CHAPTER 33

RIVERS, HARBORS, AND WATERWAYS

Prosecution of flood control work, 1899. 1845. Navigable waters; regulations in general.-That it shall be the duty of the Secretary of War to prescribe such regulations for the use, administration, and navigation of the navigable waters of the United States as in his judgment the public necessity may require for the protection of life and property, or of operations of the United States in channel improvement, covering all matters not specifically delegated by law to some other executive department. Such regulations shall be posted, in conspicuous and appropriate places, for the

information of the public; and every person and every corporation which violate such regulations shall be deemed guilty of a misdemeanor and conviction thereof in any district court of the United States within w territorial jurisdiction such offense may have been committed, shall be puni by a fine not exceeding $500, or by imprisonment (in the case of a nai person) not exceeding six months, in the discretion of the court. Sec. 4, a Aug. 18, 1894 (28 Stat. 362), as amended by sec. 7, act of Aug. 8, 1917 (40 4 266); U. S. C. 33: 1.

That any regulations heretofore or hereafter prescribed by the Secretar War in pursuance of the fourth and fifth sections of the River and Harbor of August eighteenth, eighteen hundred and ninety-four, and any regulat hereafter prescribed in pursuance of the aforesaid section four as amended section eleven of this Act, may be enforced as provided in section sevent of the River and Harbor Act of March third, eighteen hundred and ninety-n the provisions whereof are hereby made applicable to the said regulati Sec. 6, act of June 13, 1902 (32 Stat. 374); U. S. C. 33: 1, 499.

Sec. 5, act of Aug. 18, 1894, mentioned in this section, authorizing the Secretary War to prescribe regulations for drawbridges over navigable waters, and prescribin penalty for violation thereof, is set forth 1879, post.

Sec. 17, act of Mar. 3, 1899, also mentioned in this section, prescribed the duties the Department of Justice in enforcing regulations relating to navigable waters, auth ized by several sections of said act (30 Stat. 1153).

Notes of Decisions

Validity of statute.-Paragraph 1 of this section is not invalid as a delegation of legislative power. U. S. v. Ormsbee (D. C. 1896), 74 Fed. 207; U. S. v. Moody (D. C. 1908), 164 Fed. 269.

Prohibited uses of canals of United States. Regulations made pursuant to paragraph 1 of this section have the force of law, so that persons violating the same by drawing off water from a canal are subject to criminal punishment under the act. U. S. v. Ormsbee (D. C. 1896), 74 Fed. 207. Paragraph 1 of this section impliedly forbids the use of canals owned by the United States, under penalty of criminal prosecution, except in compliance with rules and regulations made by the Secretary of War. U. S. v. Moody (D. C. 1908), 164 Fed. 269. It is unnecessary to set out regulations made by an executive department in pursuance of authority delegated by Congress in an indictment for their violation or to specify the particular rule violated.

Id.

Control and supervision by Secretary of War. The control and supervision of the navigable waters of the United States is placed in the Secretary of War. (1897) 21 Op. Atty. Gen. 518.

While the phrase "regulations for the use, administration, and navigation of navigable waters of the United States" is general and inclusive, it is restricted by the phrase "covering all matters not specifi cally delegated by law to some other department." (1922) 33 Op. Atty. Gen. 203.

Navigability in general.-A stream running into the sea, and in which the tide

ebbs and flows, is "navigable wate U. S. v. President, etc., of Jamaica & Turnpike Road (C. C. 1910), 183 Fed. 59 reversed (C. C. A. 1913) 204 Fed. 759.

But tidal channels are navigable in a only when they are navigable in fact i trade and commerce by craft of some kir State v. Pacific Guano Co. (1884), 22 S. 50; rehearing denied (1886), 24 S. C. 5 And the doctrine of the common law as the navigability of waters has no applic tion in this country. Here the ebb a flow of the tide do not constitute the usc test, as in England, or, indeed, any test a all, of the navigability of waters. Th Daniel Ball (1870), 77 U. S. (10 Wall 557.

A river which is navigable in fact i navigable in law. Genessee Chief (1851) 12 How. 443; Diana Shooting Club r. Hust ing (Wis. 1914), 145 N. W. 816.

In order to be a navigable stream It not necessary that the waters shall be deer enough to admit the passage of boats at a portions of the stream. St. Anthony Fal's Water Power Co. v. Board of Water Com missioners of City of St. Paul, Minn. (1897), 168 U. S. 349.

As to navigability, see Charleston & S Ry. Co. v. Johnson (1884), 73 Ga. 306: State v. West Tennessee Land Co. (Tenn. 1913), 158 S. W. 746.

Streams capable of being used for the purpose of carrying boats, passengers, freight, floating logs, timber, wood, or any other product to market are navigable. The

Daniel Ball (1870), 77 U. S. (10 Wall.) 557.

Judicial notice of navigability.-The courts will take notice of the navigability of streams. King v. American Transp. Co. (C. C. 1859), Fed. Cas. No. 7787; Neaderhouser v. State (1867), 28 Ind. 257; Wood r. Fowler (1882), 26 Kan. 682, 40 Am. Rep. 330. But Federal courts can not take judicial notice that a stream is navigable because of an apparently irregular traffic in times of high water, employing Indian canoes and small steamboats and gasoline launches, in face of a declaration by the legislature that such stream is apt navigable. Donnelly v. U. S. (1913), 228 U. S. 708, denying rehearing (1913), 228 U. S. 243. Nor can a court take judicial notice of the character of rivers which are in fact navigable for portions of the year, but their capacity is not historical or traditional. As to geographical and similar facts, not historical and traditional-as here, the capacity of Five Mile Run, in Cattaraugus County, for navigation, etc.-the court will not take judicial notice. Buffalo Pipe Line Co. v. New York, L. E. & W. R. Co. (N. Y. 1880). 10 Abb. N. C., 107. See as to Straight Creek, in Bell County, Hoskins v. Archer (1885), 6 Ky. Law Rep. 671.

Law determining navigabilty.-What shall be deemed a navigable stream within the local rules of property in the bed of a stream is for the determination of the several States. Donnelly v. U. S. (1913), 228 U. S. 243, rehearing denied (1913), 228 U. S. 708.

Presumptions as to navigability.-A stream will not be presumed to be navigable. Leihy v. Ashland Lumber Co. (Wis. 1880), 5 N. W. 471.

That a stream was not meandered by the United States surveyors or their deputies raises the presumption that it is not navigable. Clute v. Briggs (1868), 22 Wis. 607.

A stream neither meandered nor declared navigable by the legislature is prima facie nonnavigable. Allaby . Mauston Electric Service Co. (Wis. 1908), 116 N. W. 4; contra, Sumner Lumber & Shingle Co. v. Pacific Coast Power Co. (Wash. 1913), 131 Pac. 220.

Idaho

Evidence of navigability.-See Northern R. Co. v. Post Falls Lumber Co. (Ida. 1911) 119 Pac. 1098; People v. Economy Light & Power Co. (Ill. 1909) 89 N. E. 760 Holden v. Robinson Mfg. Co. (1876), 65 Me. 215; Burroughs v. Whitwam (Mich. 1886), 26 N. W. 491; State v. Twiford (N. C. 1904), 48 S. E. 586.

Question for court or jury as to navigability. Whether a body of water is navigable is a question of fact for the jury. Jeremy v. Elwell (1890), 5 Ohio Cir. Ct. R. 379; Jones v. Johnson (Tex. 1894), 25 S. W. 650.

Navigable waters as common highways.— It is fundamental law throughout the United States that all navigable waters are common highways, forever free to the use of all citizens of the United States, without any tax, impost, or duty therefor. Leverich v. City of Mobile (C. C. 1867), 110 Fed. 170.

Waters navigable.-An estuary which was not a natural harbor, but has been made a harbor by Government works, is navigable. City of Oakland v. Oakland Water-Front Co. (Cal. 1897), 50 Pac. 277.

Waters held not navigable.-It does not follow that, because a stream or body of water was once navigable, it has continued and remains so; and whenever, from any natural or other cause its practical utility as a means of transportation has been permanently destroyed, it should cease to be classed among those waters that are charged with a public use. Harrison v. Fite (1906) 148 Fed. 781.

1846. Same; regulations to prevent injuries from target practice. That in the interest of the national defense, and for the better protection of life and property on said waters, the Secretary of War is hereby authorized and empowered to prescribe such regulations as he may deem best for the use and navigation of any portion or area of the navigable waters of the United States or waters under the jurisdiction of the United States endangered or likely to be endangered by Coast Artillery fire in target practice or otherwise, or by the proving operations of the Government ordnance proving grounds at Sandy Hook, New Jersey, or at any Government ordnance proving ground that may be established elsewhere on or near such waters, and of any portion or area of said waters occupied by submarine mines, mine fields, submarine cables, or other material and accessories pertaining to seacoast fortifications, or by any plant or facility engaged in the execution of any public project of river and harbor improvement; and the said Secretary shall have like power to regulate the transportation of explosives upon any of said waters: Provided, That the authority hereby conferred shall be so exercised as not unreasonably to interfere with or restrict the food fishing industry, and the regulations prescribed in

pursuance hereof shall provide for the use of such waters by food fisher operating under permits granted by the War Department. Sec. 1, Ch. 3 act of July 9, 1918 (40 Stat. 892), making appropriations for the support of Army; U. S. C. 33: 3.

That to enforce the regulations prescribed pursuant to this chapter, the Se tary of War may detail any public vessel in the service of the War Departin or, upon the request of the Secretary of War, the head of any other dep ment may enforce, and the head of any such department is hereby author to enforce, such regulations by means of any public vessel of such departm Sec. 2, Ch. XIX, act of July 9, 1918 (40 Stat. 893), making appropriations the support of the Army; U. S. C. 33: 3.

That the regulations made by the Secretary of War pursuant to this chap shall be posted in conspicuous and appropriate places, designated by him, the information of the public; and every person who and every corporat which shall willfully violate any regulations made by the said Secretary I suant to this chapter shall be deemed guilty of a misdemeanor, and u conviction thereof in any court of competent jurisdiction shall be punished a fine not exceeding $500, or by imprisonment (in the case of a natural perso not exceeding six months, in the discretion of the court. Sec. 3, Ch. XIX, of July 9, 1918 (40 Stat. 893); U. S. C. 33: 3.

1847. Same; establishment of harbor lines. That where it is made manif to the Secretary of War that the establishment of harbor lines is essential the preservation and protection of harbors he may, and is hereby, authorized cause such lines to be established, beyond which no piers, wharves, bulkheads, other works shall be extended or deposits made, except under such regulatio as may be prescribed from time to time by him: Provided, That whenever t Secretary of War grants to any person or persons permission to extend pier wharves, bulkheads, or other works, or to make deposits in any tidal harbor river of the United States beyond any harbor lines established under authorit of the United States, he shall cause to be ascertained the amount of tidewat displaced by any such structure or by any such deposits, and he shall, if deem it necessary, require the parties to whom the permission is given to mak compensation for such displacement either by excavating in some part of th harbor, including the tidewater channels between high and low water mark, such an extent as to create a basin for as much tidewater as may be displace by such structure or by such deposits, or in any other mode that may be satisfa tory to him. Sec. 11, act of March 3, 1899 (30 Stat. 1151), making appropri tions for works on rivers and harbors; U. S. C. 33: 404.

Notes of Decisions

Constitutionality.-In regulating commerce, Congress may establish harbor lines or limits beyond which deposits shall not be made or structures built in navigable waters, and it has acted within its constitutional power in authorizing the Secretary of War to fix the lines. Philadelphia Co. v. Stimson (1912), 223 U. S. 605.

The power of Congress over navigable waters has been exercised by the enactment of this section. Greenleaf-Johnson Lumber Co. v. Garrison (1915), 237 U. S. 251.

Congress has the power to establish harbor lines or modify existing ones in navi. gable waters within the limits of a State. although such State has already established such harbor lines. The power to

establish harbor lines in a given harbor i a continuing power, and may be exercise as often as the needs of commerce requir it. (1897) 22 Op. Atty. Gen. 501.

Power to establish or modify harbo lines. Authority of Secretary of War t establish harbor lines may be exercised to widen the Elizabeth River to permit moor ing of war vessels in front of Norfolk Navy Yard. Greenleaf-Johnson Lumber Co. r Garrison (1915), 237 U. S. 251, affirming (1914), 215 Fed. 576.

The Secretary of War is authorized to establish harbor lines when the interests of commerce require them. And he has power to establish a harbor line for the Tacoma harbor. (1899) 22 Op. Atty. Gen. 501.