
    The Executors of Aaron Cates vs. Jesse Wadlington.
    There is no legislative act in this state declaring which, or whether any, of our rivers are to bfe considered as public or navigable.
    The rule of the English common law, that no river is navigable except where the tide ebbs and flows, is not applicable to this country;  but that cannot be considered a navigable river, the natural obstructions of which, prevent the passage of boats of any description whatever.
    A river that is merely capable of being made navigable is considered, as respects the owners ot the adjacent lands, as a mere imaginary line, the claim of each extending to the center of the bed, (~usque adfilum aguce. J But an individual has not such an exclusive right to a river which is capable of being made navigable, that the legislature may not declare it to be a public highway, whenever the obstructions are removed, and it becomes fit for public use.
    The public may use the waters for the purpose of navigation ; but that does not imphir thé right of the individual to the soil and use of the water, as far as is consitent with the right of the public.
    A purchaser must be supposed to know as well as the seller what right and title an individual can have to a navigable river. 
    
    Newberry, Spring Term, 1822.
    This was an action of debt on bond. Defence, a failure of coiisideration in part, for which the defendant was entitled to a deduction. •
    It appeared in evidence, that Aaron Cates, in his life time, was seized and possessed of a tract of land, lying on both sides of Enoree river, which by his will, he directed bis executors to sell. Pursuant to the will, they had the land divided and sold in several lots. The defendant purchased and received titles for one lot or tract, lying on the north east side of the river. The words of the deed, or so much of it as it is necessary to notice, are as follows : “ do grant, bargain, sell and release unto Jesse Wadlington, all the right and title, which the said Aaron Cates had at the time of his death, in and to all that tract or parcel of land containing four hundred and forty three acres, (more or less,) situate in the district aforesaid, on the north east side of Enoree river; and hath such shape, metes and bounds as by a reference to a resurvey plat thereof, hereto annexed, appears.”
    Annexed to this deed, was a plat which was represented to include one half of the river. At the bottom of the plat, was a certificate of a surveyor in the following words : u I have admeasured and laid out to Jesse Wadlington, a tract of land containing 443 acres, including one half of the river ; it being parts of several tracts granted, &c. situated in Newberry district, on Enoree river; bounded by lines running N. W, and N. E. on James Wadlington's land ; N. W. and N. E. and E. on said land, See. W. on part of said Cates land to the river, thence with the river as boundary to the beginning.”
    The bond in question was given for the purchase money of this land. It was contended on the part of the defendant, that the plat by reference became a part of the deed. And that by platting in one half of the river, the plaintiff had undertaken to convey it. That the river Enoree, was capable of being made navigable, though it was admitted that at present it was not so. And that rivers capable of being made navigable, are not subjects of grant nor private property. The defendants, therefore, were entitled to a deduction for the number of acres of river included in the plat.
    The jury, under the direction of the court, found a verdict for the plaintiff, for the whole amount of the bond.
    This was a motion for a new trial on the following grounds ;
    
      1st. That streams capable of navigation, or which may be made navigable, are not the subject either of grant or private property.
    2nd. The plat and deed taken together, did convey to the defendant, one half of the river.
    3rd. Misdirection of the court, on the two first grounds, and in further deciding that the right of private property may be acquired and held in streams susceptible of being made navigable, until the state actually makes them navigable.
    4th. If the deed did not convey one half of the river, yet as it appears the number of acres covered by the water was computed in the plat, and the discount was for the amount of the value of land covered by the water, it ought to be allowed either as a discount, or on the merits as a plain obvious mistake.
    
      
      
         See Carson vs. Blazer, 2 Binn. 475; or Wharton’s Dig. Tit. Land, 11.
    
    
      
      
         “ Warrandice,” (warranty) says Erskine, (Law of Scotland, B. 2, Tit. 5, Sec. 12,) “ cannot extend to burdens which may affect the subject after the grant, whether they shall arise from misfortune, (e. g, inundation,) or from statute .- For the receiver, as he has the whole benefit arising from its improvement after that period, must run all the hazards of its deterioration. Nay, this doctrine holds where the supervening bunh.-n is imposed under the authority of a public law, prior to the grant, unless the receiver, who is presumed to 1,-ntnv the burden which by law. may be imposed on the subject, has taken care to secure himself ag.únst it by express warrandice.” See note c. to Bond vs. Qualtie bamn, infra, It.
    
   Mr. Justice Nott

delivered the opinion of the court.

We have no legislative act declaring which, or whether any of our rivers are to be considered as public or navigable rivers. In England, it appears that by the rules of the common law, no river is considered navigable, except where the tide ebbs and flows, (Davie's Reports, 152, 157.) But that rule will not do in this state, where our rivers are navigable several hundred miles above the flowing of the tide. And there are some rivers in England, (as lord Hale expresses it,) “ whether they are fresh or salt, whether they flow or reflow or not, are prima facie publici ju-ris, or public higways, &c.” (Hargraves Law Tracts 9.) T[ie same author observes thatfresh rivers, of what kind soever, do of common right belong to the owners of the adjacent soil ; so that the owners of each side, have of common right the propriety of the soil, and consequently the right of fishing usque adfilitm aqua. (Do. 5. Carter et al. vs. Murcotet al. 4 Burrows, 2162.) And although we cannot define by technical terms, what constitutes a navigable river in this state, yet I presume we may venture to say that cannot be considered a navigable river, the na-tura! obstructions of which prevent the passage of boats of any description whatever. Nothing more is contended for on the part of the Enoree river, than that it is capable of being made navigable, but not that it is so now. It must, therefore, be considered as respects the owners of the adjacent lands, as a mere imaginary line. The claim of each extends to the centre of the bed ; and cujus est solum ejus est usque adcoelum. If, therefore, the plaintiffs had actually conveyed one half of the river in so many words, they would not have conveyed more than they were entitled to convey. But the deed in this case, is cautiously drawn. It contains no warranty; and the plaintiffs have conveyed nothing but the right and title which the testator had at the time of his death.

I do not mean to say that an individual has such an ex-slusive right to a river which is capable of being made navigable, that the legislature may not declare it to he a public highway, whenever the obstructions are removed, and it becomes fit for public use. The public may use the waters for the purposes of navigation ; but that does not impair the right of the individual to the soil, and the use of the water as far as is consistent with the right of the public.

But admitting this to be a navigable river, I am not prepared to say it would affect the relative rights of these parties. I have already remarked that this deed contains no covenant of warranty. The plaintiffs have conveyed nothing more than the right and title which the testator had at the time of his death. And a purchaser must be supposed to know as well as the seller, what right and title an individual can have to a navigable river.

The defendant purchased by certain metes and bounds; he is therefore entitled to all within those metes and bounds. If the river be a part, he is entitled to all the interest which the testator had in it, and no more. The testator had a mill on the river. The defendant has had the quiet possession and enjoyment of it. He still continues to enjoy it, and is not likely to be disturbed.

O'Neall Si? Johnson, for the motion.'

Bausketi, contra.

I liave considered all the grounds of defence together, without a particular refeience to each. And I atn r.atis-iied that the motion ought not to prevail.

The motion must be refused.

Justices Colcock, Richardson, Huger and Gantt, concurred.  