land, under the act of 1796, conferring on lot-owners in the city of Baltimore fronting on the water the right to make improvements in the water, it is held that such owners, while not having a technical fee in the submerged land, are entitled to the franchise and a perpetual use of the land for the purpose of erecting and keeping up the improvements.111 But on the other hand, in some states, great stress being laid upon the state's ownership of the land under navigable waters, it is denied that the riparian owner has any right or license, positive or implied, to reclaim or occupy below the line which marks the limit of his estate in fee. And as a consequence of this doctrine it is held that if land is made by a stranger, by filling in earth in front of the estate of a riparian owner, from low water mark into the stream, and wharves and docks are built thereon, the riparian owner cannot maintain ejectment for such property.112 And in New York it is said that where one, without right, enters on and fills up land under navigable water, thereby raising it above the water, he acquires no title to such land, and is not an "adjacent owner" under the statute giving to such owners a preferential right to purchase the flats.113 § 232. Preferential right to purchase. In some states, as in New York, it is provided by statute that lands under the navigable waters may not be granted by the state "to any person other than the proprietor of the adjacent lands." And this, it is held, refers to the proprietors of the adjacent uplands.114 Where a riparian owner conveys his land, he cannot reserve any right to the adjacent land under the water, of which he has received no grant from the state, but the grantee becomes the riparian owner, and as such is entitled to apply to the state for a grant of the land under the water.115 But the conveyance of land for a railroad right of way, partly above and partly below high water, along the bank of a river, by one owning the adjacent uplands, does not destroy the grantor's character as riparian owner so that a patent may not issue to him, as the owner of adjacent land, for the land lying next under the water.116 In North Carolina, the code excepts from entry lands covered by navigable streams, but with a proviso "that persons owning lands on any navigable sound, river, creek, or arm of the sea, may, for the purpose of erecting wharves on the side of the deep water thereof, next to their own land, make entries of the land covered by water adjacent to their own, as far as the deep water, and obtain title as in other cases." And it is held that this was not intended to wrest from the riparian owner any rights he already had, but only to allow him to acquire an absolute instead of a qualified property.117 115 Blackslee Manuf. Co. V. Blackslee Iron Works, (N. Y.) 29 N. E. Rep. 2. 116 New York Cent. R. Co. v. (494) Aldridge, (N. Y.) 32 N. E. Rep. 50. 117 Bond v. Wool, 107 N. Car. 139, 12 S. E. Rep. 281. CHAPTER XIV. LITTORAL RIGHTS. [By the Editor.] § 233. "Tide-lands" defined. 234. Meaning of the terms "shore" and "beach." 235. High and low water mark. 236. Seashore as a boundary. 237. Title of United States to tide-lands of territory. 238. State's ownership of shore and flats. 239. Nature of state's title. 240. Grant by state of tide-lands to private owner. 241. Preferential right of littoral owner to purchase. 242. Location of scrip on tide-lands. 243. Public right of navigation. 244. Rights of littoral owner in general. 245. Right of access to water. 246. Same; cases denying right of access. 252. Right to accretions. 253. Rights of fishing. 254. Severance of riparian rights. 255. Determination of boundaries as between adjoining owners. $233. "Tide-lands" defined. The term "tide-lands," which is now constantly and familiarly used on the Pacific coast, is not a technical term of the common law. It appears to have been first employed in a statute of California, enacted in 1861, entitled "An act to provide for the sale of marsh and tide lands of this state." But its precise meaning has been fixed by the courts with very little difficulty or difference of opinion. It means such lands as are periodically cov ered and uncovered by the rise and fall of the ordinary tides on the sea-coast or in a bay, estuary, or arm of the sea. It is never understood as including any land which is permanently submerged by the waters of the ocean or the bay. The term has been adopted, in legislative and judicial use, in Oregon and Washington, where it bears precisely the same meaning. Thus, in the former of those states, it is said that the phrase "tide-lands" applies to lands covered and uncovered by the ordinary tides, which the state owns by virtue of its sovereignty, and thus corresponds with the shore or beach, which at common law is that land lying between ordinary high and low water mark. It must be such land as is alternately covered and left dry by the ordinary flux and reflux of the tides. Lands adjacent to navigable waters, where the tide flows and reflows, come within the description. But it cannot be said to apply to lands which are covered with water the greater part of the year.2 So it is ruled that an isolated sandbank, alternately covered and exposed by the tides, which is situated in the Columbia river a mile from the Oregon shore, and entirely disconnected from the main land, is not "tide-land," within the proper meaning of that term.3 § 234. Meaning of the terms "shore" and "beach." These two synonymous terms are frequently employed in legislative and judicial language, as well as in conveyances between individuals where the sea is intended to be given as a boundary. Their meaning is now clear and well fixed. By the civil law (and the modified form of it in 'People v. Davidson, 30 Cal. 379; Rondell v. Fay, 32 Cal. 354; Walker v. State Harbor Comm'rs, 17 Wall. 648; Walker v. Marks, 2 Sawy. 152. 2 Andrus v. Knott, 12 Orez. 501, 8 Pac. Rep. 763. Elliott v. Stewart, 15 Oreg. 259, 14 Pac. Rep. 416. force in Louisiana), the shore of a sea or bay extends as far up as the line marked by the highest tide in winter.4 But by the common law the dividing line between upland and shore is marked by the advance of the ordinary flood tide; that is, it does not extend as far up as the line reached by the waters under the stress of storms or at the period of the spring tides. Thus, in an early Massachusetts decision it was said: "The seashore must be understood to be the margin of the sea in its usual and ordinary state. Thus when the tide is out, low water mark is the margin of the sea, and when the sea is full, the margin is high water mark. The seashore is therefore all the ground between the ordinary high water mark and low water mark. It cannot be considered as including any ground always covered by the sea, for then it would have no definite limit on the seaboard. Neither can it include any part of the upland, for the same reason. This definition of the seashore seems to result necessarily from its nature and situation."5 As for the term "beach," it is considered by the courts as the exact equivalent of "shore." Thus it is said that this word, "in its ordinary signification, when applied to a place on tide-waters, means the space between ordinary high and low water mark, or the space over which the tide usually ebbs and flows. It is a term not more significant of a sea margin than 'shore;' and bounding on the shore' does not include the shore." Whence the court concluded that "bounded westerly by the beach" would not include the land between high and low water mark. • City of Galveston V. Menard, 23 Tex. 349; Civil Code La., art. 451. Storer v. Freeman, 6 Mass. 435. See, also, Providence Steam Engine Co. V. Provi LAW W. R.-32 dence & S. Steamship Co., 12 R. I. 348. Niles v. Patch, 13 Gray, 254. See, also, Doane v. Willcutt, 5 Gray, 355; Hodge v. Boothby, 48 Me. 68. (497) |