in the running water of the stream, which can only be appropriated by severance, and which may be lawfully so appropriated by every one having a right of access to it. It is, of course, necessary for the existence of a riparian right that the land should be in contact with the flow of the stream; but lateral contact is as good jure naturae as vertical."1 "It is true that the banks of a tidal river, of which the foreshore is left bare at low water, is not always in contact with the flow of a stream, but it is in such contact for a great part of every day in the ordinary and regular course of nature, which is an amply sufficient foundation for a natural riparian right." All riparian rights depend upon the ownership of land which is contiguous to and touches. upon the water;2 and, in the case of tide waters, upon the ownership of the land above and adjoining the edge of the water at ordinary high-water mark. They do not attach to any lands, however near, which do not extend to the water.4 A mere right of way along the banks, reserved in a grant of land bounded by a river, being merely an easement, does not deprive the grantee of his rights as a riparian proprietor.5 But if the granted premises are bounded in terms by a public road which separates them from the water, they extend only to the centre of the road, and the grantee is not a riparian owner. So, if a meander line, run by government

1 Miner v. Gilmour, 12 Moo. P. C. 131; Chasemore . Richards, 7 H. L. Cas. 349, 373, 382. See, also, Lord v. Commissioners of Sidney, 12 Moo. P. C. 473.

2 Jones v. Johnston, 18 How. 150; Johnston v. Jones, 1 Black, 209; Bates v. Illinois Central Railroad Co., 1 Black, 204.

3 Ibid.; Lyon v. Fishmongers' Co., above quoted; Deerfield v. Arms, 17 Pick. 41; State v. Brown, 3 Dutch. 13, 648; Hoboken Land Co. v. Hoboken, 7 Vroom, 540, 550; Hayden v. Long, 8 Oregon, 244.

4 Ibid.

5 Hagan v. Campbell, 8 Porter, 9; Stetson v. French, 16 Maine, 204;

Stetson v. Bangor, 60 Maine, 313; Barclay v. Howell, 6 Peters, 498; Parish v. Stephens, 1 Oregon, 59; St. Louis 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 lowwater mark of a river is not thereby dedicated to the public. McLaughlin v. Stevens, 18 Ohio, 94; Kennedy, v. Jones, 11 Ala. 63.

6 Banks v. Ogden, 2 Wall. 57; People v. Colgate, 67 N. Y. 512; Jewell . Lee, 14 Allen, 145; Allegheny City . Morehead, 80 Penn. St. 118; Brisbine v. St. Paul Railroad Co., 23 Minn. 114; Allen r. Munn, 55 Ill. 486;

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.2

§ 149. 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. 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 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

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. Lazaretto Road, 1 Ash. (Penn.) 417.

452.

1 Lammers v. Nissen, 4 Neb. 250,

2 Allen v. Holton, 20 Pick. 458; Ridgway v. Ludlow, 58 Ind. 248.

8 Lyon v. Fishmongers' Co., 1 App. Cas. 662; Orr Ewing v. Colquhoun, 2 App. Cas. 656.

* Ante, § 124.

the above case of Lyon v. Fishmongers' Co.,1 it was held that the power given to conservators of the Thames, 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,2 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 the the plaintiff's wharf was a nuisance to the navigation, and ordered it abated. In deciding that such ordinance was of itself insufficient evidence upon the question whether the wharf was in fact a nuisance,3 Miller, J., 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."4 "This riparian right is property, and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it can

11 App. Cas. 662; L. R. 10 Ch. 679. See Kearns v. Cordwainers' Co. 6 C. B. N. s. 388; Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. 418; L. R. 3 Ex. 306; Attorney General v. Conservators of the Thames, 1 H. & M. 1; Metropolitan 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. 210 Wall. 497.

3 Generally, authority to abate nui

sances, or to regulate wharves, does not include the power to declare that a nuisance which is not so in fact. Pyev. Peterson, 45 Texas, 312; Evansville v. Martin, 41 Ind. 145; Everett v. Council Bluffs, 46 Iowa, 66; Babcock v. Buffalo, 56 N. Y. 268.

4 Dutton v. Strong, 1 Black, 25; Schurmeir v. Railroad Co., 7 Wall. 272; Atlee v. Packet Co., 21 Wall. 389.

not be arbitrarily or capriciously destroyed or impaired. It is a right of which, when once vested,1 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."2

§ 150. 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

'In this case the wharf which it was attempted to condemn as a nuisance was actually built.

2 See also Webber r. Harbor Commissioners, 18 Wall. 57; Atlee v. Packet Co., 21 Wall. 389; Richardson v. Boston, 24 How. 188; Baltimore Railroad Co. v. Chase, 43 Md. 23; Harrison v. Sterrett, 4 H. & McHen. 540; Diedrich v. North Western Railway Co., 42 Wis. 248; Delaphine v. Chicago Railway Co., Id. 214; Meyers v. St. Louis, 8 Mo. App. 266; 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., 20 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 in equity for an injunction. Stone v. Peckham, 12 R. I. 27.

9 Ante, § 124; Bailey v. Philadelphia Railroad Co., 4 Harr. (Del.) 389; Boston & Worcester Railroad v. Old Colony Railroad, 12 Cush. 605.

4 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, §§ 122, 124. Beckett v. Midland Railway Co., L. R. 3 C. P. 82; Metropolitan Board of Works v. McCarthy, L. R. 7 H. L. 243; Ricket v. Metropolitan Railway Co., L. R. 2 H. L. 175; Bell v. Hull & Selby Railway Co., 6 M. & W. 699; Chamberlain v. West End of London Railway Co., 2 B. & S. 605; Moore v. Great Southern Railway Co., 10 Ir. R. C. L. 46; Regina v. Rynd, 16 Ir. R. C. L. 29.

.

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.1 This view has been approved in Rhode Island2 and Minnesota.3

§ 151. Upon the other hand it was held in New York, in Gould v. Hudson River Railroad Co.,1 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

1 Chapman v. Oshkosh & Mississippi Railroad Co., 33 Wis. 629; Delaphine v. Chicago Railroad Co., 42 Wis. 214; Diedrich v. North Western Railway Co., Ibid. 248, 264; Holton v. Milwaukee, 31 Wis. 38.

2 Providence Steam Engine Co. v. Providence Steamship Co., 12 R. I. 348, 361; Clark v. Peckham, 10 R. I. 35, 38; 9 R. I. 455. See Cooley Const. Lim. 544, note; Cleveland Railroad Co. v. Ball, 5 Ohio St. 568; Rice v. Ruddiman, 10 Mich. 125; Lorman v. Benson, 8 Mich. 18; Lehigh Valley Railroad Co. v. Trone, 28 Penn. St. 206; In re Philadelphia Railroad Co., 6 Whart. 25, 46; Commonwealth v. Richter, 1 Penn. 467; Pittsburgh v. Scott, 1 Penn. St. 309, 317; Ashby v. Eastern Railroad Co., 5 Met. 368; Dodge v. County Commissioners, 3 Met. 380; Chicago Railroad v. Stein, 75 III. 41.

3 Brisbine v. St. Paul Railroad Co., 23 Minn. 114; Carli v. Stillwater Transportation Co., 25 Alb. L. Journ. 156.

Gould v. Hudson River Railroad Co., 6 N. Y. 522; 12 Barb. 616; Lansing. Smith, 8 Cowen, 146; 4 Wend. 9; People v. Tibbetts, 19 N. Y. 523, 528; Brooklyn Park Commissioners 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 Railroad Co. v. Loeb, 7 Rob. 418; Getty. Hudson River Railroad Co., 21 Barb. 617; Wetmore v. Atlantic White Lead Co., 37 Barb. 70, 96. But see Fowler v. Mott, 19 Barb. 204, 220. 5 10 Wall. 497; ante, § 149.