1. We are satisfied upon the evidence adduced that At the lanka in dispute the river Godavari is not a tidal and navigable river. It may in a sense be navigable, but the observations taken clearly show that it is not tidal. The evidence shows that at the point in question there is no ebb and flow of the tide, and no current up-stream at any hour. All that occurs is that, in consequence of the influx of the tide lower down the river, the flow of water down-stream is held back for a time and thus rises between its banks, though it continues to flow down. This is precisely what might be expected supposing that the influx of the, tide exercised any appreciable effect at all. It is shown that the place is about thirty miles from the sea and that the fall is about '? one foot per mile. The rise of the tide at Coconada, which is the standard post is only 3 1/2 feet ordinary tide and 5 feet at springs, so that it would appear almost impossible the tidal have should reach a spot thirty miles inland. We therefore accept the finding of the present District Judge that the river is not a tidal and navigable river at the point in dispute.
2. It remains to consider whether the findings of the late District Judge upon issues 1 to 4 can be supported. It is not denied that topographically the suit lanka falls within the limits of the plaintiff's village of Kapileswarapuram, if imaginary lines be drawn across the river. The late Judge, however, considered that fact immaterial, since he found that defendant's Tatapudi lanka was itself without those imaginary lines, and that the suit lanka was an accretion to the Tatapudi lanka. He held that under these circumstances the real point to be considered was what was the true nucleus of the accretion. Finding that the Tatapudi lanka was that nucleus, he decreed in favour of Government.
3. The whole case for the plaintiff rests upon the presumption of English law that the proprietor of each bank of a stream is considered prima facie as the proprietor also of half the land covered by the stream usqne ad medium filum acque, unless the stream be -tidal and navigable. In the present case the plaintiff contends that he is the proprietor of both banks and therefore entitled to the whole river-bed which at the spot in question is about four miles across. It is urged that this is, a natural presumption not?peculiar to England and that there is no reason why the presumption ahould not obtain in India. No doubt in England all rivers and stream above the flux and reflux of the tide are regarded prima facie as private rivers though subject to the public rights of navigation. But the distinction of the English common Law between rivers 'boatable' and rivers 'navigable ' has not been, universally recognised in all countries. We find the Courts of some of the States of Amercia have adjudged that this Common Law distinction does not apply to their large fresh water, rivers which are capable of being used as public highways far above where they are affected by tidal influence. In the States of New :.: York, Massachusetts, New Hampshire and others the Common Law distinction is recognised; but in Pennsylvania, South Carolina, Tennessee and Alabama it is not. (See Angell on Water Courses Chap. XII pp. 546 to 550). The Supreme Court of Ten-nesse observed:--
There are many rulesof action recognised in England as suitable which it would be folly in the extreme in countries differently located to recognise as law and in our opinion this distinction, between rivers 'navigable' and 'not navigable 'causing it to depend upon the ebbing and flowing of the tide is one of them. The insular position of Great Britain, the short courses of her rivers and the well-known fact that there are none of them navigable above tide water but for very small craft, well warrants the distinction there drawn by the Common Law. But very different is the situation of the Continental powers of Europe in this particular. Their streams are many of them large and long and navigable to a great extent above tide-water and accordingly we find that the Civil Law which regulates and governs these countries has adopted a very different rule.
4. Similarly it might be argued that rivers of the type of the Godavari and the Kistna do not exist in England. In character they are great sources of irrigation almost more than public highways, and over the great beds of irrigation streams in India the ruling power has always exercised a large control. It is no doubt recorded in the Godavari District Manual in the general descrip-tion of the District Chap. I. p. 5 that the constant changes in the river have been a fruitful source of litigation between the riparian proprietors, but we are not referred to any case in which as between the State on the one hand and the private proprietors -on the other, the question of the ownership of the bed of the stream has ever been judicially decided. We can only say that in our opinion great caution should be exercised in applying maxims and presumptions of English Law to a country in many respects so dissimilar.
5. Happily, however, we are not called upon the meagre evidence which has been adduced in the present case--to determine a question of such great and general importance. Even if the English presumption of law about river beds were to obtain in India, it would be a presumption only and like other presumptions rebut-table, (See Coulson and Forbes on Water Courses p. 94.) It also appears from the authorities that the soil of land covered with water may with the water and the right of fishing therein, be especially conveyed and appropriated to a third person whether he has land or not on the borders thereof or adjacent thereto. Marshall v. Inneswater 3 Best & Smith 732 Bristowe v. Cormission (1878) 3 App. Cases 668
6. In the present case the existence of a lanka belonging to Government in mid-stream would be sufficient to rebut the presumption. The origin of the Government title to that Tatapudi lanka does not appear to be material. It exists, and the suit lanka is an accretion to that Tatapudi lanka and it is not a sudden vertical accretion in the bed of the river. The well established rule is that where the acquisition of landis by gradual, slow, and imperceptible process, the accretion by alluvion belongs to the owner of the adjacent land. We see no reason why this rule should beheld to apply only to alluvion caused by the action of the sea or by the ebb and flow of water in tidal rivers. The gradual and imperceptible character of the accretion is the reason and foundation for the rule (Blackstone, Book II 262); and if the accretion had been a gradual one to the bank on either side, no one would doubt that it belonged to the riparian proprietor to whose land it was annexed. We are of opinion, therefore, that the principle on which the late District Judge (Mr. Boss) decided the case was correct and that the suit lanka is the property of Government. The appeal is dismissed with costs.