they may be protected in equity against an unauthorized encroachment upon them by a stranger, which interferes with their access to the water. When the shore is reclaimed, it becomes the property of the littoral proprietor, and cannot be taken for public uses, or granted by the State to other persons, without compensation. If a structure erected by a littoral proprietor upon the shores of this State does not interfere with the navigation, it is not abatable as a nuisance or purpresture.3 It seems that the common understanding in this State carries the right even below low-water mark, provided there is no obstruction to the navigation. The rights of the littoral proprietor with respect to the land under water are mere incidents of the ownership of the shore, and, as such, pass with a grant of the upland.

§ 172. Same-Rhode Island.-In Rhode Island, the right to build wharves in tide waters, not obstructing the channel, appears to have been conceded by an unpublished ordinance passed in 1707. Whether it originated in this ordinance or in usage, the right of the littoral proprietor to wharf or embank against his land, without license from the State, provided he does not interfere with the navigation, appears to have been long recognized, and is supported by recent decisions in that State. But a lessee of flats from a riparian owner

1 Ibid.; Stockham v. Browning, 18 N. J. Eq. 390; State v. Brown, 27 N. J. L. 13, 648; Brown v. Morris Canal Co., id. 648; Hoboken Land Co. v. Hoboken, 36 N. J. L. 540, 550; Coburn v. Ames, 52 Cal. 385; Aborn v. Smith, 11 R. I. 594; 12 R. I. 370; Thornton v. Grant. 10 R. I. 477; O'Donnell v. Kelsey, 10 N. Y. 412, 415.

2 Bell v. Gough, 21 N. J. L. 156; 22 N. J. L. 441; 23 id. 624, 678; State v. Jersey City, 25 id. 525; Keyport S. Co. v. Farmers' Transp. Co., 18 N. J. Eq. 511, 513; O'Neall v. Annett, 3 Dutch. 290, 293.

Att. Gen. v. Delaware R. Co., 27 N. J. Eq. 1, 631.

4 Elmer, J., in Bell v. Gough, 3 Zab. 658. See Townsend v. Brown, 24 N. J. L. 80, 85; Associates v. Jersey City, 4 Hal. Ch. 715; American Dock Co.

v. Trustees, 39 N. J. Eq. 409; Hagan v. Gaskill, 42 id. 215. See, also, upon this point, the early Massachusetts case of Com. v. Crowninshield, 2 Dane, Abr. 691.

5 State v. Brown, 27 N. J. L. 13; American Dock Co. v. Trustees, 39 N. J. Eq. 409; Yard v. Ocean Beach Ass'n, 49 id. 306. See Hagan v. Gaskill, 42 id. 215.

6 See Angell on Tide Waters (2d ed.), 237.

7 Providence Steam Engine Co. v. Providence S. Co., 12 R. L. 348, 363; Thornton v. Grant, 10 R. I. 477; Clark v. Peckham, 10 R. I. 35, 38; Brown v. Goddard, 13 R. I. 76; Folsom v. Freeborn, id. 200, 204; State v. Burdick, 15 R. L. 239; Murphy v. Bullock (R. I.), 37 Atl. Rep. 348.

is not entitled to compensation from the State when it carries a bridge over the flats.1

3

§ 173. Same - Pennsylvania.-In Pennsylvania, tidal rivers and the larger fresh streams are alike public property. In Tinicum Fishing Co. v. Carter, the right of the defendant in error to throw out nets in the Delaware River, and to draw them in on the shore, was obstructed by a pier built out by the plaintiffs in error into the river under license from the board of wardens of the port of Philadelphia, who were empowered to grant such licenses in the interests of navigation. Sharswood, J., thus defines the right to extend wharves under the laws of that State: "The title of the riparian owner, derived by grant from the State, extends to low-water mark, not absolutely indeed in tidal streams, but subject to the public right of passage when the tide is high. He has no right to make any erection between high and low-water mark without express authority from the State; nor, of course, beyond low-water mark, into the bed and channel. The State can grant authority to make such erection, either to the riparian owner or to others, so long as the riparian owner is not thereby deprived of access to and use of the river as a public highway, which is implied, if not expressed, in the grant to him of land bounded on the stream. Under this first and necessary restriction, the right of the Commonwealth to make any erections in the river for the improvement of its use as a public highway, or to promote in any way the business and prosperity of the people, is undoubted and unlimited."

1 Gerhard v. Seekonk River Bridge Com'rs, 15 R. I. 334. See Scranton v. Wheeler, 113 Mich. 565, 57 Fed. Rep. 803.

2 Ante, § 65.

361 Penn. St. 21, 30. See, also, Hart v. Hill, 1 Whart. 124, 131, 137; Com. v. Shaw, 14 Serg. & R. 9, 13; Shrunk v. Schuylkill Navigation Co., id. 81; Naglee v. Ingersoll, 7 Penn. St. 185; Zug v. Com., 70 id. 138; Philadelphia v. Scott, 81 id. 80; Simpson v. Neill, 89 id. 183; Purcell v. Stover, 110 id. 43; Com. v. Fisher, 1 Penn. 462; Klingensmith v. Ground, 5 Watts, 458; Lehigh Valley R. Co.

995

v. Trone, 28 Penn. St. 206; Com. v. Church, 1 Penn. St. 105; Chess v. Mantown, 3 Watts, 219; Cooper v. Smith, 9 Serg. & R. 26; Freytag v. Powell, 1 Whart. 536; Jones v. Janney, 8 W. & S. 436; Frankford v. Lennig, 7 Phila. 403; Philadelphia R. Co. v. Morris, id. 286; Re Cramp, 13 Phila. 16; Hoboken v. Penn. R. Co., 16 Fed. Rep. 816; 124 U. S. 656.

4 Citing Ball v. Slack, 2 Whart. 508. In the city of Philadelphia this right depends upon early statutes. See Gumbes v. Philadelphia (Penn.), 43 Atl. Rep. 88.

Monongahela Nav. Co. v. Coons, 6

§ 174. Same-California.-In California the owner of land bordering upon the seashore holds presumably only to ordinary high-water mark, and the shore itself is presumed to remain the property of the State,1 while the right to wharf out appears to be conceded. Where, however, no question of riparian rights intervenes, the State may maintain ejectment for a wharf constructed without authority of law in navigable tide waters below low-water mark,3 and a patent which describes a corner as "beginning on the seashore," places such corner at ordinary high-water mark. Land lying below highwater mark and within the ebb and flow of the tide cannot be purchased as swamp and overflowed land; and no right to obstruct navigation passes to the purchaser under the laws for the sale of such land. So lands within the flow of ordinary tides, the cost of reclaiming which would greatly exceed their value when reclaimed for any agricultural purpose, are not acquirable under a statute authorizing the sale of reclaimable lands.6

§ 175. Same-New York.- In New York the general right to build, without authority from the legislature, wharves in

Watts & S. 101; Susquehanna Canal Co. v. Wright, 9 Watts & S. 9; Com. v. Young Men's Ch. Ass'n, 169 Penn. St. 24; McKeesport Gas Co. v. Carnegie Steel Co., 189 id. 509; Briggs v. Pfeil, 42 Pitts. L. J. 18.

1 Long Beach L. & W. Co. v. Richardson, 70 Cal. 206; Freeman v. Bellegarde, 108 Cal. 179; Coburn v. San Mateo County, 75 Fed. Rep. 520. Under a patent for land upon an unnavigable stream in which the tide ebbs and flows, the high-water mark is prima facie the boundary. Wright v. Seymour, 69 Cal. 122.

2 Coburn v. Ames, 52 Cal. 385; People v. Davidson, 30 Cal. 379; Dana v. Jackson Street Wharf Co., 31 Cal. 118; People v. Broadway Wharf Co., id. 33: San Francisco v. Calderwood, id. 585; Rondell v. Fay, 32 Cal. 354; Gunter v. Geary, 1 Cal. 462; Guy v. Hermance, 5 Cal. 73; Teschemacher v. Thompson, 18 Cal. 11; United Land

Ass'n v. Knight, 85 Cal. 448; Upham v. Hosking, 62 Cal. 250; Fisher v. Police Court, 86 Cal. 158; Oakland v. Oakland W. F. Co., 118 Cal. 160, 249. As to Alaska, see Lewis v. Johnson, 76 Fed. Rep. 476; Carroll v. Price, 81 id. 137.

3 Ibid.

4 Jones v. Martin, 35 Fed. Rep. 348. 5 People v. Morrill, 26 Cal. 336; Taylor v. Underhill, 40 Cal. 471. In San Francisco v. Ellis, 54 Cal. 72, a State statute authorizing the board of supervisors of the city and county of San Francisco to sell at public auction certain tide lands, the property of the State, except so much thereof as might be required for a street and sewer, and providing that the deed of the mayor should vest the title in the purchasers, was held not to oper ate as a grant to the city and county.

6 People v. Cowell, 60 Cal. 400. In this State irrigation districts are pub

tide waters, upon the soil owned by the State, is more strictly limited, and is regulated by statute. In this State the owner of land adjoining a navigable river has no right of property in the shore between high and low-water mark, and no right of reclamation as against the State, and is not entitled to compensation when a railroad is constructed along the water front of his premises. But when the State conveys submerged land to the adjoining littoral proprietor, it passes by his conveyance of the upland without express words. The courts of New York have no jurisdiction to restrain the erection of structures extending from the New Jersey shore into the Hudson River or the Bay of New York, even though they constitute a common nuisance. But the city and county of New York include the

whole of the river and harbor adjacent to the city to actual low-water mark on the opposite shores, whether such water mark is formed by natural or artificial means. The wharves and docks erected in Brooklyn, and extending beyond the natural low-water mark, are within the jurisdiction of that city; but the vessels which lie beyond, though fastened to such wharves or docks, are within the jurisdiction of New York. By acts of the legislature passed in 1848 and 1850, the owners of real estate fronting on the water in the city of Brooklyn were given the right to erect bulkheads and wharves in front of their respective lands as far as the permanent water line established by statute in 1836. The corporation of New York, under its ancient charters, which are confirmed by the Constitution of the State, owns in fee the land under the waters of the East and North rivers to the distance of four hundred feet beyond the line of low-water mark, as it existed at the date of the charters.

cludes "the residue of said State, with the waters thereof," the United States reservation at West Point is included, although not strictly a part of the State. Beekman v. West Shore R. Co., 35 Fed. Rep. 3.

1 Udall v. Brooklyn, 19 Johns. 175; Stryker v. New York, 19 Johns. 179; In re Furman Street, 17 Wend. 649; Orr v. Brooklyn, 36 N. Y. 661; Atlantic Dock Co. v. Brooklyn, 3 Keyes, 444; 1 Abb. Dec. 24; Livingston v. Ogden, 4 Johns. Ch. 48; Ex parte Vanderbilt, id. 57; Luke v. Brooklyn, 43 Barb. 54; Mayor u Hart, 16 Hun, 380; 95 N. Y. 443; Ferguson v. Ross, 126 N. Y. 459; Furman v. New York, 5 Sand. 16; People v. Colgate, 9 Hun, 708; 67 N. Y. 512; Re Wells Avenue, 4 N. Y. S. 301. The city and county courts of New York have concurrent criminal jurisdiction with the Federal courts in the harbor of New York. People v. Welch, 74 Hun, 474. 2 Ibid.

3 Ibid.; Devato v. Eight Hundred Twenty-three Barrels of Plumbago, 20 Fed. Rep. 510; The Craigendoran, 31 id. 87. Since colonial times the Brook

It may construct piers and

lyn landing place of Fulton Ferry has been owned by New York City, and is exempt from taxation. People v. Brooklyn Assessors, 47 Hun, 383.

4 Wetmore v. Atlantic White Lead Co., 37 Barb. 78; People v. Kelsey, 38 Barb. 269; 14 Abb. Pr. 372; Wetmore v. Brooklyn Gaslight Co., 42 N. Y. 384. See Kingsland v. New York, 45 Hun, 198; Williams v. New York, 105 N. Y. 419; Timpson v. New York, 39 N. Y. S. 248.

5 See cases in next note; also, Towle v. Palmer, 1 Rob. 437; 1 Abb. Pr. N. S. 81; Towle v. Smith, 2 Rob. 489; Towle v. Remsen, 70 N. Y. 303; In re New York, 135 N. Y. 253; 63 Hun, 632; Jarvis v. Lynch, 157 N. Y. 445; Schermerhorn v. New York, 3 Edw. Ch. 119; Verplanck v. New York, 2 Edw. Ch. 220; New York v. Scott, 1 Caines, 543; Dickinson v. Codwise, 1 Sand. Ch. 214; Roosevelt v. Frost, 1 Edw. Ch. 579; Furman v. New York, 10 N. Y. 567; 5 Sand. 16; Nott v. Thayer, 2 Bosw. 10; Hecker v. New York Balance Dock Co., 24 Barb. 215, 217; Vanderbilt v. New York, 2 Sand. 258; Turner v. People's Ferry Co.,