The opinion of the Court was delivered by

The river is a navigable highway, in *487 w-hich all have an equal right. The defendant’s oyster boat and the plaintiff’s schooner are equal in this respect.

Yessels have a right to use a warp in getting in or out of the harbor, but this must be done in a way not to interfere with the rights of other vessels to the free navigation of the river.

The plaintiffs have a right to extend their warp across the entire channel of the river, if there were no vessels passing, but on the approach of another vessel it was their duty to take notice of such approach, and to lower their warp so as to give ample space in the ordinary trav-elled part of the channel for her to pass, and to give timely notice oí the space so left. They were not bound to slacken their warp so as to leave the entire channel free. The vessel approaching, on the receipt of such notice, ought to take her course in the part of the channel indicated by the notice. We do not mean to say the approaching vessel is bound, absolutely bound, to take such course. For if, on the receipt of such notice, she takes her course in a part of the channel other than that indicated by the notice, and this is done in the belief on the part of those in command, that there is depth of water over the warp sufficient to pass in the course taken, and an honest though mistaken judgment is exercised in the matter, without any design or intention of interfering with the warp, the approaching vessel would not be liable, should she under such circumstances get entangled in the warp, and, in order’to free herself from it, cut it, this being necessary for that purpose, and not done willfully or recklessly. But when the approaching vessel disregards the notice,[and takes her course in a part of the channel[different4[fromsthat indicatedeby it, the bur-then of proving this is done in good faith, on the part of those in command, will be upon the approaching vessel.

*488 The prima, facie presumption, under such circumstances, is, that the disregard of the notice was reckless or wilful; and in either case the approaching vessel would be liable for any interference with the warp or injury to it.

The burthen of proving the warp was slackened and timely notice given is on the vessel which uses the warp. But if no notice is given the approaching vessel, and those in command do not know of the space left, she is at liberty to take any course in the channel, and is not liable for interference with the warp under such circumstances, although in fact ample space was left her to pass in some portion of the ordinary travelled part of the channel.

Finding an obstruction extending across the channel, and knowing of no provision to pass without interfering with it, she would be justified in taking such course as those in command thought proper.

Whether, therefore, the charge of the Court of Common Pleas was correct or not, depends upon what the evidence was as to the fact of the rope being slackened and timely notice given, or knowledge of the fact by the defendant otherwise.

If the defendant had not notice or knowledge of the fact, the charge was correct; and after a careful examination of the testimony, a majority of the Court think there is not such evidence of the fact, as called on the Court to state the law to the jury applicable to such a state of the case.

The evidence negatives any notice being given from the schooner; those on board did not know of the approach of the defendant’s boat until the line was cut.

New trial denied.