This right the plaintiff has never acquired, as shown by the pleadings. It is true that the defendant, in his answer to the complaint, does not allege in express terms that the said cause is still pending in this court. But he avers that which is manifestly equivalent thereto, namely: that "No remittitur or mandate has ever been issued in the said action of Marden against Plaisted and Wheelock, from the said Supreme Court of the United States to the said Supreme Court of the said Territory; and that no remittitur or mandate from the said Supreme Court of the said Territory has ever been issued to the District Court named above in said action; and that the said judgment so rendered in the said Supreme Court of the said Territory, still remains in that court so stayed by the order thereof, by the giving of the said bond on appeal, and by the said supersedeas. The only proper evidence, therefore, of the final affirmance of the said judgment, is the mandate of this court. And no such mandate has been "sent down to have the judgment entered as final in the lower court," as appears by the pleadings set out in the record. Mr. W. F. Saunders, for the defendant in error. Mr. Chief Justice Waite delivered the opin ion of the court: After the filing of the answer, judgment was given against Gillette upon the pleadings. The question we are now called upon to consider is, whether the answer states facts sufficient to constitute a defense to the action. By the Practice Act of Montana (sec. 78), it is provided that "In the construction of a pleading for the purpose of determining its effects, its allegations shall be liberally construed, with a view to substantial justice between the parties." This is a modification of the common law rule, which construes all pleadings most strongly against the pleader; but even with the statute as our guide, we think the judgment below was correct. An answer, to be good, must overcome the case made by the complaint. If the facts well pleaded in the complaint are admitted, as in this case, it must state other facts sufficient if true to defeat the action in whole or in part, or it will not avail as a defense. That is not the case here. It is nowhere averred that at the time of the commencement of this action the appeal to this court was pending or that it had ever been perfected. In fact, such averments seem to have been studiously avoided. The appeal was allowed in January, 1869. Unless a transcript was filed in this court before the end of the following term that appeal would be vacated. In the language of very many decisions it would become functus officio. EdThis was an action upon an appeal bond, com- monson v. Bloomshire, 7 Wall., 310 [74 U. S., menced on the 30th Jan., 1872. The com- XIX., 92]. The supersedeas is but an appurteplaint alleges that on the 15th of June, 1868, one nance of the appeal. The stay insisted upon in the Marden recovered a judgment in the District answer, although there seems to have been an Court of the Territory, against Plaisted and attempt to make it more, is only that which Wheelock, which yet remained in full force, un- resulted from the supersedeas. That was at an reversed and unsatisfied, except as thereinafter end when the appeal became inoperative. The stated; that, on the 16th day of July, 1868, failure, therefore, to aver that the appeal was Plaisted and Wheelock appealed from that judg-in force, was a failure to aver that the stay, as ment to the Supreme Court of the Territory, granted, continued to have effect. and on such appeal, Gillette executed the bond now sued upon, whereby he became bound for the payment of the judgment, and all damages and costs that might be awarded against the appellants, if it should be affirmed that, on the 31st day of Dec., 1868, said judgment was affirmed by the Supreme Court of the Territory, and costs adjudged against the appellants; that by virtue of executions issued, certain sums were made on the 22d of August, and the 26th of Sep., 1870, but that a large balance still remained unpaid, for the recovery of which the action was brought. The answer filed on the 21st of February, A. D. 1872, did not deny any of the averments in the complaint, but alleged by way of defense, that on the-day of January, 1869, Plaisted and Wheelock appealed from the judgment of the Supreme Court of the Territory to this court; that they thereupon executed and filed with the clerk of the Supreme Court of the Territory, a good and sufficient bond on appeal, and that court stayed all proceedings upon the judgment and granted a supersedeas in the action; that no remittitur or mandate had ever been issued from this court to the Supreme Court or the Territory or from the Supreme Court of the Territory to the district court, and that the judgment of the Supreme Court of the Territory still remains in that court, "so stayed by the order thereof, by the giving of the bond on appeal, and by the supersedeas." The complaint alleges that money was made upon executions in 1870. The date of the issue of the executions is not given, but if the collection was regular the judgment could not have been stayed when the money was made, and that was after the time within which the appeal, if it was to remain in force, must be perfected. Clearly, therefore, to make the defense perfect, it was incumbent upon the defendant to aver distinctly in his answer not only that the appeal had been taken, but that it had been perfected and was still pending when the action was commenced. It is, however, stated that no mandate or remittitur had been issued from this court to the Supreme Court of the Territory, or from the Supreme Court of the Territory to the district court when the action was commenced. None could issue from this court, for there was nothing here, so far as the pleadings show, to remand. None was necessary from the Supreme Court of the Territory to the district court, because the condition of the bond is to pay if the judgment should be affirmed. The affirmance, therefore, is the material fact which is to fix the liability. That is averred in the complaint and not denied in the answer. The judgment is affirmed. Cited-101 U. S., 13. SAMUEL V. MAYS AND CHARLES W. |(81 U. S., XX., 832); Buchanan v. Smith, 16 v. FREDERIKA FRITTON. (See S. C., 20 Wall., 414-420.) Decision, when conclusive-action by assignee in bankruptcy-verdict of jury. 1. Where a party submits the decision of his claim to a state court, he cannot, upon failure,come into this court and object that the court below had no authority to take the proceeding. 2. To authorize the assignee to recover money or property under section 35 of the Bankrupt Act, he must establish, not only the act of the bankrupt, of which he complains, but also that it was done with a view to give a preference over other creditors, and that the other party to the transaction had reasonable cause to believe that such person was insolvent. 3. Where both of these necessary facts have been found against the assignee, this court must assume that the verdict of the jury is right. An inhibition of preferences was the rule of the Roman law from Julius Cæsar, who legis. lated the cessio bonorum in the interest of the debtor class, and still remains the law of the Continent. 4 Mommsen's Rome, 473, et seq. The jurisprudence of Pennsylvania, on the contrary, encouraged and enforced preferences. Worman v. Wolfersberger, 19 Pa., 63; see, Breading v. Boggs, 20 Pa., 37; Covanhovan v. Hart, 21 Pa., 495; Uhler v. Maulfair, 23 Pa., 481; Siegel v. Chidsey, 28 Pa., 279; York Co. Bank v. Carter, 38 Pa., 446; Witmer's Appeal, 45 Pa., 462. Attempting to give a preference by confess ing a judgment, is as old as the Pandects of Justinian. Ulpian says: "Simili modo dicimus et si cui donatum est, non esse quaerendum an sciente eo cui donatum justum sit, sed hoc tantum an fraudentur creditores. Nec videtur injuria affici is qui ignoravit, cum lucrum extorqueatur non damnum infligatur." If the debtor has made a donation to some one, we do not inquire whether the donee had knowledge of the transaction, but simply whether creditors are defrauded. In such a case no wrong is done to the donee who knew not the fraud, because no loss is caused to him, and he is only deprived of the means of gaining. L. 6, sec. 11, Quae in fraudem creditorum, 42, Book 8, Title of the Digest. This was and is the law of Scotland. 2 Principles of Equity, 203; Home; 2 Bell, Com., 212, ed. 1826. And England. Worseley v. Demmattos, 1 Burr.,477; Sir George Newland's case, 1 P. Wms., 92; Orlebar v. Fletcher, 1 P. Wms., 737; in re London, etc., Biscuit Co., L. R., 12 Eq., 193, ad fin. No other doctrine is reconcilable with the provisions of the United States Bankrupt Law and the decisions of this court. Toof v. Martin, 13 Wall., 40 (80 U. S., XX., 481); Traders' Bank v. Campbell, 14 Wall., 87; See 20 WALL. U. S., Book 22. Wall., 277 (83 U. S., XXI., 280); Wager v. Hall, 16 Wall., 584 (83 U. S., XXI., 504). And the present case is directly covered by the principles enunciated in Wilson v. City Bank January, 1874 (84 U. S., XXI., 723); see, Legal Intelligencer, January 23, 1874; Zahm v. Fry, Legal Intelligencer, June 19, 1874, U. S. Circuit Court for Pa. But the State Courts of Pennsylvania were entirely without jurisdiction, over the matters involved in this controversy. After the uncontested liens were paid, the residue should have been handed over to the assignees. McLean, Assignee, v. Lafayette Banks, 3 McLean, 185. Messrs. J. H. Parsons and A. V. Parsons, for defendant in error: All the facts material to our case were found by a jury and by the auditor in favor of the defendant in error. The second issue was, whether at the time of the giving of the warrant of attorney, the said Frederika Fritton had reasonable cause to be lieve that the said August Burn wad insolvent. This fact was found by the jury and the auditor in her favor. There is no fact in the cause proven by which the case can be brought within the provisions of the 35th Section of the Bankrupt Law. Mr. Justice Hunt delivered the opinion of the court: The contention in this case arose in regard to the distribution of the residuum in the case of a mortgage forclosure in the state courts of Pennsylvania. In the year 1862, the bankrupt executed two mortgages, both of which were paid by the sheriff out of the proceeds of the sale, and the residuum, $7,247.65, was brought into court for distribution among those entitled. The proceedings were conducted before an auditor, where it was conceded that a certain other mortgage of $2,055, and certain expenses amounting to $438.50, must next be paid, leaving in dispute the sum of $4,754.15. This sum was claimed by Mays and Hornor, assignees in bankruptcy of August Born, as the property of the bankrupt and to be paid to them. Mrs. Fritton, claiming a lien by judgment upon the property sold, insisted that the judgment lien was a lien upon the proceeds of the property sold, and that she was entitled to the proceeds. The auditor awarded the money to Mrs. Fritton, and upon an appeal to the Supreme Court of Pennsylvania, his judgment was affirmed. The assignees insist upon the present argument that the state court was without jurisdiction over Mrs. Fritton's claim; that it erred in granting a feigned issue upon her affidavit, and in giving judgment in her favor. The argument is that the whole subject belongs to the United States Court to decide, and that when it appeared that proceedings in bankruptcy had been taken, and were still pending, the jurisdiction of the state court was at an end, and the matter should have been certified into the United States District Court for its determination. Whether the judgment creditor had a lien or not is a question, it is said, which can only be solved in an United States Bankrupt Court. In looking into the record we do not find this 389 25 question anywhere made in the courts below. | failure, come here and object that the court beIt does not appear to have been made before low had no authority to take the proceeding. the auditor, or before the Supreme Court on This point comes before us at every term and appeal. On the contrary, it affirmatively ap is always decided the same way. Brown v. pears that the assignees submitted the question Clarke, 4 How., 4; Phelps v. Mayer, 15 How, of the title to the fund to both of these courts, 160; Turner v. Yates, 16 How., 14; Camden v. and asked its decision in their favor. Thus, in Doremus, 3 How., 515; Bk. v. Kennedy, 17 the proceeding before the auditor, on the 9th Wall.. 19 [84 U. S., XXI., 554]; Reed v. Gardof March, 1868, the assignees appeared by their ner, 17 Wall., 409 [84 U. S.. XXI.. 665]; Ray counsel and "claimed the entire fund, on the v. Smith, 17 Wall., 412 [84 U. S., XXI., 666]; grounds: Ins. Co. v. Folsom, 18 Wall., 237 [85 U. S., XXI., 827]; Town of Ohio v. Marcy, 18 Wall., 552 [85 U. S., XXI., 813]; Lucas v. Brooks, 18 Wall., 436 [85 U. S., XXI., 779]: Shutte v. Thompson, 15 Wall., 151 [82 U. S., XXI.,_ 123]; Prout v. Roby, 15 Wall., 472 [82 U. S., XXI., 58] First. That it is the property of a bankrupt, and, by reason of said bankruptcy, all his estate passed to the assignees. Second. It was proposed to attack Mrs. Fritton's judgment, on the ground that it was given in fraud of the Bankrupt Law," and for various reasons set forth. Mrs. Fritton denied the allegations of fact made by the assignees, and a jury was demanded and granted, in pursuance of the practice in such cases in Pennsylvania. After the jury had passed upon the questions of fact the record shows that the counsel for the assignees again appeared before the auditor, claiming the fund and insisting that under the findings of the jury Born was an insolvent when he executed the warrant of attorney to Mrs. Fritton; that it was given to secure a prior debt, and was a fraud upon the provisions of the Bankrupt Act. So, upon the appeal to the Supreme Court, the same ground was taken. It was contended that there was error, among other things, in disregarding the various provisions of the United States Bankrupt Law in regard to preferences given by bankrupts, and in giving Mrs. Fritton a preference over other creditors, contrary to the 27th section of the United States Bankrupt Act." In stating their position before the Supreme Court on appeal, the assignees, in their argument, which is contained in the record, say: "The inquiry is reduced to this: who is entitled to the fund in court, Mrs. Fritton or Born's assignees?" In all these instances, the assignees submitted the decision of their claims to the state courts, and, in asking those courts to decide in their favor, necessarily asked them to decide the case. While the assignees have made sufficient objection to the judgment rendered against them, we nowhere find an objection to the power of the court to render a judgment. An objection that the court has not decided correctly is a very different thing from an objection that the court has no power to decide. The present was the case of the foreclosure of a mortgage under the state laws. The disposition of any surplus that might arise from a sale on such mortgage, under a proceeding in the state courts, prima facie belonged to the state courts. The subject-matter was within their jurisdiction, and under their control. If special circumstances existed which altered that result, it was the duty of the party making such claim to state them and ask a ruling accordingly. Nothing of the kind was done in the present instance. To be available here an objection must have been taken in the court below. Unless so taken it will not be heard here. It is not competent to a party to assent to a proceeding in the court below, take his chances of success and, upon We are not called upon, therefore, to decide whether, in a case like the present, the state court having the fund in its possession, was competent to proceed to its distribution, or whether if demand had been made, there having been previous to that time a decree of bankruptcy and the appointment of assignees, the whole subject should have been remitted to the United States Court. See, Marshall v. Knox, 16 Wall., 551 [83 U. S., XXI., 481]. The assignees contend, further, that the judgment below was erroneous for the reason that the judgment of Mrs. Fritton was void under the Bankrupt Act, and that she was not entitled to the fund awarded to her. This is the question and the only question which was litigated by the assignees in the state courts. The facts bearing upon the question are these: On the 16th of January, 1868, Born executed and delivered to Mrs. Fritton a bond and warrant of attorney, to secure the payment of $4,500 in one year from date, with interest, on which judgment was perfected the same day. On the 31st day of the same month, a petition was presented by a creditor of Born, praying that he might be declared a bankrupt, stating various acts of bankruptcy alleged to have been committed on the first day of January, 1868, the 3d and the 14th days of the same month. On the 28th day of February, 1868. Born was adjudged to be a bankrupt, and on the 18th day of March, Mays was appointed one of his assignees. In the proceedings before the auditor, the assignees insisted that at the time of giving the warrant of attorney, Born was insolvent. This allegation the jury found to be true. It was insisted, also, that Mrs. Fritton had reasonable cause to believe that Born was then insolvent. On this point the jury found with Mrs. Fritton, to wit: that she had not such cause. The jury found, further, that the judgment was given to secure the payment of a prior debt, but that it was not given to enable Mrs. Fritton to obtain a preference over other creditors. The 39th section of the Bankrupt Act defines what acts of the debtor afford grounds for declaring him to be a bankrupt upon the petition of his creditor, among which are the following: "Or who being bankrupt or insolvent, * * shall make any payment, gift, grant, sale, * or give any warrant to confess judgment, or procure or suffer his property to be taken on legal process with intent to give a preference to one or more of his creditors." The Bankrupt Court, on the 31st of January, 1868, adjudged Fox River. that Born had committed some of the acts in | Navigable rivers-what are-natural barriers— this section specified, by reason of which his creditor was entitled to have him declared a bankrupt. Whether Mrs. Fritton shall retain this fund or shall lose it, depends upon the 35th section of the same Act. That section enacts that if any person, being insolvent or in contemplation of insolvency, and within four months before the filing of a petition by or against him, with a view to give a preference, procures his property to be attached or seized on execution, or makes any payment, pledge, transfer, or who shall within six months make any sale, transfer, conveyance or other disposition of his property to any person having reasonable cause to believe that such person is insolvent, and such payment. etc., is made in fraud of the provisions of this Act, the same shall be void and the assignees may recover the property, etc., from the person so to be benefited. To authorize the assignees to recover the money or property under this section, it is neces sary that he should establish the act of the bankrupt, not only of which he complains, but also that it was done with a view to give a preference over other creditors, and that the other party to the transaction had reasonable cause to believe that such person was insolvent. For a full discussion of the law on this general subject, see the recent case of Wilson v. Bk., 17 Wall., 473 [84 U. S., XXI., 723]; Bump, Bank., 532-542, 547. In the case before us, both of these necessary facts have been found against the assignees. In answer to the second inquiry submitted to them, the jury said that Mrs. Fritton had not reasonable cause to believe that Born was insolvent at the time he executed the warrant of attorney. In answer to the further inquiry, they said that this warrant of attorney was not given with a view to a preference over other creditors. The warrant of attorney, cannot, therefore, be held void under the 35th section of the Bankrupt Law. That section does not reach it, and as the act of the parties was valid under the statutes of Pennsylvania, there is nothing to impeach its validity. We have not the evidence before us, and we must assume that the verdict of the jury is right. The statute assumes that there may be cases where the various acts of conveyance and disposition may be made, which would not amount to giving a preference. We are of the opinion that the judgment of the Supreme Court of Pennsylvania was right, and that it should be affirmed. S. C.-11 Bk. Reg., 229. Cited-22 Wall., 59; 91 U. S., 526; 95 U. S., 59; 105 U. S., 646; 1 Hughes, 201: 8 Ben., 530; 12 Bk. Reg., 96; 13 Bk. Reg., 550; 14 Bk. Reg., 17; 16 Bk. Reg., 174, 386; 17 Bk. Reg., 239, 387; 30 Ohio St., 531; 69 Mo., 630; 32 Mich., 316; 20 Am. Rep., 649. UNITED STATES, Appt., v. THE STEAMER MONTELLO, HER BOATS, etc., STEPHEN M. BOOTH and CHARLES W. SLAYTON, Claimants. (See S. C., "The Montello," 20 Wall., 430-445.) 1. Those rivers must be regarded as public navigable rivers in law, which are navigable in fact. poses of transportation and commerce, affords the 2. The capability of use by the public for pur-. true criterion of the navigability of a river, rather than the extent and manner of that use. used for purposes of commerce, no matter in what 3. If it be capable in its natural state of being mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway, although its navigation may be encompassed with difficulties by reason of natural barri4. Fox River is a navigable water of the United States, and steamboats navigating its waters are subject to governmental regulation. [No. 30.] ers. Argued Mar. 6, 1874. Ordered for re-argument Apr. 20, 1874. Re-argued Oct 21, 1874. Decided Nov. 23, 1874.. APPEAL from the Circuit Court of the Unit ed States for the Eastern District of Wis consin. The libel in this case was filed by the District Attorney of the United States for the District of Wisconsin, in the District Court for that district, to enforce certain penalties against the steamer Montello for her failure to comply with the Acts of Congress concerning the inspection of such vessels engaged in carrying passengers upon the navigable waters of the United States. The case was before this court in 1870 and was then remanded with instructions for further proceedings, in accordance with the opinion of this court as reported in The Montello, 78 U. S., 411, XX., 191. Hearing of the case was had in conformity with such mandate in the circuit court, and a large mass of testimony was taken concerning the navigability of Fox River. A decree of dismissal having been entered, the plaintiffs again took an appeal to this court. Messrs. Geo. H. Williams, Atty-Gen., and C. H. Hill, Asst. Atty-Gen., for appellant: The question of whether a stream constitutes part of the navigable waters of the United States, does not depend entirely upon the question whether artificial improvements are required in order to render navigation upon it unbroken. The question, as stated by the court when this case was last before it, is a question of fact. A stream may be so insignificant, that, although constituting a part of a slack water or other artificial navigation, and thus navigable, NOTE. To what places the jurisdiction of admiralty is confined. See note to Allen v. Newberry, 62 U.S., XVI., 110. Navigable waters, what are in United States. Streams and inland waters as highways. The "navigable waters of the United States" are such as are navigable in fact, and which by themselves or their connection with other waters, form a continuous channel for commerce with foreign countries or among the States. Miller v. Mayor of New York, 109 U. S., 385, 395. The Ohio is one of the navigable rivers of the United States. Bridge Co. v. U. S., 105 U. S., 470, 475; Packet Co. v. Catlettsburg, 105 Ú. S., 559. The common law test of the navigability of waters, that they are subject to the ebb and flow of the tide, has long since been discarded in this country. Vessels larger than any which existed in Enrivers and inland lakes for more than a thousand gland when that test was established, now navigate miles beyond the reach of any tide. That test only becomes important when considering the rights of reparian owners to the bed of the stream, as in some States it governs in that matter. Escanaba Co. v. Chicago, 107 U. S., 678, 682. it would be entirely lost sight of in the vastly" portages." communication was kept up begreater navigation connected with it. But some tween the navigable waters to the north and to of the greatest rivers on the continent, like the the south. Some of the rivers thus used were St. Lawrence and the Ottawa, are so interrupt- very small and would only float canoes. The ed by rapids as to require artificial means to portages varied in width, but were seldom less navigate them without break; and the Great than twenty miles. The shortest was the portLakes themselves, by the employment of arti- age between Fox River and the Wisconsin, ficial means only, form an uninterrupted line which was about two miles. These two rivers of navigation with the ocean. Where the nat- formed one of the earliest and most important ural navigation is the principal one, and the ar- channels of communication across the Territificial merely dependent and ancillary thereto, tory, and this was the route by which, as early and the natural stream is, in fact, navigable as 1673 Marquette proceeded from Canada to within the ordinary acceptation of the word, then the Mississippi. it is contended that the river forms a part of the navigable water of the United States, if, by means of the artificial navigation it is practically made so, and interstate commerce is actually carried on. All courts, that have had occasion to discuss the question of what is a navigable stream, have given a very broad and liberal construction to these words. Thus in Wisconsin this very river is treated as a navigable river. Harrington v. Edwards, 17 Wis., 586. merous. People v. Canal Appraisers, 33 N. Y., 461; Morgan v. King, 35 Me., 454; Brown v. Chadbourne, 31 Me, 9; Flanagan v. Philadelphia, 42 Pa., 219; Monongahela Bridge Co. v. Kirk, 46 Pa., 112; Moore v. Sanborne, 2 Mich., 519; Cobb v. Smith, 16 Wis., 692; Wood v. Hustis, 17 Wis., 429. 64 Partian's Discovery of the Great West, 52, et seq., 3 Bancroft, Hist. of the U. S., 156, 157. By the Ordinance of 1787, organizing the Northwest Territory, Congress enacted that The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of said Territory as to the citizens of the United States, and those of any other States that may be admitted into the Confederacy, without any tax, impost or duty therefor." Ordinance of 1787, article IV. By the Statute of 1836, ch. 54, sec. 12, establishing the Territory of Wisconsin, the inhabitants are declared entitled to "All and singular the rights, privileges and advantages,' and "Subject to all the conditions, restrictions and prohibitions," contained in th Ordinance of 1787. 5 Stat. at L., 15. In 1787 the territory west of the Mississippi By the Statute of 1846, ch. 89, sec. 3, admitbelonged to France, but the United States ting Wisconsin into the Union as a State, it was owned the then unorganized territory north-enacted that the Mississippi and other rivers west of the Ohio River, separated by the Great bordering on said State, and the navigable Lakes from the British Territory on the north, waters leading into the same, shall be common and by the Mississippi from the French Terri- highways, and forever free, as well to the intory on the west, and now forming the States habitants of said State as to all other citizens of of Ohio, Indiana, Illinois, Michigan and Wis- the United States, without any tax, duty, imconsin. post or toll therefor." An extensive trade was carried on across this territory, by means of rivers flowing north into the Great Lakes and south into the Mississippi and its tributaries, which rise in the center of the territory and often but a few miles apart, so that by carrying goods and canoes across the short intervening spaces known as The capacity of a stream to float logs renders it a public highway for that purpose, even though it can be used only at certain seasons of the year. Brown v. Chadbourne, 31 Me., 4: Treat v. Lord, 42 Me., 552; Knox v. Chaloner, 42 Me., 150: Veazie v. Dwinel, 50 Me., 484: Lancy v. Clifford, 54 Me., 489; Thunder Bay B. Co. v. Speechly, 31 Mich., 336; S. C., 18 Am. Rep., 184; Gerrish v. Brown, 51 Me., 256; Davis v. Winstrow, 51 Me., 297. It is not a public right to float logs down a nonnavigable stream only fit for that purpose during periodical freshets. Hubbard v. Bell, 54 Ill., 110; S. C., 5 Am. Rep., 98. A stream having the capacity to float logs only, whether continuously or periodically, is in no sense navigable. Amer. Riv. Water Co. v. Amsden, 6 Cal., 443. The public have an easement in shallow streams which are of sufficient depth for valuable floatage. Stuart v. Clark, 2 Swan, 16; Elder v. Burrus, 6 Humph., 364. Streams are navigable if of sufficient capacity at any stages of water to be used for the transportation of lumber or other goods. Barclay R. R., etc., v. Ingraham, 36 Pa. St., 291. Rivers to the extent that they are in fact navigable are public highways. A river is navigable which is capable of transporting the products of the country or upon which commerce may be conducted. Hickok v. Hine, 23 Ohio St., 523; 8. C., 13 Am. Rep., | 9 Stat. at L., 57. By the Act of 1846, ch. 170, 9 Stat. at L., 83, Congress granted a quantity of land to the State of Wisconsin, for the purpose of improving the navigation of the Fox and Wisconsin Rivers, and declared that they, when improved, should be forever free. 255; Benson v. Morrow, 61 Mo., 345; Wis. Riv. Co. v. Lyons, 30 Wis., 61. A stream capable of being commonly and generally used for floating boats, rafts or logs for any useful purpose is subject to the public use as a passageway. Weise v. Smith, 3 Oregon, 445; S. C., 8 Am. Rep., 621. Whether a river is navigable is a question of fact that in no manner depends upon whether or not the Legislature has declared the river navigable. Martin v. Bliss, 5 Blackf., 35; S. C., 32 Am. Dec., 52. The mere fact that a stream has been made navigable by artificial means, will not render it a highway where it was not so before. Morgan v. King, 55 N. Y., 454; Wadsworth v. Smith, 11 Me., 278; Veazie v. Dwinel, 50 Me., 479. Above tide-water presumption is that fresh water stream is not navigable; onus is on party claiming it to be so. Whether a stream is a public highway is a question for the court. Rhodes v. Otis. 33 Ala., 578. Waters are to be deemed navigable which are sufficient in fact to afford a common passage for all people in sea vessels. Collins v. Benbury, 3 Ired. Law, 277; S. C., 38 Am. Dec., 722. The large rivers of Pennsylvania are navigable, although there is no ebb and flow of tide therein, and belong to the Commonwealth. Carson v. Blazer, 2 Binn., 475; S. C., 4 Am. Dec., 463. |