Gambar halaman

(237 N. Y. 117, 142 N. E. 437.) ment of this rule; that to do so is v. Thompson, 18 Cal. 11, 79 Am. too much like judicial legislation. Dec. 151), or, at least, by the line This is true where the law is clear. of medium high water between the Where it is unsettled the result of a monthly spring and neap tides. proposed rule may turn the scale. Atty. Gen. v. Chambers, 4 DeG. M. So with reference to such a body of & G. 206, 43 Eng. Reprint, 486, 23 water the ordinary rule is so im- L. J. Ch. N. S. 662, 2 Week. Rep. practical that we give weight to that 636, 18 Jur. 779, 17 Eng. Rul. Cas. consideration. Added, also, to the 555; New Jersey Zinc & I. Co. v. doubts that have been expressed by Morris Canal & Bkg. Co. 44 N. J. great judges, is the fact that the Eq. 398, 1 L.R.A. 133, 15 Atl. 227; claim has been often asserted by the United States v. Pacheco, 2 Wall. state to ownership of the land under 587, 17 L. ed. 865. And this is the water of these large lakes. A true, although every spring the number of such grants have been waters of tidal rivers may be made on Lake George, on Cayuga raised by floods, exactly as is the lake, on the east shore of Seneca case of inland lakes. On the lower lake, and even on Otsego lake. And Hudson the line of the state's ownerone of the commonest modes of re- ship is not defined by the annual butting a presumption as to title spring freshets rather than by ordiis continued acts of ownership by nary high tide. It is also well to rethe grantor. Further than that no member that under the assumption claim to the contrary seems to be we made we are dealing with an exmade by the appellants in the case ceptional case. The fact that this before us.

is so, the fact that the grantee may We will assume, therefore, that well desire complete and unrestrictthe grant of lot 86 did not carry ed access to the water, the fact that title to the center of Cayuga lake. where the shore of the sea is Even so, however, the question as to granted, the lower boundary probathe title of the land in dispute re- bly may not be restricted to the line mains unanswered. Precisely what of ordinary low tide, but to the line did the state grant and precisely at its lowest

at its lowest ebb (1 Farnham, what did it reserve? Where is the Waters, 228), may well be considprecise line of demarcation between ered in deciding what the state has the land retained and the land

granted. granted ?

In speaking of such boundaries on In passing upon this question we lakes, courts have frequently said must realize that there is no analogy that they run to high or law wabetween this lake, where the water ter mark. Usually exactly what is changes its level at uncertain and meant by these terms is not defined. irregular intervals, and the seacoast, Often the statement is made casually where daily the tide ebbs and flows, without examination, because not where the line of ordinary high and determinative of the case under dislow tide is fairly definite. Even cussion. Sometimes, as in Calhere the upper line is defined by ifornia, Washington, North and "ordinary” high tides. High spring South Dakota, and perhaps elsetides are not considered. Nor are where, it rests upon a local statute extraordinary tides caused by or Constitution. Sometimes it is storms. Nor are the tides which held that the bed of lakes is held by happen twice a month with the full the state in trust for the people and and change of the moon. The line is may not be granted. Therefore a governed by the neap tides (Hale, patent is given a narrow construcDe Jure Maris, chap. 6; Baird v. tion.

Many cases in the United Campbell, 67 App. Div. 104, 73 N. Y. States Supreme Court depend upon Supp. 617; Lowe v. Govett, 3 Barn. the law of the states in which the & Ad. 863, 110 Eng. Reprint, 317, 1 land is situated. Hardin v. Shedd, L. J. K. B. N. S. 224; Teschemacher 190 U. S. 508, 47 L. ed. 1156, 23 Sup. Ct. Rep. 685. Foreign cases endeavor to trace the line of cession are, therefore, to be cited with cau- by low water must fail. Such a term tion.

is only predicable of rivers within In fixing the boundary of such a the ebb and flow of the tide. The grant as the present, there are four word used was “bank.” Rivers have possible choices. We may take the banks, shores, water, and a bed, as line of extraordinary spring floods. all knew when the cession was made. We find, however, no support for By inspection the banks could be dethis position, and we pass it by. termined. It means those boundWe may take the line of vegetation aries which contained the water at or erosion. We do not think this its highest flow. This case, thereis satisfactory. No such rule pre- fore, seems to aid us little in decidvails upon the seacoast, where bar ing the meaning of the grant before ren sands or rocks often lie above us, except that possibly the distincthe reach of ordinary tides. So tion drawn between the "bed" of a it is with beaches of sand or grav- river and its "shores," meaning by el on these lakes, which do not the latter term that part of the rivsupport vegetation, yet which are er uncovered at low water, may be rarely or never covered with water. useful if what the state of New York The support of such a rule seems to retains is the bed of Cayuga lake. be rested largely on Howard v. Ing- In Houghton v. Chicago, D. & M. ersoll, 13 How. 381, 14 L. ed. 189. R. Co. the court, following the lowa In support of it are also cited Okla- rule, held that an abutter upon the homa v. Texas, 260 U. S. 606, 67 Mississippi took only to high-water L. ed. 428, 43 Sup. Ct. Rep. 221; mark, and it defined this mark, not Houghton v. Chicago, D. & M. R. Co. as determined by the highest point 47 Iowa, 370; Diana Shooting Club ordinarily reached by periodical v. Husting, 156 Wis. 261, 145 N. W. rises in June and September, but by 816, Ann. Cas. 1915C, 1148, and Re the edge of the bank,—the portion Minnetonka Lake Improvement, 56 of the earth which confines the river Minn. 513, 514, 45 Am. St. Rep. 494, in its channel. The rises that come 58 N. W. 295. In Howard v. Inger- from storms and melting snows soll the court construed the mean- should be disregarded. They are ing of language used in an instru- temporary and uncertain. But the ment by which the state of Georgia banks afford a certain line. They are ceded land from the "west bank” impressed upon the earth itself by of the Chattahoochee river to the the attrition of the river current. United States. This interpretation Certainly what the river does not was not aided, the court said, by occupy long enough to wrest from cases upon the rights of riparian vegetation is not river bed. All this proprietors holding under grants is clearly true. A river with a defrom a state having the entire fined current wears a bed which all ownership of a river.

The case

may see. A lake does not. No more was

of two sovereignties, than the sea may it be said to have dealing for a cession of country banks. In Matter of Lake Minnefrom one to the other with a river tonka Improvement, what was said between them, to be marked on a was entirely applicable to the case bank of it from which the ceded under consideration. Around the land was to commence. What, under lake were places where the banks such circumstances, did the word were steep and abrupt. Elsewhere “bank” mean? At the point in- were meadows where the land was volved the river was about 600 feet but slightly above the ordinary wawide, lying between abrupt banks 15 ter level and subject to periodicai or 20 feet high. Much of the year overflow. The court rejected the the water was confined to a channel claim that the state might, in aid of 30 yards wide, leaving exposed rocks navigation, raise the water so as to with sloughs between them. Any permanently cover these lowlands.


(237 N. Y. 117, 142 N. E. 437.) "While the property of a riparian in decisions called to our attention in owner," it is said, "on navigable or the courts of Maine, West Virginia, public waters, extends to ordinary Arkansas, Oregon, Oklahoma, and low-water mark, yet it is unques- Iowa, but some of these cases do altionably true that his title is not ab- so hold that such a grant as the pressolute except to ordinary high-water ent takes only to high-water mark, mark. As to the intervening space as so defined. All of them are imthe title of the riparian owner is material, therefore, unless we are qualified or limited by the public prepared to hold that the grant beright" of navigation, and the state fore us is limited by the high-water may prevent any use of it, even by line. Then, indeed, they might the owner of the land, that would in- assist us in deciding where that line terfere with this right. The court should be drawn. So the substantial then continues that high-water mark question remains as to what is the does not mean the limits of spring limit of such a grant in our state. Is floods or freshets, but only that point it the line of ordinary spring floods reached by the water for such a or the line of low water reached in length of time and so continuously the dry season? as to wrest it from vegetation. This While this court has never defimust be the principal test. In Diana nitely passed upon the question, the Shooting Club v. Husting it was heid current of opinion is that it is lowthat the public might fish or hunt water mark. In Canal Comrs. V. upon any navigable stream below People, 5 Wend. 423, appears a dicordinary high-water mark, and that tum by the chancellor that the commark was defined as that point on mon law does not apply to our large the bank up to which the presence of fresh-water lakes, but as to them the water is so continuous as to leave such a grant as the present takes to a distinct trace either by erosior, low-water mark. Such was the exdestruction of vegetation, or other press ruling in Champlain & St. L. easily recognized characteristics. R. Co. v. Valentine, 19 Barb. 484. No question of title was involved. The same ruling was made in Sweet Indeed, the court expressly declined v. Syracuse, 60 Hun, 28, 38, 14 N. Y. to decide whether the public might Supp. 421. While we reversed this enter below high-water mark upon case we made no criticism of this a strip which, by the recession of the particular statement. So, as to a water, becomes unnavigable or is private grant in Child v. Starr, 4 left uncovered. This was settled in Hill, 369. See also Chism v. Smith, the negative, however, in Doemel v. 138 App. Div. 715, 123 N. Y. Supp. Jantz, 180 Wis. 225, post, 969, 193 691. Similar statements have been N. W. 393, which case cites and ex- made by us. Halsey v. McCormick, plains the case to which we have 13 N. Y. 296; Wheeler v. Spinola, 54 referred. In Oklahoma v. Texas the N. Y. 377; Yates v. Van De Bogert, controversy was again as to the 56 N. Y. 526; Gouverneur v. Nameaning of a treaty which fixed a tional Ice Co. 134 N. Y. 355, 18 national boundary on the southern L.R.A. 695, 30 Am. St. Rep. 669, 31 bank of the Red river. Here in most N. E. 865, approving of Wheeler v. places there was a "cut” bank erod- Spinola to this extent; Geneva v. ed by the water. This was the bank Henson, 195 N. Y. 447, 465, 88 N. E. intended. Where no bank existed a 1104. It is true that some of these level was to be taken of the height cases refer to grants between indiof the water when it washed the viduals, but, as has been pointed bank without overflowing.

out, where the state conveys its unNone of these case, therefore, aid appropriated lands for a consideraus in the construction of the grant tion, its grants are to be construed before us. At most, some of them as would be such deeds. It is true, defined what is meant by high-water also, that in Sisson v. Cummings, mark. A similar definition is given 106 N. Y. 56, 12 N. E. 345, we expressly refrained from discussing bounded by the sea, that state treats the question, and that in People ex low water as the boundary of title. rel. Burnham v. Jones, 112 N. Y. They do not rest, however, upon any 597, 20 N. E. 577, we noted the con- such analogy. In support of the rule cession of both parties that the lir announced in the case cited, the of riparian proprietorship along opinion refers to the dictum of the Lake Ontario extends but to high- chancellor in 5 Wend., to 30 Me., water mark, but that concession, and to 28 Vt. even had we expressed approval of In view, therefore, of these deciit, which we did not, was immaterial sions, in view of the fair presumpto any question involved in the case. tion that it was the intention to give In scme of the cases quoted, the the grantee the benefit of the water statement as to low water may have wherever it may be, in view of the been made without particular con- fact that under the assumption we sideration of the question. In others have made we find an exception to it may not have been strictly neces- our general rule, which, so far as sary to the decision rendered. But possible, should be minimized, we even dicta repeated by many judges hold that under the under varying circumstances, while grant from the state grant runs to

low-water mark. not binding upon us, are most per- the grantee took to suasive.

low-water mark on Lake Cayuga. In other states we think the Whether in high water the public weight of authority is in favor of has not the right of navigation the same rule. State v. Korrer, 127 wherever a boat may float, we do not Minn. 60, L.R.A.1916C, 139, 148 N. decide. Nor do we decide whether W. 617, 1095; Peoria v. Central Nat. "low-water mark” means that mark Bank, 224 Ill. 43, 12 L.R.A.(N.S.) to which the water may sink in ex687, 79 N. E. 296; Mariner V. traordinary seasons, or simply at Schulte, 13 Wis. 692; Martin V. its ordinary and usual low level. Evansville, 32 Ind. 85; State ex rel. Here such a decision is not necesCitizens Electric Lighting & P. Co. sary. v. Longfellow, 169 Mo. 109, 69 S. W. The grantee from the state having 374; Lincoln v. Davis, 53 Mich. 375, acquired title to the line of low 384, 51 Am. Rep. 116, 19 N. W. 103;

water on Cayuga lake, this passed to Bates v. Illinois C. R. Co. 12 Month. one Gawger, who in 1872 conveyed L. Rep. 519; Stover v. Jack, 60 Pa.

it by a description running west to 339, 100 Am. Dec. 566; Brown Oil

Cayuga lake and then "along the Co. v. Caldwell, 35 W. Va. 95, 29

east shore” of the


lake. Am. St. Rep. 793, 13 S. E. 42; Mar

This would lake extent of tin v. Nance, 3 Head, 649; Denny v.

carry the line to

low-water mark in case the grantor Cotton, 3 Tex. Civ. App. 634, 22

has title to that line. Child v. Starr, S. W. 122; Mobile Transp. Co. v.

supra; Gouverneur v. National Ice Mobile, 153 Ala. 409, 13 L.R.A.(N.

Co. 134 N. Y. 355, 18 L.R.A. 695, 30 S.) 352, 127 Am. St. Rep. 34, 44 So.

Am. St. Rep. 669, 31 N. E. 865; Van 976; State v. Eason, 114 N. C. 787, Winkle v. Van Winkle, 184 N. Y. 23 L.R.A. 520, 41 Am. St. Rep. 811, 193, 77 N. E. 33. Therefore, there 19 S. E. 88; Thurman v. Morrison, passed to plaintiff's lessor whatever 14 B. Mon. 367; Whitenack v. Tuni- title was acquired by the original son, 16 N. J. L. 77; McBurney v. grantee. Young, 67 Vt. 574, 29 L.R.A. 539, If this be so, concededly the de22 Atl. 492; Wood v. Kelley, 30 Me. fendants committed repeated tres47; Handly v. Anthony, 5 Wheat. passes upon the property held by 374, 5 L. ed. 113; Paine v. Woods, the plaintiff's. What

Injunction108 Mass. 160. The Massachusetts they did was done against trespass cases are sometimes said to be un

on shore of lake.

above ordinary lowimportant because, where land is water mark. The result therefore


(237 N. Y. 117, 142 N. E. 437.) reached by the trial court

Hogan, Cardozo, and Crane, JJ., right.

dissent. The judgment of the Appellate Division must be reversed, and that

NOTE. of the Trial Term affirmed, with costs in this court and in the Ap

The right of the public to use the

shore of inland navigable lakes bepellate Division.

tween high and low water marks is Hiscock, Ch. J., and Pound and the subject of the annotation followMcLaughlin, JJ., concur.

ing DOEMEL V. JANTZ, post, 978.




Wisconsin Supreme Court - April 3, 1923.

(180 Wis. 225, 193 N. W. 393.) Waters — right of passage on shore.

1. When the waters of an inland navigable meandered lake recede to low-water mark, the public right to the space between high and low water mark is superseded by the exclusive rights of the riparian owner, so that there is no public right of passage along the shore between such points.

[See note on this question beginning on page 978.] - foundation of public right.

quire them only by purchase, pre2. The use of navigable waters for scription, or an exercise of the right navigation purposes is at the founda- of eminent domain. tion of the public right in them.

[See 27 R. C. L. 1071; 3 R. C. L. [See 27 R. C. L. 1317.]

Supp. 1545.] - riparian rights as property.

- right to build wharf. 3. The rights which owners of land

7. The rights of an owner of land abutting on navigable waters have in

bordering on navigable water include the water constitute property that the right of using the shore for the may be the subject of bargain and

purpose of building piers, wharves, sale, and are part of the owner's es

harbors, and booms in aid of navigatate in the land and enter into its ac

tion, and of building walls or other tual value.

protection against loss of soil by ero[See 27 R. C. L. 1071; 3 R. C. L. sion. Supp. 1545.)

[See 27 R. C. L. 1190; 28 R. C. L. – foundation of riparian rights.

19.] 4. Riparian rights are based - title to soil under water. ownership of the upland.

8. The title to the soil under water (See 27 R. C. L. 1073.]

in inland navigable meandered lakes - right of access to water.

is held by the state in trust for the 5. The ownership of land bordering benefit of the public for navigation on navigable water carries with it the purposes and its various incidents. exclusive privilege of the shore for the [See 27 R. C. L. 1186, 1188, 1367. purpose of access to and from the wa- See also note in 23 A.L.R. 757.] ter.

- riparian rights subject to public [See 27 R. C. L. 1375; 3 R. C. L.

rights. Supp. 1551; 4 R. C. L. Supp. 1794.]

9. The right of a riparian owner to – right of public to acquire riparian extend structures into the water is rights.

subject to the public right of naviga6. A riparian owner cannot be de- tion and its incidents. prived of his riparian rights for any [See 27 R. C. L. 1343; 4 R. C. L. private use, and the public can ac- Supp. 1792.]


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