over or in any port, road, roadstead, haven, harbor, navigable river, or navigable waters of the United States, under any act of the legislative assembly of any state, until the location and plan of such bridge or other works have been submitted to and approved by the Secretary of War, or to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of the channel of said navigable water of the United States, unless ap proved and authorized by the Secretary of War." And the twelfth section of the same act provides that "where it is made manifest to the Secretary of War that the establishment of harbor-lines is essential to the preservation and protection of harbors, he may and is hereby authorized to cause such lines to be established, beyond which no piers, wharves, bulkheads, or other works shall be extended or deposits made, except under such regulations as may be prescribed from time to time by him." § 220. Title of state to bed of stream. In England, the title to the alveus, or bed, of all navigable streams is vested in the crown. And anciently it was in the power of the king to convey this title to private persons at his mere will and pleasure. But this royal right was abridged by Magna Charta, so that it now requires an act of parliament to convey away this portion of the public domain. To these sovereign rights the several states succeeded upon the establishment of American independence. The shores of navigable waters and the soil under them were not granted by the constitution to the United States, but were reserved to the several states respectively.34 But the United States has the same right of ownership in the navigable streams of its territories. "Pollard v. Hagan, 3 How. 212. For if additions are made to the national domain by right of occupancy and discovery, the general government becomes both sovereign and territorial proprietor of all the country so acquired. And if new territory is gained by purchase, it takes all the rights of the ceding sovereign, and is absolute owner of the waterways, except in so far as it is bound to recognize private rights previously vested or is restricted, in this respect, by treaty stipulations. It may therefore be regarded as the settled doctrine of American law that the territorial sovereign, be it the state or the United States, is the owner in fee of the bed of all the navigable streams within its limits.35 But in the case of non-tidal rivers, the question of title to the bed of the stream, as between the state and the riparian owner, will depend upon whether the common law doctrine of navigability has been adopted or rejected by that state. By that doctrine, as we have already seen, "navigable streams" are those only in which the tide ebbs and flows.36 But, as has also been shown, this test has been discarded as inapplicable in a majority of our states, and navigability in law has been made synonymous with navigability in fact. In those states, therefore, the beds of all streams which are in fact navigable for purposes of useful commerce belong to the state, whether the water is salt or fresh, or whether or not it is affected by the rise and fall of the tides.37 35 Attorney General V. Stevens, 1 N. J. Eq. 369, 22 Am. Dec. 526; People v. Canal Appraisers, 33 N. Y. 461; Browne v. Kennedy, 5 Har. & J. 195; Pitkin v. Olmstead, 1 Root, 217; State v. Black River Phosphate Co., (Fla.) 9 South. Rep. 205; St. Louis, I. M. & S. R. Co. v. Ramsey, 53 Ark. 314, 13 S. W. Rep. 931; Green v. Swift, 47 37 People v. Canal Appraisers. 33 N. Y. 461; State v. Black River Phosphate Co., (Fla.) 9 South. Rep. 205; Lamprey v. Metcalf, (Minn.) 53 N. W. Rep. 1139. But some few of the states adhere to the rule of the common law, and in them the title of the riparian owner is correspondingly extended. Thus in Illinois, it is held that the Mississippi is not in law a navigable stream; and hence the title of a riparian proprietor whose lands are bounded by that river extends to the middle thread of the stream.38 In Iowa, on the other hand, the modern rule has been adopted, and it is there held that the bed of the Mississippi, and its banks to high water mark, belong to the state, and that the title of the abutting owner extends only to that line. This difference of doctrine produces some singular results. Thus, that portion of the great river which flows between the two states named is a "navigable water of the United States," is technically navigable on the lowa side, and is technically non-navigable on the Illinois side; and that half of its bed which lies adjacent to Illinois is owned by private persons, while the other half belongs to the state of Iowa. 39 But even in those jurisdictions where the common law rule prevails, the title of a riparian owner to the bed of a stream which is actually navigable is not quite so free and unrestricted as his ownership of land under water which is entirely incapable of being used for navigation. For it is subject to a public easement of passage. Thus in New Jersey, while it is said that the state has no jus privatum in the soil of the Delaware river above tide-water, yet the right of the riparian owners is subject to the public easement of navigation, and to such regulations of the waters by the legislature as the public right of navigation may require. As to the jurisdiction and power of the state over it, the river above tide-water is to be regarded as if 38 Middleton v. Pritchard, 4 Ill. 510; Ensminger v. People, 47 Ill. 384. 39 Barney v. Keokuk, 94 U. S. 324. it were navigable in law.40 And in an early case in New York, while it was stated that the riparian owner above tide-water takes to the middle thread of the stream, yet, if the stream is navigable in fact, the public have the right to use the waters as a highway for the passage of boats and vessels, and in conformity with this principle, the legislature may declare certain waters to be public highways, and regulate them in respect to the building of dams and in other similar regards.41 § 221. Limit of riparian owner's estate. Assuming the particular stream to be navigable,—either because it is tidal or because it is recognized by the local law as having that character,-it next becomes important to determine the dividing line between the property of the state, as owner of the bed of the stream, and the property of the adjoining upland proprietor. This line is fixed, in some states, at low water mark, in others at high water mark. In Pennsylvania, for example, the title of the riparian proprietor extends to low water mark; but in tidal streams, such as the Delaware and the Schuylkill, his title is subject to the public right of passage in vessels when the tide is high.42 In Massachusetts, by an ancient colonial ordinance, the title of owners of land adjoining all tidal waters extends to low water mark.43 In West Virginia, the proprietors of lands bounded on the Ohio river own the fee in the lands to low water mark; subject to the easement of the public in that portion lying between high and low water mark, with a right in the state to control the same, for the purposes of navigation and commerce, without compensation to the owner.44 In Minnesota, the state holds the title up to low water mark "in its sovereign capacity, in trust for the people, for the purpose chiefly of protecting the rights of navigation." 45 In Michigan, it is said that the ownership of land bordering upon Lake Muskegon carries with it the ownership of the land under the shallow water so far out as it is susceptible of beneficial private use, but subordinate to the paramount public right of navigation and the other public rights incident thereto.46 On the other hand, in Connecticut, Iowa, and Arkansas, the proprietors of lands bounded on a navigable river own the soil to high water mark and no further.47 And in Oregon, in the case of the Willamette river, it is ruled that the point to which the water usually rises in an ordinary season of high water is the true meander line, and forms the boundary of the title of the United States or its grantee.48 § 222. Incidents of state's ownership of bed of stream. The principal consequence of the retention by the state of title to the beds of navigable rivers is that they are perpetually secured in their character as public highways. And the most important right vested in the public, by "Barre v. Flemings, 29 W. Va. 314, 1 S. E. Rep. 731; Brown Oil Co. v. Caldwell, 35 W. Va. 95, 13 S. E. Rep. 42. 45 Miller V. Mendenhall, 43 Minn. 95, 44 N. W. Rep. 1141. Rice v. Ruddiman, 10 Mich. 125. "Chapman V. Kimball, 9 Conn. 38, 21 Am. Dec. 707; 48 Johnson v. Knott, 13 Oreg. 308, 10 Pac. Rep. 418. And see Moore V. Willamette Transp. Co., 7 Oreg. 355. |