reason of such ownership on the part of the state, is the right of navigation. Of this right we shall have more to say hereafter. But there are also certain other rights which are free and common to the general public, when the state owns the bed of the stream, from which they would be excluded if the land under water were the private property of the abutting owners. Such is the right to take fish, ice, and the other fruits or products of the waters. In Connecticut, for example, it is ruled that the right to gather sea-weed growing on the bed of a navigable river, below low water mark, belongs to the public, and not exclusively to the riparian proprietor.49 And in a case in Pennsylvania, where the action was for the value of a lot of paving-stones alleged to belong to the plaintiff and which had been carried away by the defendant, the latter attempted to show that the articles in question were the property of the state, because they had been gathered out of the Delaware river, but it was held not a valid defense.50 In an English case it was ruled that there is no common law right to bathe in the sea.51 But this decision has been much criticised, and it is not generally accepted as good law in this country.52 It must be observed, however, that all these rights of the general public must be exercised without trespassing in any manner upon the rights or the property of the riparian owners.

§ 223. Rivers as boundaries between states.

Where a navigable river flows between two states, the dividing line of their territorial jurisdiction may be co

incident either with the middle thread of the stream or with one or other of its banks. This will depend upon the definition of their respective boundaries, as fixed by treaty, organic act, or otherwise. Where a power possesses a river and cedes the territory on the other side of it, making the river the boundary, the rule is that that power retains the river, unless there is an express stipulation for a relinquishment of the rights of soil and jurisdiction over the bed of such river.53 But generally, in this country, the determination of the limits of interstate jurisdiction is to be made by reference to the acts of congress authorizing the formation of new states. Thus, by the acts of congress providing for the organization and admission of Illinois and Missouri as states of the Union, it was declared that the western boundary of Illinois and the eastern boundary of Missouri should be the "middle of the main channel of the Mississippi river." And in all such cases as this the two states have concurrent general jurisdiction over the river, and each has exclusive territorial jurisdiction over that portion adjacent to its own shore.54 Thus, the question whether a riparian owner holds the fee to the middle thread of the stream, or only to high or low water mark, is governed by the municipal law of the state wherein his land lies, and the two states, on opposite sides of the river, may establish different rules in this respect.55 But as to the river itself, the authority of each state is limited to the protection of its own shores and harbors, without

53 Howard How. 381. "City of St. Louis v. Rutz, 138 U. S. 226, 11 Sup. Ct. Rep. 337; Handly V. Anthony, 5 Wheat. 374; Carlisle v. State, 32 Ind. 55; McFall v. Comm., 2 Metc. (Ky.) 394; Blanchard

V. Ingersoll, 13

v. Porter, 11 Ohio, 138; Howard v. Ingersoll, 13 How. 381; Keator Lumber Co. v. St. Croix Boom Co., 72 Wis. 62, 38 N. W. Rep. 529.

City of St. Louis v. Rutz, 138 U. S. 226, 11 Sup. Ct. Rep. 337.

interfering with the opposite shores or the common rights of navigation. And the state has no power or right to inflict injury on the riparian proprietors on the other side of the river, as by erecting dikes or other structures, for the protection of its own shore, but which deflect the cur. rent of the river and cause the erosion of the lands of such proprietors.58

§ 224. Navigable stream as boundary.

Patents by the United States of land bounded by streams and other waters, in the absence of reservation or restriction of terms, are to be construed, as to their effect, by the law of the state in which the land lies. In Illinois, for instance, the common law being in force, a patentee from the United States of land there situated, bounded by the water of a small lake, takes to the center of the lake.57 In California it is held that, under a United States patent to lands bordering upon a navigable stream, the grantee, in the absence of an intent appearing in the patent to the contrary, does not acquire title to any land below high water mark.58 In Oregon and Nevada, it is held that where a stream is meandered in the public surveys, the stream, and not the meander line, forms the true boundary of the riparian proprietor.59 And where the government leaves a small island in a navigable river, lying between the shore and the middle of the stream, unsurveyed, and sells all the surveyed islands and all the lands on both sides of the river, without any reservation as to such

50 Rutz v. City of St. Louis, 7 Fed. Rep. 438.

57 Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. Rep. 808.

Packer v. Bird, 137 U. S. 661, 11 Sup. Ct. Rep. 210;

Wright v. Seymour, 69 Cal. 122, 10 Pac. Rep. 323.

50 Weiss v. Oregon Iron Co., 13 Oreg. 496, 11 Pac. Rep. 255; Minto v. Delaney, 7 Oreg. 337; Shoemaker v. Hatch, 13 Nev.

261.

island, the title will be held to have passed to the riparian owner.60 In Mississippi a grant of land bounded "by" or "on" a fresh-water stream, whether in fact capable of navigation or not, conveys the soil to the middle thread of the stream, including, of course, the shore between high and low water mark.61 And in Virginia, a conveyance of riparian lands by metes and bounds, which on the river side are substantially co-incident with high water mark, carries all the right of the grantor to the strip lying between high and low water mark.62 And it is held that where, upon a town plat, the only boundary for part of a street on one side is a navigable lake, the street extends to low water mark.63

§ 225. Public right of navigation.

In the case of navigable streams, both the riparian owner and the general public have rights, not necessarily inconsistent, but which must so limit and restrict each other as to secure the due recognition and full enjoyment of all. In the first place, the public have a right of navigating such rivers. And it follows that the riparian owner, even though he may own to low water mark, cannot be allowed to construct piers, wharves, or other structures, in such a manner as materially to interfere with the navigation of the stream. His title to the soil of the shore, or under the water, does not authorize him to obstruct in any way the free use of the river by the public as a highway. And even though he may own both sides of the stream, he cannot construct booms entirely across the stream, since such

Chandos v. Mack, 77 Wis. 573, 46 N. W. Rep. 803.

61 Steamboat Magnolia v. Marshall, 39 Miss. 109.

McDonald v. Whitehurst, 47

Fed. Rep. 757.

64

"Village of Wayzata v. Great Northern Ry. Co., (Minn.) 52 N. W. Rep. 913.

Sherlock v. Bainbridge, 41 Ind. 35.

booms would obstruct navigation.65 And the right to use a navigable river being a public right and not a private right, the riparian owner cannot maintain an action for an illegal obstruction of navigation which prevents his use of this public right. To entitle him to maintain a private action, the obstruction must constitute an invasion or violation of some private right, as distinguished from the public right which he has of navigating the river in common with the rest of the public.68 Thus, where the riparian owner had free access to the navigable channel in front of his land, it was held that he could not in his own name, maintain a suit to compel the removal of a bridge over such channel, half a mile from his land, though his boats, in navigating to and from adjacent waters, were obstructed by such bridge. And on similar principles, it is held that a person who has entered into a contract obligating himself to drive logs down a stream navigable for such purposes, knowing that the stream had been and was unlawfully obstructed, and who is hindered and subjected to expense in performing his undertaking, by reason of such impediments, is not entitled to maintain a private action for damages against the person creating such obstructions in the highway.68

§ 226.

67

Right of state to improve navigation.

As the state is the owner of the beds of navigable rivers, it does not divest itself of the right and power of improving the navigation thereof. In fact, the state may do everything to secure the full enjoyment of the public right

Stevens Point Boom Co. v. Reilly, 46 Wis. 237, 49 N. W. Rep. 978.

Swanson v. Mississippi & R. R. Boom Co., 42 Minn. 532, 44 N. W. Rep. 986.

67 Whitehead v. Jessup, 53 Fed. Rep. 707.

68 Brennan V. Lammers, (Minn.) 48 N. W. Rep. 766.