the situation of a mill, to use the tide as its motive power is not an easement which, if disturbed, confers a right of action.1 But if the granted premises are bounded in terms by a public road which separates them from the water, they extend only to the center of the road, and the grantee is not a riparian owner. So, if a meander line, run by government surveyors in surveying the public lands, leaves between such line and the bank of the stream a considerable body of land which is above the ordinary stage of the water in the stream, and is covered with vegetation or timber, the patent of the surveyed land is limited by the meander line and the patentee is not a riparian proprietor. When a title to land enclosed by a river is acquired by disseisin, and the disseisor occupies as near the river as convenient, it may amount to a possession of the whole lot, if such was his intention, although there is a narrow strip uncultivated along the river; and he may thus be entitled to riparian rights. And a person or corporation, if entitled to the exclusive possession and use of land abutting on a stream, is entitled to the riparian rights incident to the land, although not the owner of the fee. A lessee may have complete ripaLouis Public Schools v. Hammond, 21 Mo. 238; Rowan v. Portland, 8 B. Mon. 239. If the width of a street is clearly defined in a town plat, land lying between the street and the low-water mark of a river is not thereby dedicated to the public. McLaughlin v. Stevens, 18 Ohio, 94; Kennedy v. Jones. 11 Ala. 63. If the land dedicated for a highway is delineated on a mapas extending to the high-water mark of tide-water, it is subject to a public easement, but remains the property of the State. Hoboken v. Pennsylvania R. Co., 16 Fed. Rep. 816. See Schenley v. Pittsburgh, 104 Penn. St. 472. 1 Folsom v. Freeborn, 13 R. I. 200. 2 Banks v. Ogden, 2 Wall. 57; People v. Colgate, 67 N. Y. 512; Jewell v. Lee, 14 Allen, 145; Allegheny City v. Morehead, 80 Penn. St. 118; Brisbine v. St. Paul R. Co., 23 Minn. 114; Allen v. Munn, 55 Ill. 486; Field v. Carr, 59 Ill. 198; Cowles v. Gray, 14 Iowa, 1; Grant v. Davenport, 18 Iowa, 179; Mariner v. Schulte, 13 Wis. 692: Arnold v. Elmore, 16 Wis. 509; Yates v. Judd, 18 Wis. 118. A right of way may be appurtenant to land, from which it is divided by a navigable river. In re Lazaretto Road, 1 Ash. (Penn.) 417. Lammers v. Nissen, 4 Neb. 250, 452. 4 Allen v. Holton, 20 Pick. 458; Ridgway v. Ludlow, 58 Ind. 248. 5 Hanford v. St. Paul R. Co., 43 Minn. 104; Wright v. Woodcock, 86 Maine, 113. A municipal corporation may thus have riparian rights. Emporia v. Soden, 25 Kansas, 588; Madison v. Mayers, 97 Wis. 399; infra, $245. But its rights are not greater than those of an individual, and statutory power to control streams leading to it does not enable it to interfere with the riparian owners' prior vested rights. Fisher v. Bountiful City (Utah), 59 Pac. Rep. 520. 6 Crook v. Hewitt, 4 Wash. St. 749. See Balance v. Peoria, 180 Ill. 29; Peoria v. Ballance, 61 Ill. App. 369. rian rights, and so may a water company. Riparian rights are not dependent upon the existence of a current; they exist in lakes and ponds, and also in waters which are not navigable in fact.2 § 149. Same-The right of access.― Riparian rights exist on the banks of navigable waters as well as of unnavigable streams. In the former case they are subordinate to the public right of navigation; and, while in a non-navigable river all the riparian owners might combine to completely divert, diminish, or pollute the stream, in a navigable river the right of navigation would intervene and prevent this being done.3 The rights actually exercised by the proprietors of land on the shores of tide water are often dissimilar from those enjoyed by proprietors above the flow of the tide, since salt water is less available in the arts, or for irrigation, etc., than fresh. But a littoral proprietor, like a riparian proprietor, has a right to the water frontage belonging by nature to his land, although the only practical advantage of it may consist in the access thereby afforded him to the water, for the purpose of using the right of navigation. This right of access is his only, and exists by virtue and in respect of his riparian property. It exists, in the case of tide waters, even when the shore is the sovereign's property, both when the tide is out and when it is in. It is distinct from the public right of navigation, and an interruption of it is an encroachment upon a private right, whether caused by a public nuisance, or authorized by the legislature. In the above case of Lyon v. Fishmongers' Co., it was held that the power given to conservators of the Thames, 1 Indianapolis W. Co. v. American Strawboard Co., 53 Fed. Rep. 970; 57 id. 1000. 2 Turner v. Holland, 65 Mich. 453. 3 Lyon v. Fishmongers' Co., 1 App. Cas. 662; Orr Ewing v. Colquhoun, 2 App. Cas. 656. 61 App. Cas. 662; L. R. 10 Ch. 679. See Kearns v. Cordwainers' Co., 6 C. B. N. S. 388; Buccleuch v. Met. Board of Works, L. R. 5 H. L. 418; L. R. 3 Ex. 306; Att. Gen. v. Conservators of the Thames, 1 H. & M. 1; Met. Board of Works v. McCarthy, L. R. 7 H. L. 243; Bell v. Quebec, 5 App. Cas. 84; Brown v. Gugy, 10 Jur. N. s. 525; Att. Gen. v. Wemyss, 13 App. Cas. 192; North Shore Railway v. Pion, 14 id. 612; Parkdale v. West, 12 App. 4 Byron v. Stimpson, 1 Pug. & B. (N. B.) 697; State v. Bridges, 19 Wash. 44; 40 L. R. A. 593, and note; Madison v. Mayers (97 Wis. 399), id. 635, and note. 5 Ante, § 124; Yarmouth v. Sim- Cas. 602; 4 Harvard Law Rev. 14. mons, 10 Ch. D. 518. under the act of Parliament by which they were constituted, to grant a license to a riparian owner to make an embankment in front of his land on the river, did not authorize the licensee to embank in front of his own land so as to affect injuriously the rights of an adjoining riparian owner, though such license might be a justification with respect to the public right of navigation. In Yates v. Milwaukee,' in the Supreme Court of the United States, a municipal corporation, which was authorized by the legislature to establish dock and wharf lines upon rivers within its limits, and to restrain and prevent encroachments upon the rivers and obstructions thereto, declared by ordinance that the plaintiff's wharf was a nuisance to the navigation, and ordered it abated. This ordinance was of itself held to be insufficient evidence? upon the question whether the wharf was in fact a nuisance.3 110 Wall. 497. 2 Miller, J., here said, with respect to lots adjoining navigable rivers: "Whether the title of the owner of such a lot extends beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a navigable stream; and among those rights are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf, or pier for his own use or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public." See Dutton v. Strong, 1 Black, 25; Schurmeir v. Railroad Co., 7 Wall. 272; Atlee v. Packet Co., 21 Wall. 389; Carli v. Stillwater Street Ry. Co., 28 Minn. 373. "This riparian right is property, and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired. It is a right of which, when once vested, the owner can only be deprived in accordance with established law; and, if necessary that it be taken for the public good, upon due compensation." Generally, authority to abate nuisances, or to regulate wharves, does not include the power to declare that a nuisance which is not so in fact. Pye v. Peterson, 45 Texas, 312; Evansville v. Martin, 41 Ind. 145; Everett v. Council Bluffs, 46 Iowa, 66; Babcock v. Buffalo, 56 N. Y. 268. 3 See also Webber v. Harbor Com'rs, 18 Wall. 57; Atlee v. Packet Co., 21 Wall. 389; Richardson v. Boston, 24 How. 188; Van Dolsen v. New York, 11 Blatch. 454; Baltimore R. Co. v. Chase, 43 Md. 23; Harrison v. Sterrett, 4 H. & McHen. 540; Diedrich v. Northwestern Ry. Co., 42 Wis. 248; Delaphine v. Chicago Ry. Co., id. 214; Meyers v. St. Louis, 8 Mo. App. 266; Myers v. St. Louis, 82 Mo. 367; Barron v. Baltimore, 2 Am. Jurist, 203; Clark v. Peckham, 10 R. I. 35, 38; 9 R. I. 455; Morrill v. St. Anthony Falls Co., 26 Minn. 222; Norfolk City v. Cooke, 27 Gratt. 430, 435. If the loss occasioned by an interruption of the right of access to a highway is capable of pecuniary compensation, the remedy is by an action at law for damages, and not by proceedings § 150. Same-Same.- This right is limited to the right to enter from one's own estate upon the highway, and to pass from the highway to one's own estate, and does not include the right to redress for an obstruction which is not against the front of the plaintiff's land, even when it entirely closes the highway. It doubtless follows, from the important decisions just referred to, that access, as thus defined, cannot, without compensation, be taken away by the State, as owner in fee of the bed and shores of navigable waters, or by virtue of its power to regulate and control them for public purposes. In Buccleuch v. Metropolitan Board of Works, the House of Lords held that the owner of an estate upon the tide waters of the Thames was entitled to compensation, not only for the land actually taken for the construction of a public road, but also for the change of his premises from river-side to road-side property, including his individual and particular right to use the shore of the river in which he had no proprietary interest. In Wisconsin a riparian proprietor is entitled to compensation from a railroad corporation, which so builds its road, under the authority of the State, as to deprive him of access to and from his land, and of the facilities which the location of the land affords, although the road is constructed beyond the water's edge, which is the boundary of his title. This view has been approved in Rhode Island and Minnesota." in equity for an injunction. Stone v. Peckham, 12 R. I. 27. 1 Ante, 124; Gibson v. United States, 166 U. S. 269; Lewis v. Johnson, 76 Fed. Rep. 476; Bailey v. Philadelphia R. Co., 4 Harr. (Del.) 389; Boston & Worcester Railroad v. Old Colony Railroad, 12 Cush. 605; Hotz v. Hoyt, 135 Ill. 388; Shirley v. Benicia, 118 Cal. 344. 4 Co., 6 M. & W. 699; Chamberlain v. 3 Chapman v. Oshkosh & Miss. R.. Co., 33 Wis. 629; Delaphine v. Chicago R. Co., 42 Wis. 214; Diedrich v. Northwestern Ry. Co., id. 248, 264; Holdon v. Milwaukee, 31 Wis. 38. 2 L. R. 5 H. L. 418; L. R. 3 Ex. 306; L. R. 5 Ex. 221. See, also, the English and Massachusetts cases cited ante, S$ 122, 124. Beckett v. Midland Ry. Co., L. R. 3 C. P. 82; Met. Board of Works v. McCarthy, L.. R. 7 H. L. 243; Ricket v. Met. Ry. Co., L. R. 2 H. L. 175; Bell v. Hull & Selby Ry. 5 Brisbine v. St. Paul R. Co., 23 Minn. 114; Carli v. Stillwater Street Ry. Co., 28 Minn. 373. 4 Providence Steam Engine Co. v. Providence S. Co., 12 R. I. 348, 361: § 151. Same- Same.-Upon the other hand it was held in New York, in Gould v. Hudson River Railroad Co.,' which was prior to the decision of the Supreme Court of the United States in Yates v. Milwaukee, that, as the owners of lands adjoining a navigable river have no private right of property in the waters of the river, or in its shores below high-water mark, they are not entitled to compensation when a railroad, constructed under a grant from the legislature along the shore between high and low-water mark, cuts off all communication between such lands and the river otherwise than across the road.3 It has been suggested that this doctrine may result, in New York, from the civil-law doctrine, applicable to the Hudson, which was the river here in question. This doctrine, which rests apparently upon the ground that the injury suffered by the riparian owner, though greater in degree, is the same in kind as that sustained by the general pubiic and by those who, not being riparian owners, have occasion to approach it over that part of the bank occupied by the road,1 is also supported by Tomlin v. Dubuque Railroad," in Iowa, decided Clark v. Peckham, 10 R. I. 35, 38; 9 1 Gould v. Hudson River R. Co., 6 N. Y. 522; 12 Barb. 616; Lansing v. Smith, 8 Cowen, 146; 4 Wend. 9; People v. Tibbetts, 19 N. Y. 523, 528; Langdon v. New York, 93 N. Y. 129, 144; Brooklyn Park Com'rs v. Armstrong, 45 N. Y. 234, 245; People v. New York Ferry Co., 68 N. Y. 71, 78; 7 Hun, 105; People v. Vanderbilt, 26 N. Y. 287; People v. Canal Appraisers, 33 N. Y. 461, 467; People v. New York, 8 Abb. Pr. 7, 12; Manhattan Gaslight Co. v. Barker, 36 How. Pr. 233; 7 Rob. 523; Hudson River R. Co. v. Loeb, 7 Rob. 418; Getty v. Hudson River R. Co., 21 Barb. 617; Wetmore v. Atlantic White Lead Co., 37 Barb. 70, 96. But see Story v. New York El. R. Co., 90 N. Y. 122; Re New York & W. S. R. Co., 29 Hun, 269, 646; 89 N. Y. 453; Fowler v. Mott, 19 Barb. 204, 220; Organ v. Memphis R. Co., 51 Ark. 235 (partition). 210 Wall. 497; ante, § 149. 3 Smith v. Rochester, 92 N. Y. 463, 482; ante, § 57. 4 See remarks of Beasley, C. J., in Stevens v. Paterson R. Co., 34 N. J. L. 532, 549. 532 Iowa, 106. See McManus v. Carmichael, 3 Iowa, 1. The following decisions in Iowa recognize or support Tomlin v. Dubuque R. Co.: Ingraham v. Chicago R. Co., 34 Iowa, 249, 252; Cook v. Burlington, 36 Iowa, 357, 365; Musser v. Hershey, 4? Iowa, 356, 361; Kucheman v. C. C. & D. R. Co., 46 Iowa, 366, 378. The matter is not provided for by statute in this. |