| OCR Text |
Show 46 ( merce" merce ) in any reasonable sense of the term . . That the water stands permanently , and that it has a deep opening into Lake Erie , , does not establish that this shallow body of water is capable of sustaining commerce , or is burdened with a public use . It is nothing more or less than a marsh opening into the lake . To be navigable in law , it must be navigable in fact ; that is , capable of being used by the public as a highway for the transportation of commerce . None of the characteristics of commercial navigability are shown here * . It is the natural feeding ground of the duck and other waterfowl . In their pursuit by canoe and ( flat-bottomed flatbottomed ) ducking boats the water may be navigated . That is not commerce , and proves nothing . The same test would ( con- con ) vert every pond and swamp capable of ( float- float ) ing a boat into a navigable stream or lake . This bay is not a highway , never has been , and never can be . At the common law the term ( navigable" navigable "navigable" navigable ) had a technical meaning and was applied to all streams or bodies of water in which the tide ebbed and flowed . All such waters were public . That ( defini- defini ) tion is not applicable in this country , and all waters are held ( navigable navirrable ) in law , and ( sub- sub ) ject to a public use , ( which-are whichare ) by their ( char- char ) acter capable of use as highways ; for ( pur- pur ) poses useful to trade or agriculture . It is the capability of being navigated for useful purposes , which is the , test . See Appendix to this brief , page 203 , for boats operated on the waters in question . |
