Haven.

Mission Creek, in the County of San Francisco.

Islais Creek, in the County of San Francisco, from Franconia Landing, near Bay View Turnpike, to its outlet into the Bay of San Francisco, and thence easterly along the southerly line of Tulare street to the city water front on Massachusetts street, of the width of the channel of said creek.

That portion of Channel street, in the City of San Francisco, and lying east of and between the easterly line of Harrison street and the water front of the Bay of San Francisco, the width thereof to be sixty feet from Harrison to the northeasterly line of Seventh street, and one hundred and forty feet from the northeasterly line of Seventh street to the city front.

That certain creek running through tide land survey numbered sixty-eight, and swamp and overflowed land survey numbered one hundred and forty-five, from its mouth to the head of tide water therein.

San Leandro Creek, from its mouth at San Francisco Bay to Andrews' Landing.

San Lorenzo Creek, from its mouth at San Francisco Bay to Roberts' Landing.

Johnson's Creek, from its mouth at San Francisco Same. Bay to Simpson's Landing.

The north branch of Alameda Creek, from its mouth to Eden Landing.

San Rafael and Corte Madera Creeks, in Marin County, from their mouths as far up as tide water flows therein.

The Neuces Creek, from its mouth at Suisun Bay to a point one half mile above the warehouse of George P. Loucks.

Diablo Creek, from its junction with the Neuces to a point opposite the warehouse of Frank Such, in Contra Costa County.

The Arroyo de San Antonio, or Keys Creek, in Marin County, from its mouth at Tomales Bay to the warehouses on the point at Keys' embarcadero.

All the streams and sloughs emptying into Elk River, and all streams and sloughs south of Eureka, in Humboldt County, which are now or at any time have been used for the purpose of floating logs of timber, and all the sloughs south of Humboldt Point, in said county, that at high water have a depth of two feet of water and wide enough to float and admit a boat carrying five tons or more freight.

Novato Creek, or estuary, in Marin County, from its mouth to Sweetzer's Landing.

Salinas River and Elkhorn Slough, or Estero Viejo, in Monterey County, from its mouth as far up as tide water flows.

NOTE. This section is based upon Stats. 1861, p. 274; 1852, p. 182; 1852, p. 223; 1854, p. 18; 1867-8, p. 356; 1867-8, p. 355; 1867-8, p. 486; 1867-8, p. 680; 1870, p. 721; 1870, p. 663; 1858, p. 127; 1860, p. 126; 1860, p. 159; 1860, p. 257; 1861, p. 49. Technically, the term navigable is applied to the arms of the sea, and to rivers which flow and reflow with the tide, i. e. tide waters the bed or soil of which is the property of the Crown, or in this country, the State.-Bouv. Law Dict., Vol. 2, p. 206, and cases there cited. See "Obstructions," Penal Code Cal., Secs. 611, 612, 613; see, also, note to

Penalty for

felling trees

waters.

2350.

preceding section, giving the rule in this country, and the meaning of the text. In the case of Minturn vs. Lisle, 4 Cal., p. 181, it was held that an Act of the Legislature declaring a river to be a navigable stream prohibits the erection of a dam or bridge on it so as to obstruct its navigation. In the case of American Water Co. vs. Amsden, 6 Cal., p. 446, it was held by the Court that a river not within the ebb and flow of the tides may be a navigable stream in two instances: 1. When it will actually float vessels, etc., in the transportation of freight and passengers; 2. When it is expressly declared navigable by statute; and declaring it navigable to a certain point impliedly holds it nonnavigable above that point.

Stats. 1871-2, p. 307.

An Act declaring a certain creek in Washington
Township, Alameda County, navigable.

[Approved March 8, 1872.]

[Enacting clause.]

SECTION 1. It is hereby declared that a certain creek in the Township of Washington, Alameda County, California, running up to Warm Springs Landing, and connecting the waters of the Bay of San Francisco with said landing, is navigable, and the same shall be kept free and open for the purposes of navigation forever.

SEC. 2. All Acts or parts of Acts in conflict with the provisions of this Act are hereby repealed. SEC. 3. This Act shall take effect immediately.

Whoever cuts or causes to be cut down

into public any tree, so that it falls into any stream or other waters declared by statute to be a public way, and does not remove it therefrom within twenty-four hours thereafter, is liable to a penalty of five dollars for each tree.

NOTE.-See Penal Code Cal., Sec. 588.

ARTICLE II.

NAVIGATION.

SECTION 2360. Steamers meeting.

2361. Landing and receiving passengers by small boat.

2362. Lines used for landing not to be drawn by machinery. 2363. The engine to be stopped.