understood and universally respected, would allow everyone to know by what law he will be judged. The lack of certainty in the law would be so much diminished. Is not lessening the uncertainty of law one of the most signal services we can render to private interests?

UNIVERSITY OF PARIS, February 6, 1905.

A. Pillet.

TIDE-FLOWED LANDS AND RIPARIAN
RIGHTS IN THE UNITED STATES.

THE

HE United States Supreme Court has frequently called attention to the fact that titles to the shore and shore rights are matters of local state law in which the court must follow the local decisions, and some of the best considered cases in the several state courts also refer to their own law as different from that of other states. But nevertheless it does not seem to be generally understood that there are two well defined theories of riparian rights and the state's title to tide-flowed lands in this country, and much less that these two theories have distinctive historical origins.

The first of these is frequently referred to in the reports of the United States Supreme Court and other cases as the common law of the United States upon these subjects. It is best and most fully exemplified in the law of Connecticut, where the riparian owner has had the exclusive right to wharf and fill out in front of his upland since early colonial days, and it is referred to as having grown up by custom. This exclusive right grows out of the location of the upland which furnishes the only right of access to the shore. But the right of access is not a mere technical access, we shall see it is in New York, nor is it limited to an access to a technical "channel" at low-water mark, as apparently in Massachusetts, but it is the substantial and useful right to reach the deep channel used in practical navigation. In common with all modern cases, the Connecticut court holds that the technical fee below high-water mark is in the state, and the right of the riparian owner is therefore stated to be in the nature of a franchise. But whatever may be its proper definition, this riparian right is a

as

1 See Shively v. Bowlby, 152 U. S. 1, 26, 57 ; Sage v. New York, 154 N. Y. 61, 78; Gould v. Hudson River R. Co., 6 N. Y. 522, 539; Boston v. Richardson, 105 Mass. at p. 361. 2 Swift's System 341-342 (1795). In East Haven v. Hemingway, 7 Conn. at p. 203, the court say: "It stands on the same ground of general usage which is at the foundation of the Common Law."

3 Prior v. Swartz, 62 Conn. 132. In Illinois Cent. R. Co. v. People of Illinois, 146 U. S. at pp. 449–450 the Supreme Court also placed the limit of the riparian owner's right at practical navigability. See also same case on further appeal, 184 U. S. 77.

valuable right of property of which the owner cannot be deprived without compensation,1 and early became so nearly a title to tideflowed flats that the owner could convey them separately from his upland. Finally, the title of the state is so technical, and held so fully for the common public benefit, that the establishment of harbor lines" is only the exercise of the police or supervisory power vested in the legislature, the power to enact such laws as they deem reasonable and necessary for the regulation of the use by riparian proprietors of their qualified right in the soil of the shore," and in Prior v. Swartz it was held that the owner of a wharf could dredge a channel in front of it to navigable water, although he thereby destroyed oyster beds planted under authority of the state.3

The second theory is most readily stated from the law of New York. There the state owns the soil below high-water mark in such a sense that it can be granted away at pleasure to either the upland owner or to any stranger, and if an owner of the upland builds a wharf without a special grant of the soil from the state, it is subject to the rightful power of the state to destroy it or its value without making compensation. For many years after the case of Gould v. Hudson River Co., decided in 1852, it was supposed that the title of the state was unqualified and that the riparian owner had absolutely no rights, not even that of access to tide-water. More recent cases have slightly modified this view, and established the principle that the state holds its title in trust for the promotion and protection of commerce and navigation,

1 Farist Steel Co. v. Bridgeport, 60 Conn. 278.

Accord: Yates v. Milwaukee, 10 Wall. (U. S.) 497, 503-504; Chapman v. Oshkosh, etc., R. R., 33 Wis. 629, 636-638 (River); Delaplacine v. Chicago, etc., R. R., 42 Wis. 214, 226–233 (Lake); Priewe v. Wisconsin, etc., Society, 93 Wis. 534, 549-552; Brisbine v. St. Paul, etc., R. R., 23 Minn. 114, 129-130; Carli v. Stillwater, etc., Ry. Co., 28 Minn. 373, 380; Union Depot Co. v. Brunswick, 31 Minn. 297, 300-303; Myers v. City of St. Louis, 82 Mo. 367, 378.

See also Mr. Justice Potter in Steam-Engine Co. v. Steam Ship Co., 12 R. I. at p. 367.

2 State v. Sargent, 45 Conn. 358. The Connecticut view that harbor lines are an exercise of the police power for the preservation of navigation is also held by the Supreme Court of the United States in Illinois Cent. R. Co. v. People of Illinois, 146 U. S. at p. 459.

3 In accord with the law of Connecticut are: Clement v. Burns, 43 N. H. 609; Concord Co. v. Robertson, 66 N. H. 1; Hanford v. St. Paul Ry. Co., 43 Min. 104; Norfolk City v. Cooke, 27 Gratt. (Va.) 438; Gough v. Bell, 22 N. J. Law 441, and Arnold v. Mundy, 6 N. J. Law 1.

4 6 N. Y. 522.

and, of course, its grantees can take no better title than it has itself. Within the trust, however, the title of the state is still so superior to any rights of the riparian owner that the latter may be deprived of all riparian rights, including his right of access to tide-water, without compensation, provided the state and its grantee do so by improvements for the benefit of commerce. But if an improvement is for any other purpose, although a public one, the riparian owner is entitled to compensation. As it now stands, however, it is strongly intimated that even in this case he can collect only nominal damages, because the only access to which he is entitled is by such boats as could reach his land at high-water mark, in place of the very substantial damages given by modern English authorities in similar cases.1

The law of New Jersey as now established and that of Massachusetts are the same as New York, except that in both the title is an absolute commercial title subject to no trust for the public, and except that in Massachusetts by force of the colonial ordinance of 1647 the state's title stops at low-water mark or the 100-rod line from high-water mark. This ordinance gave the riparian owners a title between high and low-water marks, but the title was later held, in Commonwealth v. Alger,2 to be subject to the police power of the state for the benefit of navigation to lay a harbor line between high and low water and thereby limit the use of the shore by such owner. The title of the riparian owner in Massachusetts between high and low water is, therefore, now in substance the same as that of a riparian owner in Connecticut.

It would seem that the mere statement of the two theories would show that they were necessarily antagonistic,- that there could not be a right of property in the owner of the upland of which he could not be deprived without compensation, and at the same time such a title in the state that the privilege of the upland owner to

1 The following cases sufficiently trace and explain the law of New York: Lansing v. Smith, 4 Wend. (N. Y.) 9; People v. N. Y. & S. I. F. Co., 68 N. Y. 71; Sage v. New York, 154 N. Y. 61; The Matter of the City of New York, 168 N. Y. 134; S. C. sub nom. Matter of Boos, 56 L. R. A. 500.

For English cases giving substantial damages for loss of access, see Duke of Buccleugh . Metropolitan Board, L. R. 5 H L. 418; Atty.-General v. Wemys, 13 App. Cas. 192; North Shore Ry. Co. v. Prior, 14 App. Cas. 612.

2 The three Pacific coast states and probably some others have also adopted the law of New York. Eisenbach v. Hatfield, 2 Wash. 234; Bowlby v. Shively, 22 Or. 410. See the legislation referred to in People v. Williams, 64 Cal. 498, and in Webber v. Commissioners, 18 Wall. (U. S.) 57.

wharf out is a mere revocable license. But very naturally in those states holding to the Connecticut theory the cases usually arise between private parties, while in those following New York the controversy is commonly between the state or its grantee on the one hand and the owner of the upland on the other. Hence it is not always perceived that the cases in the two sets of states are not different phases of one law common to both, and the courts of New Jersey have actually adopted the view that their earlier cases decided between private parties were not inconsistent with a commercially salable title by the state when the latter was ready to assert it. A comparison of the dissenting and majority opinions, in the two cases of Martin v. Waddell1 and Illinois Central R. R. Co. v. People of Illinois 2 will also fully demonstrate that the theories are irreconcilable.

It will be seen however that the two theories agree in one point, that the incidents of the enjoyment of the soil below high water is in its nature private property. No one denies that the state as the conservator of public interests may control, improve, and regulate the use of navigable waters for the benefit of the people at large, in other words, that the state has the jus publicum of Lord Hale and other writers. But the question whether the state in addition to its interest for the people at large has retained or can now seize upon property in the shore which necessarily has from its location the incidents of private commercial property, and make a profit for itself from its sale, is a very different matter. How do there happen to be these two theories in the United States ? The contention that the state has a title to land under tide-water which it may sell and convey depends historically upon the theory that the jus privatum or private property in the soil was prima facie in the crown, and not in the owner of the upland. In 1849 Sergeant Mereweather, in his argument in Dickens v. Shaw,3 said in speaking of this theory: "Up to the period when the Stuarts succeeded to the throne, there is not the slightest pretense or shadow of a case document or record to show that any such prerogative existed."

If it is true or substantially true that the prima facie title was a new theory at the time of the founding of our American colonies, it is certainly a fact which should be fully considered in determining what is the American law upon this subject.

1 16 Pet. (U. S.) 367.

2 14 U. S. 387.

* Published in Hall on the Seashore, Append. p. cvi.