OCR Text |
Show 44 irxogular traffic , in times of high water only , employing Indian canoes , ( "dug-outs" dugouts ) ( and- and ) at certain times small steamboats and ( gaso- gaso ) line launches . In this state of the evidence , the trial court could not , nor can we , take judicial notice of the stream as being navigable in fact ; especially in the face of a declaration by the legislature of the State that it is not navigable . A previous opinion in this case is reported in 228 U . S . 243 . IrfHarrison v . File , 148 Fed . 781 , 784 , the Circuit Court of Appeals for the Eighth Circuit , speaking through Judge Hook , said : * * Mere depth of water , without profitable ( utilit3r utility ) , ( will iviH ) ( not -not not ) render a watercourse navigable in the legal sense , so as to subject it to public servitude , nor will the fact that it is sufficient for pleasure boating or to enable hunters or fishermen to float their skiffs or canoes . To be navigable a watercourse must have a useful capacity as a public highway of transportation . Of the evidence the court said ( p . 787 ) : * * Witnesses testified that in times of high water there had been no successful ( naviga- naviga ) tion of it in recent years , except with a gaso ¬ line launch drawing but a few inches of water , and with canoes , skiffs , and dugouts of the hunters and fishermen ; that it is not being used to float the products of the fields and forest to market , , and can not be profitably and successfully used for that purpose . . The stream - was held not navigable . . |