124 BINNEY'S CASE.

manner, and to the same extent, (p) But, I apprehend, that the
proof of a few such instances, in which small boats have been
dragged up against the stream, through a portion of it, would not
be deemed sufficient to give it the character of a navigable highway.

The Thames and the Severn, two of the largest rivers of Eng-
land, which perhaps do not together pass a volume of descending
water more than equal to that of the Potomac, are still deemed
navigable streams above tide; and that, because although their
currents may be rapid and their swells considerable, they are ordi-
narily navigated with so much ease and safety both up and down,
that for time immemorial, and long before there was any such
thing as a navigable canal in that country, there were towing paths
along spaces of their margins, recognized by custom and by sta-
tute law, by means of which boats were drawn along by men or
horses, (q)

Compared with those gently flowing streams the Potomac is a
torrent; collecting its waters far west, from the rude mountain and
high plashy glades; and swelling occasionally from fifteen to thirty
feet, comes tumbling down through rocks abrupt, in a manner
throughout, and at all seasons with a speed, and in some places
with a headlong pitch, that holds in utter defiance everything like
navigation; except it may be in a few calm spaces. The docu-
ments, surveys, and plots submitted in this case exhibit the charac-
ter of this river, in these respects, in a very striking point of
view, (r) I, therefore, cannot think, that it was originally regarded
as a navigable river through any portion of it, above tide, until it
had been expressly recognized and declared, to some extent, to be
so by a positive legislative enactment; (s) but even a navigable
river is not a highway in the most extensive sense of the term, (t)

The act incorporating The Potomac Company seems, however,
to be conclusive as to this point; it is entitled 'an act for establish-

(p) In a report made on the 30th of January, 1827, by a committe to the House of
Representatives of Congress, No. 90, page 27, it appears, that John Balendine, in a
communication published in 1773, says, he had had an experience of more than fif-
teen years in transporting merchandize up and down the river. And in page 73 of
the same report, it is said, that the Ohio company of Maryland and Virginia in 1749,
used the river for transportation.

(q) Hale de Port. Maris 86; Nicholson w. Chapman, 2 H. Blac. 254; Miles v.
Rose, 1 Com. Law, Rep. 240.—(r) 'The Potomac is the most rapid of the great atlan-
tic rivers,' per Gallatin's Rep. 1808, page 31.—(s) 1768, ch. 5; 1806. ch. 79.—
(t) Buszard v. Capel, 13 Com. Law, Rep. 379; Palmer v. Mulligan, 3 Caine's Rep.
307; Shaw v.Crawford, 10 John. Rep. 237; Hooker v. Cummings, 20 John. Rep. 90.