appearance of the river may be sensibly the same, the stream flowing between restricted banks to the ocean where the transition from narrow channel to boundless ocean basin may be abrupt and striking, leaving no possible doubt as to where the mouth of the river is located.
Under such circumstances it must be obvious that the presence or absence of salt water in the lower part of a river's course, and the variable percentage of salt water at a given point at different times, depend upon factors quite independent of the river's existence as such. We cannot stand on the bank of a stream, miles inland from its clearly defined mouth at the edge of a perfectly developed delta, and say : “ I cannot tell whether or not this is a river until I determine the salinity of the water ;” nor can we say : “ It was a river yesterday, because I found no salt water then, not even in the bottom of the channel ; but I have no idea whether it is a river to-day, because I have not tested the water since yesterday.”
In the Gulf of Mexico the lighter water of the Mississippi River flows out over the salt water of the sea in a layer some feet in thickness ; yet this part of the gulf is still as much a part of the sea as ever. Opposite the mouth of the Rhone the surface water is sometimes fresh 10 miles out to sea,* while the Amazon affords a classic example of this phenomenon on a big scale. The Baltic is an arm of the sea, despite the fact that the water in the northern part is relatively fresh clear to the bottom. In Albemarle Sound the water is quite fresh to the bottom in the heads of bays which all physiographers would agree must be classed as arms of the sea. I have watched cattle drinking from the head of the Baltic, and observed healthy cypress trees standing in fresh water, eight feet deep, in Albemarle Sound, yet cannot regard either as anything but arms of the sea. And if percentage of salt does not determine the extent of the sea in these cases, it cannot determine the extent of the sea in river channels. As a matter of fact, seas and rivers are physiographic entities quite independent of the extent to which fresh water may enter the one, or salt water may enter the other. Salt water is usually characteristic of the sea, as fresh water is usually characteristic of rivers. But where sea and rivers meet their waters mingle in varying ways under varying conditions, so that degree of salinity has no scientific value as a means of determining where the sea ends and rivers begin.
On the grounds just outlined I cannot regard the presence of salt-water, mingled with the fresh, in the Narrows and in Lake Melville as having any bearing on the question as to whether or not these water bodies are arms of the sea. In both bodies the salt water occurs in the manner common to true river channels and lake basins located close to the sea. And since fauna and flora vary with variations in salinity of water, it follows that the presence of a marine fauna or a marine flora, or both, along parts of the water bodies In question, is irrelevant to the present issue. We might accept as valid all the observations presented by Mr. C. Tate Regan as to the theoretical possibility that marine animals and marine plants may penetrate into Lake
* WHEELER, W.H. “ Tidal Rivers,” p. 116, London, 1893.
Melville (although Regan opposes theoretical possibilities to observed facts) without being one step nearer the solution of the problem before us. Similarly we might accept the brief observations of Vice-Admiral Learmonth on density and temperature of the waters in the Narrows and Lake Melville, without securing light on the critical point at issue. These observations are all of value as tending to emphasize the fact brought out above, that where fresh water streams meet the sea, there is a mingling of fresh water with that of the sea, and a mingling of salt water with that of the streams in proportions that vary widely under changing conditions. But salt water does not make the river or lake part of the sea, any more than fresh water makes the sea a river or lake.
THE PROPAGATION OF THE TIDES INTO A RIVER OR A LAKE DOES NOT CONSTITUTE AN ARM OF THE SEA.
If the mingling of salt water with the fresh in a river channel or lake basin does not constitute such river or lake an arm of the sea, much less can the entrance of the tides be held to transfer a stream or lake to the domain of the ocean. For the tidal undulation is transferred from salt to fresh water with perfect ease, and normally penetrates inland far beyond the greatest reach of the salt water.
“ From the general formation of the country (Prince Edward Island), the tides ebb and flow many miles up all the rivers and almost to the source of many others,” said the Court in the case of Regina v. Cox when holding that the term “ coast ” was not applicable to land fronting on a certain tidal river. Along the improved River Nene in England the tides reach to Peterborough, 25 to 30 miles above the point where that stream empties into the Wash. In the River Trent the tide enters as a bore or eagre which passes Gainsborough and is felt above Torksey, 34 miles from the river's junction with the Humber. The tidal wave in the Seine passes Rouen and reaches some distance above Martot. If we consider that the mouth of this river is found at the head of the long narrow estuary, some miles above Quilleboeuf, the tide penetrates 60 miles along the course of the river proper. The Scheldt is tidal 58 miles above Antwerp, or 70 miles above the point where the channel suddenly expands into an estuary three or four times as broad, below Lillo. Tidal pulsations are constantly felt on the St. Lawrence as far up as Three Rivers and under favourable circumstances (low stage of river and high spring tides) have been detected at Montreal, 150 miles above Quebec. In the Hudson River the tide flows strongly to Albany and Troy, 150 miles from where the stream enters the inner New York harbour. At Troy the mean range of the tide is still nearly three-quarters as great as at the river's mouth, and the tide would flow farther were it not stopped by a dam. On the Amazon the tides penetrate far into the interior of the country, both along the main river and along its tributaries. Thus on the Rio Tapajos the tides rise and fall several inches at a point 380 miles above that river's junction with the main Amazon, or 750 miles from the point where the Amazon first begins to expand
into its estuary, and 900 miles from the Atlantic.* If we are to admit that Albany and Troy, situated behind a high mountain barrier through which the Hudson escapes by a narrow and picturesque gorge, are coastal cities ; if we are to admit that the coast-line of South America is to be drawn not only up the Amazon for hundreds of miles but up its tributaries for additional hundreds of miles, then “ coast ” and “ river ” no longer have any sure significance as geographic terms. To state the proposition that we should go between 300 and 400 miles up the Amazon to the mouth of the Tapajos, then 380 miles up the Tapajos, to a point 900 miles from the open Atlantic, before we draw the line from which to measure inland a certain breadth of coast, is sufficient to show the absurdity of the proposition. Manifestly tides are not phenomena peculiar to the ocean. They arise in the ocean, but are communicated to any water bodies open to receive them, whether such bodies be sea inlets, true rivers or lakes, or artificial canals or reservoirs.
LEGAL VIEW OF TIDAL RIVERS.
Thus far I have considered the problem of salt water and tidal undulations in rivers solely from the physiographic point of view. To show that the conclusions stated are not based on highly theoretical grounds or reached by fine-spun academic reasoning, but, on the contrary, are such as to commend themselves to the sound common sense of mankind, it is pertinent to point out that these same conclusions have long been firmly established in our legal procedure, and are reflected in popular custom and usage. To convince himself of the latter fact one has only to note how far below the head of tide and head of salt water our rivers continue to be named and described in the same terms applied to them farther inland. Legal usage is less widely appreciated, but it concerns us more because it represents a studied effort to describe facts and conditions with precision. Science seeks to determine abstract truths, while the law endeavours to apply those truths accurately and fairly to the solution of practical problems. In the question before us legal usage offers a useful commentary on the practical applicability of the scientific facts stated above.
Callis (1622), in his “ Treatise on Sewers,” states : “ A river, therefore, is a running stream, pent in on either side with walls and banks ; and beareth that name as well where the waters flow and re-flow, as where the waters have their current one way, as is expressed in the case of the piscary of the Banne in Ireland ” (4th Edition, 1824 95 (77) ). This definition was adopted by Woolrych in his “ Treatise on Waters ” (2nd Edition, 1851, p. 40). In the case of Gordon v. Moray (Mor. Diet. Dec. XV, 12 798) the House of Lords held that the ostium fluminis comprehended the whole space between the lowest ebb and the highest flood mark, a decision quoted in the House of Lords as authority in later cases. In Bowie v. Marquis of Ailsa (14 Ct. of Sess. Cases, 4th Ser., 667-8) Lord Young, concurring in the opinion of the
* See WHEELER, W.H. “Tidal Rivers,” Chapter V, for an account of many rivers along which the tide penetrate far inland.
Lord Justice Clerk, and referring to the River noon in Scotland, where the tides rise and fall, and the water is sometimes brackish throughout the area then in dispute, said : “I agree with Your Lordship that the River Doon is no part of the sea. It runs into the sea, but it is not the sea.” In the case of Vail v. McGuire (50 Wash., 190-1) the Court quoted and applied the modern meaning of estuary as given in the “ Century Dictionary ” — “ that part of the mouth or lower course of a river flowing into the sea which is subject to tides and specifically an enlargement of a river channel towards its mouth in which the movement of the tide is very prominent.” That a tidal estuary is a part of the river and does not belong with the sea is further indicated in the opinion of the Lord Chancellor in the case of Gammell v. Commissioners of Woods and Forests (3 Macq., Scotch App., 460), where Lord Chelmsford said : “ But the grants since the Union are many of them not capable of being referred to rivers or estuaries, because they are grants of fishings in the sea adjacent to lands 'upon the sea coast,' or 'upon the sea shore,' or 'along the sea coasts,' or 'lying along the sea coast.'”
In Scotland the placing of cruives and other machinery in the tidal lower portions of rivers, where the sea ascends and withdraws, and where certain fish, whether of the sea or of fresh water, descend and ascend, was prohibited by statutes dating back as far as 1318. These statutes have received judicial interpretation in several cases, among them two relating to the River Don in 1820 and the River Conon in 1839. In the Don case (Earl Kintore v. Forbes, 3 Wilson and Shaw App. Cas. 266) the House of Lords adopted the construction of the statutes stated by the Lord Chancellor, which held that they “ refer not the sea-coast but to rivers and continuations of rivers,” a decision later referred to as settled law by the Lord Chancellor in the River Conon case.
The presiding judge in this latter case (Horne v. McKenzie, McLean and Rob. Rep. 1839, 983-984) charged the jury in part as follows : “ Now, I have to lay it down to you, in the first place, that the statutes, as explained by decisions, make these machines unlawful, if they be placed in what is usually known as a river, in the ordinary sense of this word. . . . There are many rivers which only join the sea through a firth, or through a land-locked valley, where the fresh and salt waters meet. . . . If it (the valley space) shall be so fully and distinctly occupied by the flowing fresh waters, as that it is really a river, though the common river features may be periodically effaced by the tide, it comes under the preceding rule—that is, being still a river, these machines are unlawful. Moreover, rivers have estuaries ; that is, spaces intermediate between the strictly proper river and the strictly proper sea. Through these partly fresh and partly salt estuaries, though its ordinary river features may be impaired, or at high tides even obliterated, the river still does in truth exist and operate. . . . The estuary is a part of the river.” On appeal seven judges united in a written opinion holding that :
“ If in such an estuary, there is absolutely no sensible admixture of
fresh water whatever, when the tides are ebbing and flowing . . . . we can scarcely conceive a more decided proof that an estuary of such a description could not be considered as a river, in the sense of the law referred to. On the other hand, if, during the ebbing and flowing of the tides, and in the average condition of the waters, the fresh water actually predominates, or forms more than a half of the whole, it seems almost as difficult to hold that such an estuary could ever be regarded as the sea, or an arm or branch of the sea.” These judges pointed out, however, as had the Judge of first instance in the case, that in determining what was sea and what was river, the proportion of salt water was but one among many factors which must be considered. Thus, they would hold that a river does not lose its character as such merely by being met by the advancing tide, provided (1) that this be within what are called the jaws of the land, and provided (2) that the relative size of the river, and (3) the other circumstances, would satisfy a jury that on the whole the space is river, including in this term its estuary. Lord Moncrieff concurred in part of the foregoing opinion, but qualified his concurrence by holding that the absence or prevalence of fresh water was not a proper test as between sea and river. The Judgment of the House of Lords was delivered by the Lord Chancellor, who said, among other things : “ I see nothing in the statutes, or in any authority, to justify the putting the legality or illegality of the act upon such a test ; and on principle there is nothing to support it. If this were the test, the legality of the act at any particular place would depend upon the state of the tide, and the right of fishing would belong to one party at high tide, and to another at low tide. Suppose a small river flowing into a large estuary, at low water there might at any particular place be scarcely any salt water, whereas at high water the presence of fresh water might be scarcely perceptible. Whereas in a large river the fresh water might predominate long after the junction with the sea. The large rivers of America are perceptible at a great distance from the shore, and in the Mediterranean ships take in their water from the Rhone in the open sea. The test suggested is therefore, I think, erroneous, whether it be treated as exclusive, or as an important ingredient in the consideration of the question.” The Lord Chancellor then suggested that a proper test might be to determine the point where the river reaches the level of the sea at low tide. Down to this point all would be river ; beyond it would be sea. “ Down to the point of low tide the waters descend, but no further. Into these waters the sea rises, and the fish ascend, which cannot be said of any part beyond that point.” *.
Under the Reciprocity Treaty between Great Britain and the United States (Washington, 1854) it became necessary to determine what were properly rivers and what were arms of the sea, since certain fishing rights under the Treaty applied only to the sea fishery “ all fisheries in rivers and the mouths of rivers” being reserved in a different category. The Umpire
* Horne v. McKenzie, McLean and Rob., Rep. 1839, 989, 992, 1014, 1015, 1016.