place may be made public by a temporary assemblage;1 and the exclusion of a few persons will not alone prevent its being such. Moreover, "we must look at the character of the place, the manner of ingress to it, and the number of persons" assembling. Any place to which people are privileged to go at pleasure may be, when the privilege is availed of, public;" even, under special circumstances and for some purposes, a private dwelling-house may be," though generally it is not. A steamboat is a public place.7

§ 299. Public house. There are connections in which the term "public house" is a synonym for inn. But generally, in our statutes, its meaning is similar to "public place,” just explained. Thus, in a statute against gaming, the office of a justice of the peace is a public house. "The reason is," said Rice, C. J., "that, by the very nature of the business to which it is appropriated, every person who has, or desires to have, any official transaction with such officer, or who has any interest in examining his official books, is, in legal contemplation, invited or licensed to go to his office." And a lawyer's office is the same.1o

in vacation, a public house, public place, or out-house where people resort, within Code, § 3243. McDaniel v. S., 35 Ala. 390; [Cole v. S., 28 Tex. Ap. 536, 13 S. W. R. 859, 19 Am. St. R. 856; Brock v. S. (Tex. Cr. R.), 44 S. W. R. 516.]

1 Campbell v. S., 17 Ala. 369. See Taylor v. S., 22 Ala. 15; [Robinson v. S., 37 Tex. Cr. R. 195, 39 S. W. R. 662; Finnen v. S., 115 Ala. 106, 22 S. R. 593.] 2 Campbell v. S., supra.

3 Coleman v. S., 20 Ala. 51: [Graham v. S., 105 Ala. 130, 16 S. R. 934; Sisk v. S., 35 Tex. Cr. R. 462, 34 S. W. R. 277; P. v. King, 110 N. Y. 418, 18 N. E. R. 245, 6 Am. St. R. 389, 1 L. R. A. 293; Bowlin v. Lyon, 67 Iowa, 536, 25 N. W. R. 766, 56 Am. R. 355; S. v. Brast, 31 W. Va. 380, 7 S. E. R. 11.]

4 Smith v. S., 52 Ala. 384; [Williams v. S. (Tex. Cr. R.), 34 S. W. R. 271; Fossett v. S., 16 Tex. Ap. 375.]

› Cahoon v. Coe, 57 N. H. 556; [Nickols v. S., 111 Ala. 58, 20 S. R. 564.]

10

6S. v. Sowers, 52 Ind. 311. And see S. v. Waggoner, 52 Ind. 481; P. v. Bixby, 67 Barb. 221, 4 Hun, 636; [Pickens v. S., 100 Ala. 127, 14 S. R. 672.]

7 Coleman v. S., 13 Ala. 602. For further illustrations of what is a public place, see Farmer v. Com., 8 Leigh, 741; Walker v. Com., 2 Va. Cas. 515; Flake v. S., 19 Ala. 551; Shihegan v. S., 9 Tex. 430; Purcell v. Com., 14 Grat. 679.

8 St. Louis v. Siegrist, 46 Mo. 593. 9 Burnett v. S., 30 Ala. 19; Huffman v. S., 29 Ala. 40. See also Arnold v. S., 29 Ala. 46.

[Gaming-house. As to what constitutes a gaming-house, see Anderson v. S. (Tex. Ap.), 12 S. W. R. 868: S. v. Black, 94 N. C. 809; P. v. Weithoff, 51 Mich. 203, 47 Am. R. 557; S. v. Grimes, 74 Minn. 257, 77 N. W. R. 4; Bollinger v. Com., 98 Ky. 574, 35 S. W. R. 553; Com. v. Blankenship, 165 Mass. 40, 42 N. E. R. 115; Swigert

10 Smith v. S., 37 Ala. 472.

So, within such a statute, an apartment wherein goods are sold appears to be deemed a public house, even though the playing is at night when doors and windows are closed, and only the players are present.1 But if no others could gain admittance, would not the holding of it to be such contravene the doctrine of the last section? The books furnish other illustrations, but they need not be minutely traced."

§ 299a. Town.- The meaning of the word "town" will vary more or less with the connection and subject. It may include cities and incorporated villages; and, on the other hand, a mere congregation of dwelling-houses not incorporated. Or it may denote a civil division of contiguous territory."

§ 300. Plantation,-in a statute, has been defined to mean, as in common parlance, "any body of land consisting of one or

v. P., 154 Ill. 284, 40 N. E. R. 432; McBride v. S.. 39 Fla. 442, 22 S. R. 711; Cochran v. S., 102 Ga. 631, 29 S. E. R. 438.]

1 Skinner v. S., 30 Ala. 524. And see Huffman v. S., 30 Ala. 532. Said Walker, J., in this case: "The fact that the room in which the gaming occurred was used by one of the proprietors of the store, a single man, engaged in the business of the store, as a bed-room, and was used for no other purpose, does not so disconnect that room from the adjoining room, in which a public store was kept, as to take it out of the prohibition which, prima facie, extends to the entire house, made a public house by the fact that a store was kept in it." P. 534. See also Sheppard v. S., 1 Tex. Ap. 304; [Gomprecht v. S., 36 Tex. Cr. R. 434, 37 S. W. R. 734.]

2 Moore v. S., 30 Ala. 550; Wilson v. S., 31 Ala. 371; Smith v. S., 37 Ala. 472; Redditt v. S., 17 Tex. 610. A saddler's shop, including a back room in the second story, accessible only by an external stairway, and used by a journeyman of the saddler as a sleeping-room, was held in Alabama to be a "public house," within the meaning of section 3243 of the code,

prohibiting gaming. Bentley v. S., 32 Ala. 596. Where the room in which cards were played was a part of a tavern-house, but, having been let by the month for a shoe-shop, was not under the control of the landlord, it was held not to be within the North Carolina Revised Code, section 75, chapter 34. S. v. Keisler, 6 Jones (N. C.), 73; [Comer v. S., 26 Tex. Ap. 509, 10 S. W. R. 106; Goldstein v. S. (Tex. Cr. R.), 36 S. W. R. 289; Galloway v. S. (Tex. Cr. R.), 26 S. W. R. 67.] 3 Flinn v. S., 24 Ind. 286; S. v. Goldstucker, 40 Wis. 124; Kittredge v. Milwaukee, 26 Wis. 46; Beaudette v. Fond du Lac, 40 Wis. 44; S. v. Parsons, 11 Vroom, 1; Whitall v. Gloucester, 11 Vroom, 302; New York v. McGurrin, 6 Daly, 349.

4 Peck v. Weddell, 17 Ohio St. 271. London, etc. Ry. Co. v. Black more, Law R. 4 H. L. 610, 615; Reg. v. Cottle, 16 Q. B. 412; Collier v. Worth, 1 Ex. D. 464. See Murray v. Menefee, 20 Ark. 561; Truax v. Pool, 46 Iowa, 256; [Anderson, Law Dict. 1042.]

Chicago, etc. Ry. Co. v. Oconto, 50 Wis. 189, [36 Am. R. 840;] Smith v. Sherry, 50 Wis. 210; Harris v. Schryock, 82 Ill. 119.

several adjoining tracts, on which is a planting establishment." It is practically synonymous with farm.2

§ 301. Bridge.-A "bridge" is a structure for persons or vehicles to pass upon, spanning a stream or other obstruction. to travel. While commonly it is over water, it need not be, either wholly, or even in part. Ordinarily, but not necessarily, it is a part of a highway; or, more accurately, a public bridge is such. A structure not accessible at either end is not a bridge, nor is one not finished for travel. The abutments, finished for travel, and giving access to what is primarily the bridge, are parcel of the bridge.

§ 301a. Ferry.- A ferry is a water transportation, or the franchise therefor, of passengers and vehicles, for toll, between two points of land."

1S. v. Blythe, 3 McCord, 363. See also Sanderlin v. S., 2 Humph. 315; Molett v. S., 33 Ala. 408; [Ala. & V. Ry. Co. v. Odoneal, 73 Miss. 34, 19 S. R. 202.]

2 Attorney-General v. Judges, 38 Cal. 291; [Anderson, Law Dict. 777.] 3 S. v. Gloucester, 11 Vroom, 302; Sussex v. Strader, 3 Harrison, 108, [35 Am: D. 530;] S. v. Gorham, 37 Me. 451; Reg. v. Derbyshire, 2 Q. B. 745, 2 Gale & D. 97, 6 Jur. 438, and the authorities there cited. See Rex v. Oxfordshire, 1 B. & Ad. 289; S. v. Hudson, 1 Vroom, 137, 147. Some appear to have deemed that a structure, to be a bridge, must be adapted to travel by foot passengers and ordi nary vehicles; so that, for example, a mere railroad bridge is not a bridge. Proprietors of Bridges v. Hoboken Land, etc. Co., 2 Beasley, 503. But the contrary, as to a railroad bridge, has also been held, and such would seem to be the better doctrine. Enfield Toll Bridge v. Hartford, etc. R. R. Co., 17 Conn. 40, [42 Am. D. 716; Westfield v. Tioga County, 150 Pa. St. 152, 24 Atl. R. 700; Carroll Co. Com'rs v. Bailey, 122 Ind. 46, 23 N. E. R. 672. For "drawbridge," see Savannah F. & W. Ry. Co. v. Daniels, 90 Ga. 608,

v.

5 P. v. Buffalo, 4 Neb. 150; Malone S., 51 Ala. 55; Penn v. Perry, 78 Pa. St. 457; [Pittsburgh, etc. Ry. Co. v. Point Bridge Co., 165 Pa. St. 37, 30 Atl. R. 511, 26 L. R. A. 323.]

6 Sussex v. Strader, supra, at p. 112. 7 Penn v. Perry, supra.

8 Sussex v. Strader, supra; Tolland v. Willington, 26 Conn. 578. And see Rex v. West Riding of York, 7 East, 588; West Riding of Yorkshire v. Rex, 2 Dow, 1; Reg. v. Lincoln, 8 A. & E. 65; London, etc. Ry. Co. v. Skerton, 5 B. & S. 559; [City Council v. Hudson, 94 Ga. 135, 21 S. E. R. 289; Board v. Sisson, 2 Ind. Ap. 331, 28 N E. R. 374; Shaw v. Saline Township. 113 Mich. 342, 71 N. W. R. 642; Francis v. Franklin Township, 179 Pa. St. 195, 36 Atl. R. 202; Tinkham v. Town of Stockbridge, 64 Vt. 480, 24 Atl. R. 761.]

9 Attorney-General v. Boston, 123 Mass. 460, 468; Parrot v. Lawrence, 2

§ 302. River.-A river is a stream of flowing water, of greater magnitude than a rivulet or brook. It may be navigable or not; the right to use it may be purely public, or it may be private property; may arise from streams, or constitute the outlet of a lake; bear the appellation of river, or be known by some other name,― these particulars not being material to its legal character as a river.1

$303. Navigable river-Navigable waters.-A "navigable river" is one practically available for floating commerce by any of its methods, or for travel. In England, where the rivers are short and small compared with ours, the ebbing and flowing of the tide therein establishes prima facie their navigability, but it is not conclusive. With us, a river found navigable by this English test is so also. But the test is not commonly applicable. "Some of our rivers," observed Field, J., in the supreme court of the United States, "are as navigable for many hundreds of miles above as they are below the limits of tide water, and some of them are navigable for great distances by large vessels, which are even not affected by the tide at any

Dill. 332; S. v. Wilson, 42 Me. 9; Munroe v. Thomas, 5 Cal. 470; Ward v. Gray, 6 B. & S. 345; Newton v. Cubitt, 12 C. B. (N. S.) 32; Letton v. Goodden, Law R. 2 Eq. 123, 130; Giles v. Groves, 12 Q. B. 721; Aikin v. Western R. R. Co., 20 N. Y. 370; [Mayor of the City of New York v. N. J. Steamboat Transportation Co., 106 N. Y. 28, 12 N. E. R. 435; Anderson, Law Dict. 455.]

I Webster Dict., River; Anderson, Law Dict.; Bouv. Law Dict., River; S. v. Gilmanton, 14 N. H. 467; [Paine Lumber Co. v. U. S., 55 Fed. R. 854.] Navigable stream.- As to what is a "navigable stream," see Munson v. Hungerford, 6 Barb. 265; Dawson v. James, 64 Ind. 162; [Shaw v. Oswego Iron Co., 10 Oreg. 371, 45 Am. R. 146; Burrows v. Whitvam, 59 Mich. 279; Murray v. Preston (Ky.), 50 S. W. R. 1095; Ten Eyck v. Town of Warwick, 75 Hun, 562, 27 N. Y. S. 536; East Hoquiam Boom & Logging Co. v. Nesson, 20 Wash. 142, 54 Pac. R. 1001.]

2 The Montello, 20 Wall. 430; McManus v. Carmichael, 3 Iowa, 1; Tomlin v. Dubuque, etc. R. R. Co., 32 Iowa, 106, [7 Am. R. 176.]

3

Attorney-General v. Woods, 108 Mass. 436, [11 Am. R. 380; Olive v. S., 86 Ala. 88, 5 S. R. 653, 4 L. R. A. 33; City of Oakland v. Oakland Water-works, 118 Cal. 160, 50 Pac. R. 277.]

4 Miles v. Rose, 5 Taunt. 705; Murphy v. Ryan, Ir. Law R. 2 C. P. 143; Lynn v. Turner, Cowp. 86; Vooght v. Winch, 2 B. & Ald. 662; Rex v. Montague, 4 B. & C. 598; [Earl of Ilchester v. Raishleigh, 61 L. T. 477; Poynter v. Chipman, 8 Utah, 442, 32 Pac. R. 642.] P. v. Tibbetts, 19 N. Y. 523; Com. v. Chapin, 5 Pick. 199, [16 Am. D. 386;] Cobb v. Davenport, 3 Vroom, 369: Veazie v. Dwinel, 50 Me. 479; Flanagan v. Philadelphia, 42 Pa. St. 219; [Charleston & Sav. Ry. Co. v. Johnson, 73 Ga. 306.]

point during their entire length." When, therefore, “they 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," they are navigable rivers. "And they constitute navigable waters of the United States within the meaning of the act of congress, in contradistinction from the navigable waters of the states, when they form in their ordinary condition by themselves, or by uniting with other waters, a continual highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which commerce is conducted by water." Within this distinction, Grand river, in Michigan, was held to constitute a portion of the "navigable waters of the United States." such also is the general doctrine in our state tribunals. Even a river capable only of floating logs to market, and used for the purpose, has been adjudged navigable. The Mississippi is navigable at St. Paul. Fox river, in Wisconsin, not originally navigable, has been made so by artificial improvements. In

1 The Daniel Ball, 10 Wall. 557, 563; [Chisholm v. Caines, 67 Fed. R. 285; Leovy v. U. S., 92 Fed. R. 344, 34 C. C. A. 392.]

2 McManus v. Carmichael, 3 Iowa, 1; Tyler v. P., 8 Mich. 320; Depew v. Wabash & Erie Canal, 5 Ind. 8; Diedrich v. Northwestern Union Ry. Co., 42 Wis. 248, [24 Am. R. 599;] Wilson v. Forbes, 2 Dev. 30; Ingram v. Threadgill, 3 Dev. 59; Stuart v. Clark, 2 Swan (Tenn.), 9, [58 Am. D. 49;] Hickok v. Hine, 23 Ohio St. 523, [13 Am. R. 255; S. v. Eason, 114 N. C. 787, 19 S. E. R. 88, 41 Am. St. R. 811, 23 L. R. A. 520; Heyward v. Farmers', etc. Co., 42 S. C. 138, 19 S. E. R. 963, 46 Am. St. R. 702, 28 L. R. A. 42; Walker v. Allen, 72 Ala. 456; Sullivan v. Spotswood, 82 Ala. 163, 2 S. R. 716; Goodwell v. Bossier Police Jury, 38 La. An. 752; Hinkle v. Avery, 88 Iowa, 47, 55 N. W. R. 77, 45 Am. St. R. 224.1

3 Olson v. Merrill, 42 Wis. 203. And see Veazie v. Dwinel, 50 Me. 479.

And

But compare with Peters v. New Orleans, etc. R. R. Co., 56 Ala. 528; Ross v. Faust, 54 Ind. 471, [23 Am. R. 655;] American River Water Co. v. Amsden, 6 Cal. 443; Wethersfield v. Humphrey, 20 Conn. 218; [Falls Mfg. Co. v. Oconto River Imp. Co., 87 Wis. 134, 58 N. W. R. 257; Smith v. Fonda, 64 Miss. 551, 1 S. R. 757; Haines v. Hall, 17 Oreg. 165, 20 Pac. R. 831, 3 L. R. A. 609; Allison v. Davidson (Tenn. Ch. Ap.), 39 S. W. R. 905; Willow River Club v. Wade, 100 Wis. 86, 76 N. W. R. 273, 42 L. R. A. 305.]

4 Castner v. Franklin, 1 Minn. 73. The Illinois court, rejecting the common American doctrine, has held the Mississippi not to be navigable. Houck v. Yates, 82 Ill. 179; [St. Anthony Falls Water Power Co. v. Board, etc. of St. Paul, 168 U. S. 349, 18 S. Ct. 1157, 42 L. ed. 497.]

5 The Montello, 20 Wall. 430; [Bucki v. Cone, 25 Fla. 1, 6 S. R. 160. The Wabash is navigable for four hundred and fifty miles from its mouth.