Oregon,19 and New York.20 The contrary doctrine is announced in four other sea coast states, namely: Georgia, Massachusetts, New Jersey, and Washington.21

Courts have diverged very considerably in their interpretation of the exact character and extent of this trust. The true extent of the trust principle seems to be best set forth in the New York cases. An examination of the leading New York cases in point leads to the conclusion that there has been a shift in the judicial viewpoint, occurring late in the last century. Prior to this time the courts generally held that the title of the state in its submerged lands was complete and absolute, and that the state could grant such lands to whom, or for what purpose, it wished.22 In contrast with this earlier view, in recent years the New York courts have emphasized the trust character of the state's title, holding it to be subject to the people's use for navigation, commerce, and fishing.23 The trend of the recent cases

19Lewis v. City of Portland, 25 Or. 133, 35 Pac. 256 (1893); Rasmussen v. Walker Warehouse Co., 68 Or. 316, 136 Pac. 661 (1913); Monroe v. Withycombe, 84 Or. 328, 165 Pac. 227 (1917). In Bowlby v. Shively, 22 Or. 410, at 427, 30 Pac. 154 (1892) the court said, the state has the right to dispose of them in such manner as she may deem proper, as is frequently done in various ways, and whereby sometimes large areas are reclaimed and occupied by cities, and are put to public and private uses, state control and ownership therein being supreme, subject only to the paramount right of navigation and commerce. The whole question is for the state to determine for itself; it can say to what extent it will preserve its rights of ownership in them, or confer them on others." (italics are the writer's)

20Coxe v. State, supra note 12; In re City of New York, 168 N. Y. 134, 61 N. E. 158 (1901); Knickerbocker Ice Co. v. 42nd St. R. R. Co., 176 N. Y. 408, 68 N. E. 864 (1903); Matter of the Long Sault Development Co., 212 N. Y. 1, 105 N. E. 849 (1914); Appleby v. City of New York, 235 N. Y. 351, 139 N. E. 474 (1923).

21Georgia: Jones et. al., v. Oemler, 110 Ga. 202, 35 S. E. 375 (1899).

Massachusetts: Commonwealth v. Boston Terminal Co., 185 Mass. 281, 70 N. E. 125 (1903).

New Jersey: Woodcliffe Co. v. New Jersey, etc., R. R., 72 N. J. L. 137, 60 Atl. 44 (1905) but with the limitation that the state cannot grant all of the submerged lands, to the destruction of navigation and fishery.

Washington: Eisenbach v. Hatfield, 2 Wash. 236, 26 Pac. 539 (1891).

22 People v. Tibbetts, 19 N. Y. 523 (1859); People v. N. Y. & Staten Island Ferry Co., 68 N. Y. 71 (1877). In Langdon v. Mayor of New York, 93 N. Y. 129, at 156 (1883) the court said, "The right to grant the navigable waters is as absolute and uncontrollable (except as restrained by constitutional checks) as is its right to grant the dry land which it owns. It holds all the public domain as absolute owner, and is in no sense a trustee thereof, except as it is organized and possesses all its property, functions and powers for the benefit of all the people."

23 Saunders et. al., v. N. Y. C. & Hudson River R. R. Co., 144 Ñ. Y. 75, 38 N. E. 992 (1894); Coxe v. State, supra note 12. In In re City of New York, supra note 20, at 144, the court says, "The very implication of the trust upon which the state holds the tideway and tidewaters speaks of the definite purpose for which it was created. If the state may use the waterways for any purpose whatsoever, then it is no longer a trustee, but an irresponsible autocrat. If it may erect upon our tideways or tidewaters any kind of a structure that may be suggested by the whim or caprice of those who happen to be in power, it will be possible to destroy navigation and commerce by the very means designed for their preservation and improvement." But then the court adds, "If the trusteeship of the state exists only for the purposes above enumerated, it would seem to follow that when, in the exercise of its general right of eminent domain, the state appropriates the tidewaters to uses inconsistent with the trust upon which it is held, that is,

indicates that grants of land under navigable waters, whether tidal or non-tidal, depending on the view of the particular jurisdiction as to the proper test of navigability, are subject to the restriction that the grant must be for the public benefit, or at least not injurious to the public interest.24 While the state may, for the purpose of aiding navigation and commerce, make limited grants, any grant which will materially abridge the public rights of navigation and control of the waters is invalid. The general doctrine which seems to be established by the cases, which are not always easy to reconcile, is that although the state cannot abdicate general control over lands under the navigable waters of the whole state, or of an entire harbor or bay, or of a sea, lake or river, it may grant small parcels to individuals for purposes which may be consistent or inconsistent with the purposes of the trust, so long as the public rights are not materially abridged.25

In the principal case it seems that the taking of the land in question for park purposes, although on its face inconsistent with the trust under which the lands are held, can in no manner interfere with the public use of the neighboring navigable waters, nor in fact of the waters in question. It does not appear that any obstruction is to be placed thereon, the implication being, on the contrary, that the

to some use not for the benefit of navigation, compensation should be made to the riparian proprietor whose rights have been abridged or taken away." Does not this statement indicate that the state may violate its trust, but in so doing must make compensation to the riparian proprietor for his injured rights? Knickerbocker Ice Co. v. 42nd St. R. R., supra note 20; Matter of the Long Sault Development Co., supra note 20; Appleby v. City of New York, supra note 20. In re Water Front on North River, 205 N. Y. Supp. 56 (Sup. Ct. 1924). Contra: People v. Steeplechase Park Co., supra note 1. (but which authority the court in Appleby v. City of New York supra says is mere dictum). People v. Delaware & Hudson Co., 213 N. Y. 194, 107 N. E. 506 (1914). But this case has to do only with a small stream which, though tidal, was navigable only for small boats.

24 Forestier v. Johnson, 164 Cal. 24, 127 Pacific 156 (1912); State v. Gerbing, supra note 18; Coxe v. State, supra note 12; Matter of the Long Sault Development Co., supra note 20; Pacific Elevator Co. v. Portland, 65 Or. 349, 133 Pac. 72 (1913); Illinois Central R. R. v. Illinois, supra note 7.

25 The interest of the people in the navigation of the waters and in commerce over them may be improved in many instances by the erection of wharves and piers therein, for which purposes the state may grant parcels of the submerged land; and, so long as their disposition is for such purposes no valid objection can be made to the grants. But this is a very different doctrine from one which would permit abdication of the general control of the state. Such abdication is not consistent with the exercise of that trust which requires the government of the state to preserve such waters for the use of the public. The trust resting on the state for the public benefit can only be discharged by the management and control of the property in which the public has an interest and cannot be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or such as can be disposed of without any substantial impairment of the public interests in the lands and waters remaining. It is only by observing the distinction between grants of such parcels for the improvement of the public interest, or which, when occupied, do not substantially impair the public interest in the lands and waters remaining, and a grant of the whole property in which the public is interested, that the language of the adjudged cases can be reconciled. 59 L. R. A. 33n, at 44.

purpose is merely to secure and safeguard the outlook of the park upon the river. Neither is this a grant to an individual, but instead the city, exercising the rights and powers of the state by delegation, retains the title, though for a different purpose. Having the title, the city is still subject to its trust duty, and on principle it seems that it has no greater right than before to use or grant this land for purposes inconsistent with, or harmful to, the public rights. The decision of the court on this point seems to be correct, and in line with authority.

Although section 71 of the Greater New York charter, providing that "The rights of the city in and to its waterfronts, ferries, wharf property, lands under water,26 public landings, wharfs, docks, streets, avenues, parks, and all other public places are hereby declared to be inalienable," would render the city powerless to grant this property outright to an individual, it does not seem that a reasonable interpretation of the term "inalienable" would preclude the transfer of the property to another department of the municipal government for park purposes, particularly when read in connection with other sections of the charter.27 The argument of the dissent that the city has no right, by section 970 of the Greater New York charter, 28 to acquire lands under water for park purposes, while a technical objection, seems to lose its force when applied to the facts, for this is a mere transfer of the possession rather than an acquisition of any new property by the city.

Is the municipality entitled to compensation for its loss or damage sustained in the diversion of these submerged lands to park purposes? In holding that it is, the said compensation being assessed in part upon the abutting property owners, the court points out that if this land were not taken for this use, it might be leased for docks with a large resulting revenue, and for this loss the city should receive compensation in the same manner as a private corporation or individual. The dissent29 argues that the city loses nothing because the land under water is included within the boundaries of the park, and the property owners gain absolutely nothing thereby, and hence should not be assessed to compensate the city for the taking.

The cases cited in support of the decision on this point do not bear directly upon the question, which is somewhat novel, nor does it appear that there is any modern case directly in point. In general a municipality is entitled to compensation for its property taken in condemnation proceedings, there being no distinction between a municipal corporation and a private corporation or an individual in this respect. The basis upon which compensation is awarded is in general the loss or damage sustained, reckoned as of the time of the taking. Although in the principal case the title remains in the city,

26 Italics are the writer's.

27See New York v. D. L. & W. R. R., 237 N. Y. 398, 143 N. E. 234 (1924). 28Sec. 970: "The city of New York may acquire title. and sites or lands above or under water for bridges and tunnels, and sites or lands above or under water for all improvements of the navigation of the waters . . .".

29 At page 369.

it is clear, as the court points out, that the municipality has sustained a loss or injury in respect of its future possibilities of revenue from the lands in question. The extinction of this contingent revenue would logically furnish a basis for compensation, even though the disputed property is not in use at the present time. But compensation should be awarded only in an amount sufficient to cover the damage sustained, namely, the possible revenues lost, for the title and use in other respects remains in the municipality.

Probably it could not be said that there was no basis for classifying abutting property owners for special assessment to pay for the acquisition of the property right in question. The justification for the classification would be that such owners would receive some special benefit, such as would make that classification constitutional under the equal protection clause of the Fourteenth Amendment.30

In view of the above considerations the decision in this case seems to be correct both on authority and principle as regards the right to acquire the property in question for park purposes, and in the absence of clear authority, it seems correct on principle as to the city's right to compensation, and to levy an assessment to cover this payment.

Clifford C. Pratt.

30 BURDICK, THe Law of the American CoNSTITUTION (1922) §160.

A Bibliography of Early English Law Books. By Joseph H. Beale. Harvard University Press (The Ames Foundation, No. 2.) Cambridge, 1926. pp. viii, 304.

This volume, the second to appear under the auspices of the Ames Foundation, is a collection of the English law books published before 1600 which are now available, arranged primarily for the student of that period. It is not a work for bibliographers or librarians; it is not pretended that it is complete. It does not contain books written since 1600 concerning the period before that date; and it contains only the more accessible of the texts actually published before 1600. Mr. Beale has examined the texts available in twenty-five of the most prominent law libraries (the San Francisco County Law Library, the Huntington Library at San Gabriel, California, the Library of the Harvard Law School, the Morgan Library at New York, the New York State Library at Albany, the Columbia University Law Library, and the Library of Congress at Washington, in the United States; and eighteen British libraries), and collected and arranged them so as to form a ready and convenient key to the literature of the period. The treatment is excellent. The same material is repeated three times: classified first by subjects-that is, statutes, decisions, and treatises, with their proper subdivisions; second, by the printers; and third, in tabular form for quick reference. In the first part, enough of the title page and colophon is given to identify the text, and in case of slightly variant copies of the same work, the identifying characteristics are indicated. For the rest, only the number of pages is given-the size and nature of the book, the type, and the contents are omitted. In the second part, the same works are listed under the names of the printers, which are arranged alphabetically. The third part, the tabulation, contains all the information given in the two preceding parts, arranged in parallel columns: the name of the work, the printer, the date, distinguishing marks, and the libraries in which it may be found. An appendix contains a considerable number of woodcut facsimiles of title pages, colophons, etc. It is quite evident from this analysis that the work is not exhaustive: just how serious the omissions are would require research at least as profound as that of Mr. Beale to discover. There must be, of course, a vast number of texts in private collections and smaller libraries, as well as unprinted manuscripts, which are not included. But the material which has been included is excellently arranged, and is a useful and convenient manual of such texts as are readily available. The book will be very valuable to any student of the period. Eugene J. Conroy.

The Constitution at a Glance. By Henry H. Hazard and Margaret D. Moore. Henry B. Hazard, Washington, D. C.

This work consists of "a single sheet upon which is presented in colors, in substantially the words of the original text, an outline