ance with established law, and, if necessary that it be taken for the public good, upon due compensation." 91 And further, riparian rights on navigable streams cannot be destroyed or materially impaired, by the state, in the construction of works of public improvement, without compensation made.92 It is held that the riparian owner may use the water flowing past his land for any purpose he pleases, so long as he does not impede navigation.93 And it follows that no private person can complain of the use to which he puts the water or the amount he takes, provided the public right of navigation is not impaired. Also the riparian owners may alter the channel of a stream by constructing dams and flumes, and diverting the water for manufacturing purposes, so far as such changes are possible without an infringement of the public right to such a free way as would be afforded by the river in its natural condition.94 And conversely, in a case in Oregon, where it concerned a small fresh-water stream, which was navigable for small boats and floating logs only a part of the year, it was held that the riparian owner was entitled to the aid of equity to prevent a diversion of the waters from their natural channel, and this notwithstanding that he did not himself use the water-power and had sustained but small pecuniary damage.95 The riparian proprietor has also a right to protect his land from a threatened change in the

91 Yates V. Milwaukee, 10 Wall. 497. See, also, Potomac Steamboat Co. v. Upper Pot. S. Co., 109 U. S. 672, 3 Sup. Ct. Rep. 445, and 4 Sup. Ct. Rep. 15; Bowman v. Wathen, 2 McLean, 376; Delaplaine v. Chicago & N. W. R. Co., 42 Wis. 214; Parker v. West Coast Packing Co., 17 Oreg. 510, 21 Pac. Rep. 822.

" Hollingsworth v. Parish of Tensas, 17 Fed. Rep. 109. See supra, § 226.

Morrill v. St. Anthony Falls Water-Power Co., 26 Minn. 222, 2 N. W. Rep. 842.

"Connecticut River Lumber Co. v. Olcott Falls Co., (N. H.) 21 Atl. Rep. 1090.

" Weiss v. Oregon Iron Co., 13 Oreg. 496, 11 Pac. Rep. 255.

channel of the stream by erecting along the border thereof a bulkhead as high as the original bank of the stream.96 It is held that the person entitled to the exclusive right to possess and use land abutting on a navigable stream, is also entitled to enjoy the riparian rights incident to the land, though he does not own the fee.97 As to the exact nature and extent of riparian rights on navigable streams, these may vary according to the legislation of the several states. The federal courts declare that the incidents or rights which attach to the ownership of property conveyed by the United States bordering on navigable streams, will be determined by the states in which the lands are situated, subject only to the limitation that their rules do not impair the efficacy of the grant or the use and enjoyment of the property by the grantee.98 Many of the specific rights of a riparian owner on a navigable stream are substantially identical with those enjoyed by an owner bounding on the seashore, and may therefore be more fully discussed under the general head of “littoral rights." The particular questions relating to the right of access to the water, fisheries, alluvion, etc., will be found treated in the succeeding chapter.

§ 230. Right to build wharves and landings.

In those states where, by the local law, the line of a riparian owner on a navigable stream extends to low water mark, it is held that the owner, being thus invested with title to the shore, and having the right to the exclusive use thereof, has also the right (unless restrained by law

* Barnes v. Marshall, 68 Cal. 569, 10 Pac. Rep. 115.

97 " Hanford v. St. Paul & D. R. Co., 43 Minn. 104, 42 N. W. Rep. 596.

98 Packer v. Bird, 137 U. S. 661, 11 Sup. Ct. Rep. 210; St. Louis v. Myers, 113 U. S. 566, 5 Sup. Ct. Rep. 640.

or ordinance) to establish a private wharf or landing thereon, and make reasonable charges for its use by those navigating the river. And the United States supreme court holds that riparian proprietors on streams navigable in fact have the same right to construct suitable landings and wharves, for the convenience of commerce and navigation, as riparian proprietors on navigable waters affected by the ebb and flow of the tide.100 In Wisconsin, the rule is that the riparian owner has the right to construct, in shoal water in front of his land, proper wharves and piers in aid of navigation, and, at his peril of obstructing navigation, through the water far enough to reach actually navigable water.101 In Iowa, the riparian proprietor of land situated outside of an incorporated town or city has a right to erect private wharves or landings on the shores, if they conform to the state regulations (if any) and do not ob struct the paramount right of navigation; but wharves erected within the corporate limits of any town or city must yield to the paramount right of the corporation, when granted by the law by which the corporation is created.102 On similar principles, it is held that those owning lands along floatable streams may lawfully, until prohibited by statute, construct in front of their land proper booms to aid in floating logs, but not so as to violate any public law or obstruct the navigation of the river by any method in which it may be used, or infringe upon the rights of other

Ensminger v. People, 47 III. 384; Chicago v. Laflin, 49 Ill. 172; Bainbridge v. Sherlock, 29 Ind. 364; East Haven v. Hemingway, 7 Conn. 186; Ryan v. Brown, 18 Mich. 196; Fry v. Campbell's Creek Coal Co., (W. Va.) 16 S. E. Rep. 796; Bond v. Wool, 107 N. Car. 139, 12 S. E. Rep. 281.

100 Railroad Co. v. Schurmeier, 7 Wall. 272.

101 Diedrich

v.

Northwestern R. Co., 42 Wis. 248; Cohn v. Wausau Boom Co., 47 Wis. 314, 2 N. W. Rep. 546.

102 Grant V. City of Davenport, 18 Iowa, 179.

riparian owners.103 On the other hand, in Pennsylvania, it is held that a riparian owner on the Delaware has no right to make any erection between high and low water mark without express authority from the state.104 And in Atlee v. Packet Co.,10 ,105 it was said that a pier erected in the navigable water of the Mississippi river, for the sole use of the riparian owner, as part of a boom for logs, without license or authority of any kind, except such as may arise from his ownership of the adjacent shore, is an unlawful structure. Such a structure, it was said, differs very materially from wharves and other like constructions made to aid and facilitate navigation, and generally regulated by city or town ordinances, or by statutes of the state, or other competent authority.

§ 231. Right to reclaim submerged lands.

In the state of Minnesota, it is held that the owner of land bounded on a navigable stream has the right, by virtue of his ownership of the bank, to enjoy free communication between his abutting premises and the navigable channel of the river, and may fill out into the river, beyond low water mark, to navigable water, so as to make the shore available for the uses connected with navigation, and to this extent he is entitled to the exclusive occupancy of the bed of the stream, subordinate and subject only to the rights of the public with respect to navigation, and such needful rules and regulations for their protection as may be prescribed by competent legislative authority; and such riparian rights are property, and cannot lawfully be taken for public use without just compensation.106 And

103 Stevens Point Boom Co. v. Reilly, 44 Wis. 295.

104 Tinicum Fishing Co. v. Carter, 61 Pa. St. 21.

105 21 Wall. 389.

106 Carli V. Stillwater Street Ry. Co., 28 Minn. 373, 10 N. W. Rep. 205; Brisbine v. St. Paul & S. C. R. Co., 23 Minn. 114.

also it is held, in the same state, that this right to reclaim and occupy the submerged lands out to the point of navigability, though originally incident to the riparian estate, may be separated therefrom, and be transferred to and enjoyed by persons having no interest in the original riparian estate.107 But inasmuch as the title to the bed of the stream is in the state, and the actual proprietary interest of the riparian owner extends to low water mark at the furthest, it is evident that such a right to fill in and occupy to the point of navigability must rest upon an implied license from the state. It is accordingly held, in the state. to which we have referred, that the establishment by legislative authority of a harbor or dock line in navigable waters is an implied grant to the owners of the adjacent upland of the right to occupy the land between low water mark and such line, title to which is in the state, and to build on or fill up the same so as to extend the upland to such dock line.108 And the same doctrine is recognized in Rhode Island and perhaps some other states.109 In New Jersey, although the title of the riparian owner on navigable water extends only to high water mark, it is held, in virtue of a local custom now having the force of established law, that the adjacency of the land of such an owner to the stream invests him with a license to fill in and dock out on the public domain in front of his land to such an extent as does not interfere with public rights, and this license, when executed, becomes irrevocable.110 So also in Mary

107 Hanford v. St. Paul & D. R. Co., 43 Minu. 104, 44 N. W. Rep. 1144.

108 Miller V. Mendenhall, 43 Minn. 95, 44 N. W. Rep. 1141.

109 Aborn v. Smith, 12 R. I. 373; Engs v. Peckham, 11 R. I. 223; Gerhard v. Comm'rs, 15

R. I. 334, 5 Atl. Rep. 199; Norfolk v. Cooke, 27 Gratt. 438; Guy v. Hermance, 5 Cal. 74; Eldridge v. Cowell, 4 Cal. 80. 110 New Jersey Zinc Co. V. Morris Canal Co., 44 N. J. Eq. 398, 15 Atl. Rep. 227.