be maintained for an entry upon the riparian owner, after the soil has been so reclaimed, or while in progress of being filled up, it is difficult to perceive any solid reason for withholding the appropriate remedy when a person enters upon and takes possession of such shore for the erection of wharves, or fishing huts. or of reclaiming the land from the sea, or for the purpose of quarrying rock, removing the soil, or any other purpose not connected with the public right of navigation, or fishery. If, in these cases, the riparian owner has no remedy, the result must be that his interest in the shore is of no value, because he may be deprived of the possession by any person who may choose to occupy if for any purpose whatever. But the law is held otherwise, and the rights of a riparian owner may be vindicated by suit, not only when the soil has been reclaimed from the sea, as in Gough v. Bell, 22 N. J. L. 441, and Nichols v. Lewis, 15 Conn. 137, where ejectment was maintained by the owner of the upland for flats adjoining, upon which the defendant had entered and filled them up, but in cases where the soil has not been reclaimed, actions have been maintained, as in Hart v. Hill, 1 Whart. 137, where it was held that the owner of the upland has the sole right of quarrying stone between high and low water mark."

After reviewing a number of other authorities, the court arrives at the conclusion: "The withholding of a remedy, in case of this sort, could only be justified upon the ground that the title to the shore of navigable waters is exclusively in the sovereign,-a doctrine which we think has never been received, in its full force, in the American courts, and we can see no practical inconvenience in following the authorities which, overlooking nice technicalities, give to the riparian owner appropriate remedies for any invasion of his rights. Such have been extensively adopted in this country, both in respect to navigable waters

and our large inland lakes and rivers, and so far as we can learn, without any practical evil; and, judging from the recent case of Blundell v. Catterall, 5 Barn. & Ald. 268, 106 Eng. Reprint, 1190, 24 Revised Rep. 353, where the riparian owner, to whom, as lord of the manor, the shore belonged, was allowed to maintain trespass quare clausum fregit against a person entering on the shore to bathe, there is a tendency in the English courts in the same direction."

A careful review of all of the cases above referred to fastens the conviction upon the reader's mind that the public use of the waters in navigable bodies like the meandered inland lakes is confined to, and is founded upon, the original basis adopted by the English courts, and maintained by the American courts, that such bodies of water constitute highways for navigation purposes, and that, in the course of time, in the development of the law and in its application to existing local conditions, and in response to public requirements, these rights have been extended so as to include fishing, recreation, boating, bathing, hunting, etc., which are denominated incidents to the rights of navigation. Therefore, the use of these waters for the various purposes enumerated and referred to is open to the public when exercising the right of navigation.

By way of résumé of what has heretofore been said, the following principles, therefore, appear to be firmly established by the jurisprudence of this state and of other states, so as to become a part of the common law:

ground that such removal had a tendency to and did affect the harbor, and consequently the rights of navigation. This ruling is not in conflict with with any doctrine pro

nounced by this court. The riparian owner's rights to the shore are exclusive as to all the world, excepting only where those rights conflict with the rights of the public for navigation purposes. What was said in the Diana Shooting Club Case on the subject of the rights of a hunter to pursue his game up to the ordinary high-water mark merely affirmed the public right to pursue the sport of hunting to the ordinary highwater mark of a navigable river while the waters of the river actually extended to such mark. What is said in the Bilot Case had reference merely to the absolute title of the riparian owner up to ordinary highwater mark. The qualified title contended for by the plaintiff herein to low-water mark is not disputed in that case, but it can be reasonably inferred from what is therein said that, as to the strip between ordinary high and low water marks, the title of the riparian owner was only a qualified title, not an absolute title, and that, when the waters extended to the ordinary high-water mark, the strip between high and low water marks was subject to the trust under and pursuant to which the state has title for the benefit of the public for the purposes of navigation and the incidents thereto belonging. This doctrine also seems to be in perfect harmony with the natural order of things. During certain periods of the year when precipitation is large, and when the waters of the lakes are swelled by the increasing inflowing volumes coming from springs, rivers, creeks, and the flowage of surface water and the precipitation in the form of rain, the lake exercises its dominion over the land to the highwater mark. This dominion, however, is not permanent. Upon the seashore, where the waters are affected by the tide, it is intermittent. As to inland lakes and riv31 A.L.R.-62.

ers, such assertion of dominion on the part of nature is periodical. So that it would appear but logical to hold that when nature, in pursuance to natural laws, holds in its power portions of the land which at periods of the year are free from flowage, then during such periods the strip referred to is subject to all the rights of the public for navigation purposes. On the other hand, when the waters recede, these rights. exclusive rights of the riparian owner. are succeeded by the So that during periods of high water the riparian ownership represents a qualified title, subject to an easement, while during periods of low water it ripens into an absolute ownership as against all the world, with the exception of the public rights of navigation, and with those rights no interference will be tolerated where the acts affect, or have a tendency to affect, the public rights for navigation purposes.

-right of passage on shore.

If the rights of riparian owners had not attached or been declared by the courts, a different situation would be presented. Early in the history of this state this court, in harmony with other courts, has firmly declared that the title of a riparian owner on a navigable inland meandered lake extends to lowwater mark. In the early period of our history the lands surrounding these lakes were the property of the state. From time to time the state made grants to private individuals of lands abutting upon the inland waters, and it might be said that by far the greater portion of these grants were executed subsequent to the solemn declaration of the rights of riparian owners by this court. These rights were always considered valuable, and, as a result of such declarations, the doctrines pertaining to riparian rights have become fixed rules of property. Whatever may be our individual inclinations or desires, or our views as to propriety or the public welfare, we cannot disturb the interests which have so become vested.

From our views as expressed herein we arrive at the inevitable conclusion that the demurrer in the instant case was properly sustained.

Order sustaining the demurrer of the lower court affirmed

Crownhart, J., took no part.

The question under annotation is an important one, especially to that large and growing class of persons who own or are interested in property adjacent to the large inland lakes of the country. During certain seasons of the year the water in many of these lakes is ordinarily much higher than at other seasons, and the question is whether the adjoining property owner has the exclusive right, during periods of low water, to the use of this strip of land made bare by the recession of the water, or whether members of the public have a right also to use it. In the latter case the adjoining premises evidently are of much less value, the use of this strip by the public for such purposes as camping, hunting, travel, etc., having in itself the possibility of virtually destroying the value of the immediately adjacent land, so far as it consists in proximity to the water.

Several other annotations may be of interest in connection with the present subject. The question of

title to the beds of natural lakes or ponds is treated in the annotation in 23 A.L.R. 757.

As to the right of an owner of upland to make a use, not connected with navigation, of the shore between high and low water mark which excludes the general public, see the annotation in 10 A.L.R. 1053. It will be observed that the cases in that annotation involved lands adjacent to the sea.

As to rights of boating and fishing on inland lakes, see annotation in 5 A.L.R. 1056.

In both of of the reported cases (STEWART V. TURNEY, ante, 960, and DOEMEL v. JANTZ, ante, 969) the conclusion is reached that the riparian

owner has the exclusive right, during times of low water, to the use of the land between low and high water marks on the inland lakes involved in those cases. The New York case (STEWART V. TURNEY) turns on the question of ownership of the soil, the court holding that the riparian owner had title to the low-water mark, and therefore had the right to enjoin as trespassers persons engaged in hunting on land between high and low water marks. The Wisconsin case (DOEMEL V. JANTZ) does not turn on the question of ownership, the court taking the position that, whether the title to the shore of the inland lake in question between ordinary high and low water marks was in the public, or otherwise, the rights of the plaintiff as riparian owner entitled him to exclude as trespassers persons who were attempting to use for public travel the strip of land adjacent to his upland and lying between ordinary high and low water marks. The court says that whether the title to the shore between ordinary high and low water marks is deemed to be in the public, or whether it rests in private ownership, the rights of the riparian owner are equally well fixed and established, and any invasion of such rights on the part of a stranger necessarily works an injury to the rights of the riparian owner, for which the law affords proper redress. The court further holds that the ownership of the banks or the uplands gives the riparian owner the "exclusive privileges of the shore for the purposes of access to his land and the water;" that while, during times of high water, the strip referred to is subject to the rights of the public for navigation purposes, yet,

when the waters recede, "these rights are succeeded by the exclusive rights of the riparian owner."

It may be observed that this position of the Wisconsin court is substantially the same as that taken by the trial court in the New York case reported in (1921) 117 Misc. 398, 191 N. Y. Supp. 342. However, the New York court of appeals expressed the opinion that no purely ripairan rights which the plaintiffs had were interfered with.

It was said in Ledyard v. Ten Eyck (1862) 36 Barb. (N. Y.) 102, that the public have no highway along the margin of navigable rivers and lakes unless the same has been acquired by express grant or prescription. The case was one involving ownership of land formed by deposits of earth from excavation work performed by the state, in the shallow water of a lake adjoining the defendant's premises. It was held that the lake was not navigable water, and that the defendant's title extended to the center of the lake, or, at least, included the land which was filled in. But, assuming that the lake was navigable water, the court took the view that when the state authorities made the deposits in the shallow water in front of and adjacent to the defendant's premises, the same constituted in effect a public declaration that this portion of the lake could no longer be used for navigation, so that, when the defendant entered into possession, the trusteeship of the state for the public of land under the water was virtually at an end; that there arose, if not a legal, at least a strong equitable title, which, coupled with actual possession, no one except the state itself could dispute; and that another riparian owner could not prevent improvement by the defendant of the made land, on the ground that it constituted a public highway.

Although perhaps not of any considerable value on the present question, attention may be called to State v. Korrer (1914) 127 Minn. 60, L.R.A. 1916C, 139, 148 N. W. 617, 1095, indicating that the public have certain

rights, in addition to those of navigation, in the space between high and low water marks of a public or navigable meandered lake; but just what those rights are is not definitely stated. The question was as to the riparian owner's right to take ore from the bed of the lake partly below the low-water mark and partly between low and high water marks. It was held that the title of the riparian owner extended to low-water mark, and that he might be enjoined, at the instance of the state, from taking ore below such mark. As to the rights respectively of the public and of the riparian owner between high and low water marks, the court said: "While the title of a riparian owner in navigable or public waters extends to ordinary low-water mark, his title is not absolute except to ordinary high-water mark. As to the intervening space his title is limited or qualified by the right of the public to use the same for purpose of navigation or other public purpose. The state may use it for any such public purpose, and to that end may reclaim it during periods of low water, and protect it from any use, even by the riparian owner, that would interfere with its present or prospective public use, without compensation. stricted only by that paramount public right, the riparian owner enjoys proprietary privileges, among which is the right to use the land for private purposes.. The rights of the riparian owners are accordingly distinctly different in and to the space between high and low water mark from what they are below low-water mark. Applying the foregoing principles to this case, it appears to us: That the defendants have the right, during periods of recession of water, to take ore from the space between high and low water mark, provided the state does not require the use of this space for authorized public purposes, and provided they shall not measurably interfere with the utilization of such space for such prospective public uses." R. E. H.

Re