but one State cannot, under the pretense of exacting wharfage dues, build up its domestic commerce by means of oppressive burdens upon the industry and business of other States. A State may also authorize enrolled and licensed steamboats, plying between different ports upon a river, to be taxed as personal property by the city which is their home port, and in which the company owning them has its principal office, and may tax the gross receipts of such boats.3 So, it may provide a remedy in personam for injuries caused by the negligence of a common carrier upon the bays and rivers within its territorial jurisdiction, and the law giving such remedy is not invalid as a hindrance to the free exercise of the license to vessels navigating such waters under the acts of Congress. It may regulate the manner of rafting and driving logs down its rivers, and may incorporate companies, with power to convert unnavigable into navigable streams, and to levy tolls on vessels or logs passing over them, or to improve the navigation of streams partially navigable; but it cannot authorize the imposition of tolls for the passage of logs to other States, upon waters the navigation of which it has not improved. It cannot grant exclusive rights of navigation upon waters which are channels of intercourse between different States; but it

1Ibid.; Guy v. Baltimore, 100 U. S. 434; The John M. Welch, 18 Blatch. 54; Webb v. Dunn, 18 Fla. 721. An attempted imposition of wharfage by the State before it has constructed or acquired the wharf is a duty on tonnage in violation of the Federal Constitution. People v. Pacific Rolling Mills Co., 60 Cal. 323.

2 Transp. Co. v. Wheeling, 99 U. S. 273; The North Cape, 6 Biss. 505; People v. Com'rs, 48 Barb. 157.

4 Nev. 551: Mason v. Boom Co., 3 Wall. Jr. 252. In Utah, see Laws of 1890, ch. 28, p. 21.

6 Carondelet Canal Co. v. Parker, 29 La. Ann. 430; Duluth Lumber Co. v. St. Louis Boom Co., 5 McCrary, 382; Com'rs v. Green Nav. Co., 79 Ky. 73; post, ch. 4. 7 Ibid.; Carson R. L. Co. v. Patterson, 33 Cal. 334. See Conley v. Chedic, 7 Nev. 336.

8 Gibbons v. Ogden, 9 Wheat. 1, re

3 Philadelphia S. Co. v. Com., 104 versing s. C., 17 Johns. 488; and overPenn. St. 109.

4 Steamboat Co. v. Chase, 16 Wall. 522; 9 R. L. 419; Sherlock v. Alling, 93 U. S. 99; 44 Ind. 184.

5 Scott v. Wilson, 3 N. H. 321; Craig v. Kline, 65 Penn. St. 399; Harrigan v. Connecticut River Lumber Co., 129 Mass. 580; Treat v. Lord, 42 Maine, 552; Mandlebaum v. Russell,

ruling Livingston v. Van Ingen, 9 Johns. 507; North River S. Co. v. Livingston, 3 Cowen, 713; Hopk. Ch. 149; Ogden v. Gibbons, 4 Johns. Ch. 150, 174; United States v. Morrison, 4 New York Leg. Obs. 333; United States v. Jackson, id. 450. Either government has power to grant a right of ferry on waters separating Mexico

may grant such rights upon lakes which are wholly within its limits, and not accessible from other States, and upon those parts of rivers from which, by reason of rocks or other obstructions, interstate communication is excluded. The power to establish and regulate ferries is subject to the control of the States, and not of the general government; and, in the case of boundary rivers, like the Mississippi, a ferry franchise conferred by a single State is valid without the concurrent sanction either of Congress or of the State upon the opposite side of the river, or the right of landing beyond the limits of the State by which the grant is made.3

§ 36. Same State grants.-The State may grant to individuals or corporations the soil of public navigable waters

or exclusive rights of fishery in them. If the terms of the grant are doubtful, that construction will be adopted which least restricts the rights of the State and of the public, inasmuch as public grants, whether made by the Crown, or by Congress, or by a State, are construed strictly, and pass only what appears by express words or necessary implication. When the legislature provides for the sale or occupation of lands owned by the State and adjacent to tide water, an express declaration is necessary to warrant the inference that it was intended to permit the shore below high-water mark to be converted into private property. A statute which merely extends the bounds of a town over tide waters, so as to include certain islands therein, confers jurisdiction only, and conveys no right of property in the soil under the water. A confirmation by a

573; State v. Bayonne (N. J. L.), 42 Atl. R. 433; Mullen v. Penobscot L. D. Co., 90 Maine, 555; Oakland v. Oakland W. F. Co., 118 Cal. 160, 249; Galveston v. Menard, 23 Texas, 349; ante, § 31; People v. Thompson, 30 Hun, 457.

1 Ibid.; post, ch. 4.

2 Ante, § 31; Royal Fishery of the Baune, Davies, 149; Somerset v. Fogwell, 5 B. & C. 875; The Rebekah, 1 Rob. Adm. 227, 230; Feather v. The Queen, 6 B. & S. 257; Att. Gen. v. Farmer, Sir T. Raym. 241; 2 Lev. 171; Remfry v. Surveyor-General of Natal, (1896) A. C. 558; Bro. Abr. Patent, pl. 62; Charles River Bridge v. Warren Bridge, 11 Peters, 420, 544, 557; Leavenworth R. Co. v. United States, 92 U. S. 733; Minturn v. Larue, 23 How. 435; 1 McAll. 370; Rice v. Railroad Co., 1 Black, 358; Cleaveland v. Norton, 6 Cush. 380; Boston v. Richardson, 13 Allen, 146; 105 Mass. 351; Com'rs v. Holyoke Water Power Co., 104 Mass. 446, 449; People v. New York Ferry Co., 68 N. Y. 71; People v. Canal Appraisers, 33 N. Y. 461; Clark v. Reeves, 3 Caines, 293; Lansing v. Smith, 4 Wend. 9; 8 Cowen, 46; Morris Canal Co. v. Central R. Co., 16 N. J. L. 419; Hartford Bridge Co. v. Union Ferry Co.,

29 Conn. 210; Thompson v. River Co., 58 N. H. 108; West Branch Canal Co. v. Elmira R. Co., 55 Penn. St. 180; McManus v. Carmichael, 3 Iowa, 1; La Plaisance Bay Co. v. Monroe, Walk. Ch. 155; Haight v. Keokuk, 4 Iowa, 200; North-Western Fertiliz ing Co. v. Hyde Park, 70 Ill. 634; Mills v. St. Clair County, 2 Gilman, 198; 8 How. 569; Vansickle v. Haines, 7 Nev. 249. See Hyman v. Reed, 13 Cal. 444. So a grant from the sovereign of the right to take toll is construed against the grantee. Stourbridge Canal v. Wheeley, 2 B. & A. 793; Britain v. Cromford Canal, 3 B. & Ald. 140; Leeds Canal v. Huster, 1 B. & C. 424; Woolrych on Waters, 306, 312.

3 Ibid.; Kimball v. Macpherson, 46 Cal. 103. See Trustees v. Betts, 47 N. Y. S. 697.

4 Palmer v. Hicks, 6 Johns. 133; People v. Schermerhorn, 19 Barb. 540; Brookhaven v. Smith, 118 N. Y. 634; Roe v. Strong, 119 id. 316; East Hampton v. Vail, 151 N. Y. 463; Sage v. New York, 154 N. Y. 61; Breen v. Locke, 46 Hun, 291; Ruge v. Apalachicola Oyster Co., 25 Fla. 656; San Diego v. Granniss, 77 Cal. 511; Bechtel v. Edgewater, 45 Hun, 240; Bassett v. Franklin, 15 R. L 572; Middletown

colonial assembly to proprietors, who had purchased from the Indians, of lands which included an arm of the sea, with all ports, rivers, etc., was held not to be a grant of the soil between high and low-water mark. So, a general authority conferred by the legislature to lay out highways will not authorize the laying out of a highway over navigable waters.2 A conveyance by the State of all its right, title, and interest in and to the bed of a navigable river, does not pass any exclusive right of wharfage,3 or authorize a destruction or exclusive use of the navigation; and if the legislature confers upon a railroad company power to construct its road "along" tide water, this does not authorize the construction of the road below high-water mark. So, a charter to a mill corporation,

v. Newport Hospital, 16 R. L. 319. The first of these cases was an action of debt for a penalty prescribed by' the town of Flushing against any person raking clams within its boundaries, and the regulation prescribing the penalty was held to be illegal and void. The court said that the statute by which the bounds of the town were extended over the bay and into the Sound, so as to include the islands southward to the main channel, was merely for the purpose of jurisdiction and no evidence of a grant of property in the soil covered by the water, and that the town must show such right of property in order to entitle it to regulate the use of such lands. It was also said: "All the ground under the navigable waters of the Hudson River is within the boundaries of some town, for the purpose of civil and criminal jurisdiction; but it does not follow that the lands under the water belong to the town situated on the river." See Robins v. Ackerly, 91 N. Y. 98. In Com. v. Roxbury, 9 Gray, 451, 594, Shaw, C. J., said: "Counties are composed of towns. And for many purposes, the body of the county extends not only over the shores of the sea, but to some distance below the ebb of the tide, for many purposes of civil

and criminal proceedings, and for certain purposes of jurisdiction; and, for the like purposes, towns may be considered as having a co-extensive jurisdiction; but this has no bearing upon the question of property. An act of incorporation, therefore, without words of grant of the soil, would vest no part of the property of the government in such town. Nor was the purpose of the organization of such a nature as would require of the government any portion of the public right vested in them for public use and benefit; therefore, no portion of the jus publicum will be presumed to have been granted without express words." See Lowndes v. Huntington, 153 U. S. 1; Lawrence v. Hempstead, 155 N. Y. 297; People v. Jessup, 160 N. Y. 249, reversing 51 N. Y. S. 228; Trustees v. Loundes, 40 Fed. Rep. 625; People v. Saxton, 44 N. Y. S. 211.

1 East Haven v. Hemingway, 7 Conn. 186; Middletown v. Sage, 8 Conn. 221; Com. v. Roxbury, 9 Gray, 493, 494.

2 Post, ch. 4.

3 Turner v. People's Ferry Co., 21 Fed. Rep. 90.

4 Treat v. Lord, 42 Maine, 552; People v. Williams, 64 Cal. 498.

5 Stevens v. Erie Ry. Co., 21 N. J. Eq.

authorizing it to exclude tide water from flats belonging to the State, and to use them as a basin for the purpose of mill power, does not release the title of the State to the flats.1 State laws providing for the entry and sale of public lands, or for the sale of swamp and overflowed lands, 'do not extend to the soil beneath navigable waters, and no right to obstruct the navigation passes to the purchaser under such laws. If lands are patented by a State "according to the official plat" in its landoffice, and the plat designates them as tidal overflow, it cannot be objected that they were not conveyed as overflowed lands.3 In Attorney General v. Hanmer, letters patent of the Crown, as lord of the manor of Englefield, granting "all those coal mines found or to be found within the commons, waste grounds, or marshes within the said lordship of Englefield," with a proviso that the grant should be construed strictly against the Crown, and most strictly and beneficially for the grantees, was held to pass coal lying under the foreshore of the estuary of the River Dee, between high and low-water marks, and forming part of the manor of Englefield.

$37. Same Prescription against the State.- Individuals may also acquire by prescription, against the Crown or the 259; Stevens v. Paterson R. Co., 34 Penn. St. 214; Wainwright v. McCulN. J. L. 532.

1 Com. v. Roxbury, 9 Gray, 451.

2 Chapman v. Hoskins, 2 Md. Ch. 485; People v. Morrill, 26 Cal. 336; Taylor v. Underhill, 40 Cal. 471; Upham v. Hosking, 62 Cal. 250, 258; Chandler v. Calumet & H. Co., 36 Fed. Rep. 665; Tatum v. Sawyer, 2 Hawks (N. C.), 226; Smith v. Ingram, 7 Ired. 175; Freytag v. Powell, 1 Whart. 536; Barton v. Bouvier, 1 Phila. 523; Brandt v. McKeever, 18 Penn. St. 70; Barclay R. Co. v. Ingham, 36 id. 194; Storer v. Jack, 60 id. 339; Allegheny City v. Moorehead, 80 id. 118; Philadelphia v. Scott, 81 id. 80; Hinman v. Warren, 6 Oregon, 408; Norfolk City v. Cooke, 27 Gratt. 430. If the stream of a public navi. gable river is artificially diverted from its channel, the land reclaimed cannot be appropriated by warrant and survey. Poor v. McClure, 77

lough, 63 Penn. St. 66; Allegheny City v. Moorehead, 80 Penn. St. 118. In People v. Morrill, 26 Cal. 336, land containing asphaltum between high and low-water mark on the Pacific Ocean, was treated as open to location of mining claims under the general law the same as other lands of the State. See, also, More v. Massine, 37 Cal. 432. The United States act of September 28, 1850, was a present grant to the several States of the swamp and overflowed lands within their limits remaining unsold, subject to a later determination of what lands were then of that description. Tubbs v. Wilhoit, 138 U. S. 134; Wright v. Roseberry, 121 U. S. 488; Gormley v. Uthe, 116 Ill. 643; Sterling v. Jackson, 69 Mich. 488; San Francisco v. Le Roy, 138 U. S. 656.

3 Cragin v. Powell, 128 U. S. 691. 4 27 L. J. Ch. 837.