This action involves the character of the water, whether navigable or non-navigable, in Cow lake, sometimes called Lake Meridian. The lake is meandered. Upon testimony taken in open court, together with a view of the premises by the trial judge, the lake was found and adjudged to be non-navigable. The state has appealed.
[1] The sole question in the case relates to the navigability of the water. "Navigability is always a question of fact." Proctor v. Sim, 134 Wash. 606, 236 P. 114. The lake is small, being spoken of in the court's findings as a "pond or lake being about a mile long and about a third of a mile wide. That the lake has no visible inlet and no natural outlet."
Soundings taken show depths of water from near nothing to the length of an oar, and, at other places reasonably near the center of the lake, seventy or *Page 59 eighty feet. Much of the shore line consists of swamp lands, with vegetation extending out forty or fifty feet into the water. The land surrounding the lake is logged off and divided into small ownerships, some for summer homes and others for permanent homes. Several of the owners have small speed or outboard motor boats, and others have, altogether, twenty-five or thirty rowboats, all of which are operated for pleasure. Three of the front lots are spoken of as summer resorts. There is no commerce on the lake, no transportation of passengers or freight for hire.
For all practical purposes, as we view all the evidence, taken in connection with the trial court's view of the premises and the findings made and entered by it, the character of the lake, its situation and surroundings are identical with the conditions and surroundings of Angle lake, which, in Snively v. State,167 Wash. 385, 9 P.2d 773, was held to be non-navigable.
The state practically admits this to be so, but contends, and asks us to hold, that the principle upon which that case was decided is unsound — such principle being stated in language quoted from Proctor v. Sim, 134 Wash. 606, 236 P. 114, as follows:
"Navigability is always a question of fact. Whether a body of water is navigable in the true sense of the word depends, among other things, upon its size, depth, location and connection with, or proximity to, other navigable waters. It is not navigable simply because it is floatable for logs or other timber products, or because there is sufficient depth of water to float a boat of commercial size. A lake which is chiefly valuable for fishing or for pleasure boats of small size is ordinarily not navigable. In order to be navigable it must be capable of being used to a reasonable extent in the carrying on of commerce in the usual manner by water. `Navigability in fact is, in the United States, the test of navigability in law; and whether a river is navigable in fact is to be determined by inquiry *Page 60 whether it is used, or is susceptible for use, in its natural and ordinary condition, as a highway for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.' Oklahoma v. Texas, 258 U.S. 574,66 L. Ed. 771. `Navigable waters mentioned in § 1, of article 17, of our state constitution include only such waters as are navigable for general commercial purposes.' Watkins v. Dorris, 24 Wash. 636,64 P. 840, 54 L.R.A. 199; Harrison v. Fite, 148 Fed. 781. To be navigable a lake must be so situated and have such length and capacity as will enable it to accommodate the public generally as a means of transportation. Griffith v. Holman,23 Wash. 347, 63 P. 239, 83 Am. St. 821, 54 L.R.A. 178."
In the nature of things, a rule of invariable application, like a straight edge, cannot be provided in these cases. We are satisfied in this respect with the holding in Snively v. State,supra, which approves, and is bottomed on, the En Banc decision in Proctor v. Sim, supra, and which may be spoken of as the Federal rule. We are not disposed to change or discredit that rule. It controls this case.
The judgment is affirmed.
MILLARD, C.J., TOLMAN, HOLCOMB, and MAIN, JJ., concur.