yet the water need not flow continually; and there are many watercourses which are sometimes dry. There is, however, a distinction to be taken in law between a regular flowing stream of water, which, at certain seasons is dried up, and those occasional bursts of

line, may be somewhat vague and indefinite. Howard v. Ingersoll, 17 Ala. R. (N. S.) 780. Bouvier (1 Law Dict.) says, "Banks of rivers contain the river in its natural channel, when there is the greatest flow of water." The Supreme Court of Louisiana have held, "That the vendee of a riparious estate acquires a qualified property in the bank of a river, and, consequently, the batture which may thereafter arise before the estate; and that the intervention of a highway does not prevent this, where the owner of the estate is bound to repair it, and the soil of it is at his risk." Morgan v. Livingston, 6 Mart. (La.) R. 19. CURTIS, J., in Howard v. Ingersoll, 13 How. (U. S.) R. p. 426, says: :-"The banks of a river are those elevations of land which confine the waters, when they rise out of the bed; and the bed is that soil so usually covered by water, as to be distinguishable from the banks, by the character of the soil or vegetation, or both produced by the common presence and action of flowing water. But neither the line of ordinary high-water mark, nor of ordinary low-water mark, nor of a middle stage of the water, can be assumed as the line dividing the bed from the banks. The line is to be found by examining the bed and banks, and ascertaining where the presence and action of water are so common and usual, and so long continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as in respect to the nature of the soil itself. Whether this line between the bed and the banks will be found above or below, or at a middle stage of water, must depend on the character of the stream. The height of a stream, during much the larger part of the year, may be above or below a middle point between its highest and least flow. Something must depend, also, upon the rapidity of the stream and other circumstances. But in all cases, the bed of a river is a natural object, and is to be sought for, not merely by the application of any abstract rules, but as other natural objects are sought for and found, by the distinctive appearances they present; the banks being fast land, on which vegetation, appropriate to such land in the particular locality grows, wherever the bank is not too steep to permit such growth, and the bed being soil of a different character, and having no vegetation, or only such as exists when commonly submerged in water." The question, in this case, was as to the jurisdiction of Georgia over the Chattahoochee river; and see the learned and ingenious argument of Mr. Berrien, on p. 391 of 1b., et seq.

water, which, in times of freshet, or melting of ice and snow, descend from the hills and inundate the country.1

§ 4. a. A portion of a river may be designated as a bay, but it is not the less a river on account of such name. And, on the other hand, bays may be connected with rivers in such a way as to form a body of waters extending inland, and not be considered part of the river.2

2. How the Private Right of Property in a Watercourse is derived.

§ 5. The right of private property in a watercourse is derived, as a corporeal right or hereditament, from, or is embraced by, the ownership of the soil over which it naturally passes. The well-known maxim, cujus est solum ejus est usque ad cœlum, inculcates, that land, in its legal signification, has an indefinite extent upwards; and therefore it is that a grant of it conveys to the grantee not only the "field" or the "meadow," but all growing timber and water standing and being thereupon; and a stream of water is, therefore, as

1 Reynolds v. M'Arthurs, 2 Peters, (U. S.) R. 417; and opinion of Chan. Pennington, in 3 Green, (N. J.) Ch. R. 234.

2 Per Parker, C. J., in State v. Gilmanton, 9 N. Hamp. R. 461. For the difference, in the eye of the law, between a watercourse and a lake, see post, § 41.

3 Land means the whole surface of the earth; tenement is a word of still greater extent, signifying every thing that may be holden by tenure; but hereditament is the largest and most comprehensive word, including not only lands and tenements, but whatever may be inherited. 1 Greenleaf's Ed. Cruise's Dig. 39; Sacket v. Wheaton, 17 Pick. (Mass.) R. 105. 4 3 Bla. Com. 18: Co. Litt. 4; 2 Brownl. R. 142.

5 Real property is corporeal or incorporeal. Corporeal property consists wholly of substantial and permanent subjects, all which may be com

much the property of the owner of the soil over which it passes, as the stones scattered over it.1 Where the lines given in a grant of land include a stream of water, the soil covered by the water, and, consequently, the water itself, will pass, although the land is not described as aqua coöperta. The proprietor of adjoining lands, who is also the proprietor of the bed of a river, may grant and convey the bed of the river separate from the land which bounds it; but a grant of a stream of water or watercourse, eo nomine, will not pass the land over which the water runs.1

§ 6. In this country, a grant by a State conveying a tract of territory, carries with it a right of property in all the watercourses within the boundaries of the grant. A patent from the State of New York conveying territory twenty-four miles in width on the river Hudson, above tide water, with the territory described as "lying and being in and upon the banks

prehended under the general denomination of land; which Lord Coke says, in its legal signification, comprehends any ground, soil, or earth whatsoever; as meadows, pastures, woods, waters, marshes, furzes, and heath. It has, also, in its legal signification, an indefinite extent upwards, as well as downwards; for it is a maxim of law, cujus est solum, ejus est usque ad cælum. 1 Greenleaf's Ed. Cruise's Dig. 37.

1 By the Court, in Buckingham v. Smith, 10 Ohio R. 288. See, also, Bullen v. Runnels, 2 N. Hamp. R. 255; Canal Commissioners v. The People, 5 Wend. (N. Y.) R. 423; Newson v. Pryor, 7 Wheat. (U. S.) R. 7; Den v. Wright, 1 Peters (Cir. Co.) R. 64; Winthrop v. Curtis, 3 Greenl. (Me.) R. 110; Williams v. Jackson, 5 Johns. (N. Y.) R. 489; Van Gorden v. Jackson, 5 Johns. (N. Y.) R. 440; Pejepscot Proprietors v. Cushman, 2 Greenl. (Me.) R. 94.

2 Browne v. Kennedy, 5 H. & Johns. (Md.) R. 195.

3 Den v. Wright, 1 Peters (Cir. Co.) R. 64. And see Ashly v. Pease, 18 Pick. (Mass.) R. 268.

4 Jackson v. Halstead, 5 Cow. (N. Y.) R. 216.

5 Lunt v. Holland, 14 Mass. R. 149; Middleton v. Pritchard, 3 Scam. (III.) R. 520.

of Hudson river," includes the soil under the river, as far as the patent extends up and down the river.1 In Pennsylvania all rivers and streams of water are comprehended within the charter bounds of the Province, and passed to William Penn, in the same manner as the soil; and in grants of vacant land by him and his successors, during the proprietary times, and by the Commonwealth since, streams of water not navigable, falling within the lines of a survey, were covered by them, and belonged to the owner of the tract; and such owner might convey the body of the stream to one person, and the adjoining land to another, or he might convey the adjoining land only to one, who would then be riparian proprietor to the middle of the stream.2

§ 7. In a case in the State of New York, it appeared that a valuable waterfall in the middle sprout of the Mohawk river, which falls into the river Hudson, had been destroyed by a dam erected for the use of the canals. This fall was granted in terms, as so much land covered with water, in 1752, by Stephen Van Renssellaer, and had come by mesne conveyances to the relator; there being an actual individual seisin of the fall eo nomine for upwards of thirty years. It was well known that the land on both sides of the fall was granted away at a very early period by the State, which had not afterwards asserted the least claim. The canal appraisers refused to allow the relator any damages, on the sole ground that the land

1 Canal Commissioners v. The People, 5 Wend. (N. Y.) R. 423; and see People v. Canal Appraisers, 13 Ib. 355; Rogers v. Jones, 1 Ib. 255. 2 Coovert v. O'Connor, 8 Watts (Penn.) R. 470.

under water belonged to the State; but the Supreme Court granted a mandamus against the appraisers.1

§ 8. It has, therefore, as a matter of course, been held, that the right to a watercourse is a part of the freehold, of which no man can be disseised but by lawful judgment of his peers, or by due process of law. Still, no action will lie to recover possession of a watercourse, by that name; either by estimating the capacity of the water, as for so many cubical yards, or by superficial measure, for "twenty acres of water;" or by a more general description, as for "a river" or "stream of water." The action must be for the land at the bottom, calling it "twenty acres of land covered by water." To give execution of that which is so wandering and fugitive as running water, is indeed impracticable.*

1 Tobias, ex parte, referred to in note to 6 Cow. (N. Y.) R. 551 ; and see Jennings, ex parte, Ib. 518.

2 Gardner v. Newburgh, 2 Johns. (N. Y.) Ch. R. 162. And see Beidelman v. Foulk, 5 Watts, (Penn.) R. 308.

3 2 Bla. Com. 18; Runnington on Eject. 131.

4 In Challenor v. Thomas, (Yelverton's Rep. 143, Metcalf's ed.) error was brought on a judgment given in ejectment in Com. Carmarthen: And Yelverton assigned the error, because the ejectment was brought de aquæ cursu, called Lochar in Llandeby, and declared on the lease of David Rees ap Thomas de quodam rivulo et aquæ cursu ut supra. And, per totam curiam, the judgment was reversed; for rivulus seu aquæ cursus doth not lie in demand, neither doth a præcipe lie of it, nor can livery of seisin be made of it; for non moratur, but is ever flowing; nor can execution by habere fac. seisinam be made of it; for it is not constant to be put in possession of it: And it is like a protection quia moratur super mare, which is not allowable by 35 H. 6. for mare non moratur; but as 12 H. 7. 4, is, the action ought to be for so many acres of land aquæ coōperta; and ejectment well lies of a gorce or pool, for a præcipe lies for them, and a wife shall be endowed of the third part of the gorce, as 11 E. 3. is. But if the land under the river or water does not belong to the plaintiff, but the river only, then on a disturbance his remedy is only by action on the case on any diversion of it. In Godbolt, 157, pl. 213, it is said:-"It