3

road. 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 public 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,2 in Iowa, decided shortly after Yates v. Milwaukee, which is not there referred to, and prior to the English cases above cited; and by Stevens v. Paterson Railroad Co., in New Jersey, which was decided just before Yates v. Milwaukee, and in which the decision of the Exchequer Chamber in Buccleuch v. Metropolitan Board of Works was relied upon, a decision which was afterwards reversed by the House of Lords upon the grounds above stated. When it is conceded that riparian rights are property, the question as to the right to take them without compensation would appear to be at an end.

6

§ 152. If a city so constructs its sewers and drains discharging its navigable waters that their contents are not carried away by the tides or current, but cause accumulations in front of a wharf and obstruct the access of vessels, the owner of the wharf may recover damages against the city in an action of trespass on the case, or he may obtain relief by

1 See remarks of Beasley, C. J., in Stevens v. Paterson Railroad Co., 34 N. J. L. 532, 549.

2 32 Iowa, 106. See McManus v. Carmichael, 3 Iowa, 1. The following decisions in Iowa recognize or support Tomlin v. Dubuque Railroad Co.: Ingraham v. Chicago Railroad Co., 34 Iowa, 249, 252; Cook v. Burlington, 36 Iowa, 357, 365; Musser v. Hershey, 42 Iowa, 356, 361; Kucheman v. The C. C. & D. R. Co., 46 Iowa, 366, 378. The matter is not provided for by statute in this State. See Renwick v. The D. & N. W. R. Co., 49 Iowa, 664, 669; Railway Co. v. Renwick, 102 U. S. 180; Barney v. Keokuk, 94 U. S. 324; Renwick v. The D. & N. W. R. Co., 49 Iowa, 664, 669; Houghton

8

v. The C. D. & M. R. Co., 47 Iowa, 370.

3 Lyon v. Fishmongers' Co., 1 App. Cas. 662; L. R. 10 Ch. 679; Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. 418; L. R. 5 Ex. 222; L. R. 3 Ex. 306; Metropolitan Board of Works v. McCarthy, L. R. 7 H. L. 243; Bell v. Quebec, 5 App. Cas. 84.

4 Stevens v. Paterson Railroad Co., 34 N. J. L. 532; 20 N. J. Eq. 126. See Stockham v. Browning, 18 N. J. Eq. 390; Tinsman v. Belvidere Delaware Railroad Co., 26 N. J. L. 148; 25 Id. 255. 5 L. R. 5 Ex. 221.

6 34 N. J. L. 543, 544.

7 L. R. 5 H. L. 418; Meyers v. St. Louis, 8 Mo. App. 266, 276.

8 Boston . Richardson, 19 How.

injunction against the continuance of the nuisance.1 In the latter case the proof that a nuisance exists must be clear,2 and the court in granting the injunction will postpone its operation for a reasonable time in order that the city may take measures to remove the nuisance without unnecessary injury to the public health or interests.3

§ 153. The right of unobstructed access is also limited to the front of the land, and does not include the right, if the riparian owner fills out his entire frontage, to have the docks or water spaces on either side kept open in order that he may have access to the sides of his wharf. If the adjoining owners do not fill up in front of their lands, the general public and the owner of the improved bank may alike use the water for navigation, and thus have access to the sides of the wharf. But the adjoining proprietors, so far as they have the right to wharf out, may at pleasure close up the water spaces in front of their own lands, even at the sides of another's wharf which is expressly authorized by the legislature.

§ 154. The existence of this right of access does not preclude any lawful exercise by the public of the right of

263, 270; Boston v. Lecraw, 17 How. 426; Clark v. Peckham, 10 R. I. 35; 9 R. I. 455.

1 Ante, § 121; Breed v. Lynn, 126 Mass. 367, 370; Haskell r. New Bedford, 108 Mass. 208, 216; Rowe v. Granite Bridge, 21 Pick. 344, 347; District Attorney v. Lynn Railroad Co., 16 Gray, 242, 245; Pennsylvania r. Wheeling Bridge Co., 13 How. 518; Spokes . Banbury Board of Health, L. R. 1 Eq. 42; Goldsmid v. Tunbridge Wells Commissioners, L. R. 1 Ch. 349; L. R. 1 Eq. 161; Attorney General v. Colney Hatch Lunatic Asylum, L. R. 4 Ch. 146, 163; Attorney General v. Leeds, L. R. 5 Ch. 583.

2 Ibid.

3 Ibid.; Attorney General v. Birmingham, 4 K. & J. 528, 548; Attor

ney General v. Bradford Canal, L. R. 2 Eq. 71, 84; Attorney General v. Gee, L. R. 10 Eq. 131, 135; Breed v. Lynn, 126 Mass. 367, 370; Boston Rolling Mills v. Cambridge, 117 Mass. 396.

4 Gray v. Bartlett, 20 Pick. 186; Clark v. Peckham, 10 R. I. 35; 9 R. I. 455; Central Wharf v. India Wharf, 123 Mass. 567.

5 Ibid.

6 Ibid.; Keyport Steamboat Co. v. Farmers' Transportation Co., 18 N. J. Eq. 13, 511. As to maintaining use and occupation for the use of a dock or unimproved shore, see Easby v. Patterson, 19 Am. L. Reg. N. s. 145; Moore . Jackson, 2 Abb. N. C. 211; Stewart v. Fitch, 31 N. J. L. 17; Hall v. Jacobs, 7 Bush, 595.

navigation or of a similar right of access by adjoining proprietors. If a wharf is extended not only in front of one's own land, but also in front of that of an adjoining proprietor, it is an encroachment upon the latter's rights which may be redressed by injunction. In Marshall v. Ulleswater Steam Navigation Co.,2 the owner of the soil of a navigable lake, which was a public highway, permitted a pier to be erected on his land, and afterwards maintained it, and it was held that he had no cause of action against the owners of steamboats who landed and embarked passengers at the pier, it appearing that this structure prevented the defendants from using their own adjoining land as a landing. In Original Hartlepool Collieries Co. v. Gibb,3 it was held that a navigable river, being a public highway, open to the reasonable use of all subjects of the realm, a riparian proprietor was entitled to moor to his wharf for a reasonable time vessels which overlapped the wharf of an adjoining proprietor, if the free and necessary access to the. latter wharf was not obstructed thereby. The right of each of several adjoining proprietors is the right to approach the front of his land or wharf, and one proprietor has no cause of action against his neighbor, if the latter's improvement of his own estate and in front thereof prevents vessels from approaching the side of the former's wharf.4

§ 155. This right of access is not lost by the gradual formation of new soil upon the margin of the water caused by the action of the tides or current. Estates bordering upon navigable waters often derive a great part of their value from that circumstance; and the riparian owners, if deprived of the benefit of that situation by extraneous additions, would suffer hardship and injustice, even when they obtained the full proportion of the land measured by the

1 Thornton v. Grant, 10 R. I. 477, 487; Gray v. Bartlett, 20 Pick. 186; Frink v. Lawrence, 20 Conn. 121; Van Der Brooks v. Currier, 2 Mich. N. P. 21.

ties Railway Co. v. Darling, 5 J. Scott, N. s. 821.

3 5 Ch. D. 713; ante, § 96.

4 Gray. Bartlett, 20 Pick. 186; United States v. Bain, 3 Hughes, 593.

2 L. R. 7 Q. B. 166; Eastern Coun- See Davis v. Atkins, 9 Cush. 13.

surface.1 Land formed by alluvion, or the gradual and imperceptible accretion from the water, and land gained by reliction, or the gradual and imperceptible recession of the water, belong to the owner of the contiguous land to which the addition is made.2 There is no distinction in this respect between soil gained by accretions and that uncovered by reliction. The change is imperceptible when it is not discernible in its progress, though the fact that there has been an increase may be perceptible year by year or at shorter intervals. Conversely, land gradually encroached upon by navigable waters ceases to belong to the former owner. The external bounds of estates situated upon the shore of the sea or of navigable rivers may thus gradually shift as the water recedes or encroaches, although the right

1 Deerfield v. Arms, 17 Pick. 41, 45; Cambre v. Cohn, 8 N. S. (La.) 576.

2 Rex v. Yarborough, 3 B. & C. 91; 5 Bing. 163; 2 Bligh (N. S.) 147; 1 Dow (N. S.) 178; New Orleans v. United States, 10 Peters, 662; County of St. Clair v. Lovington, 23 Wall. 46; Perry v. Pratt, 31 Conn. 442; Morgan v. Scott, 26 Penn. St. 51; Gerrish v. Clough, 48 N. H. 9; Morgan v. Livingston, 6 Martin, 216; Livingston v. Heerman, 9 Martin, 656; Ingraham v. Wilkinson, 4 Pick. 268, 273; Deerfield v. Arms, 17 Pick. 41; Hopkins Academy v. Dickenson, 9 Cush. 551; Spigener v. Cooner, 8 Rich. (S. C.) 301; Chapman v. Hoskins, 2 Md. Ch. 485; Patterson v. Gelston, 23 Md. 432; Goodsell v. Lawson, 42 Md. 348; Baltimore Railroad Co. v. Chase, 43 Md. 23; Ridgely v. Johnson, 1 Bland Ch. 316, note; Barrett v. New Orleans, 13 La. Ann. 105; Barre v. New Orleans, 22 La. Ann. 613; Hagan v. Campbell, 8 Porter, 9; Schultes's Aquatic Rights, 116; 2 Am. Law Journ. 283, 393. The right to alluvion depends upon contiguity, and the accretions belong to the land immediately adjoining the water, however narrow it may be, or whatever may

be the size of the parcel behind it. Saulet v. Shepard, 4 Wall. 502; Bates v. Illinois Central Railroad Co., 1 Black, 204, 208; Bristol v. Carroll County, 95 Ill. 84; Beaufort v. Duncan, 1 Jones (N. C.) 234; Posey v. James, 7 Lea (Tenn.) 98.

3 Handly v. Anthony, 5 Wheat. 380; Boorman v. Sunnuchs, 42 Wis. 233, 244.

Ibid.; Attorney General v. Chambers, 4 De G. & J. 70; Gifford v. Yarborough, 5 Bligh, 163; Hale, De Jure Maris, c. 1, 4, 6; Just. Inst. lib. 2, tit. 1, § 20. In Boorman v. Sunnuchs, 42 Wis. 233, 245, it was said that if a portion of the bed of a pond is laid bare within a day or week, although the human eye is not sufficiently acute to detect the process, yet the portion laid bare would not pass to the owner of the adjoining land, and that, while no precise rule of universal application can be laid down on the subject, yet the proofs should show more than the inability of a person who is watching the process, to detect the recession of the water.

5 In re Hull & Selby Railway Co., 5 M. & W. 327; Foster v. Wright, 4 C. P. D. 438.

to the shore itself of course remains in the Crown or State.1 The law upon this subject is based upon the maxim Qui sentit onus debit sentire commodum, since the owner takes the chance of gradual loss as well as of gradual gain;2 and upon the impracticability of identifying from day to day the small additions and subtractions caused by the constant

1 Scratton v. Brown, 4 B. & C. 485; necessity which exists for some such Rex v. Yarborough, supra. rule of law for the permanent protection and adjustment of property.' It must always be borne in mind that the owner of lands does not derive benefit alone, but may suffer loss from the operation of this rule; for if the sea gradually steals upon the land, he loses so much of his property, which is thus silently transferred by the law to the proprietor of the seashore. If this be the true ground of the rule, it seems difficult to understand why similar effects, produced by a party's lawful use of his own land, should be subject to a different law, and still more so if these effects are the result of operations upon neighboring lands of another proprietor. Whatever may be the nature and character of these operations, they ought not to affect a rule which applies to a result and not to the manner of its production. Of course, an exception must always be made of cases where the operations upon the party's own land are not only calculated, but can be shown to have been intended, to produce this gradual acquisition of the sea-shore, however difficult such proof of intention may be." Accretions assume the quality of the land to which they attach themselves. If the lord of a manor is entitled to such land as part of his demesne, the accretions become his absolutely; if he is only entitled subject to a copyhold interest, then they will be his subject to such interest; and if the land is part of the waste of the manor, the lord's right to the increase will be subject to the rights of

2 County of St. Clair v. Lovington, 23 Wall. 46, 63; New Orleans v. United States, 10 Peters, 662, 717; Chapman v. Hoskins, 2 Md. Ch. 485; Giraud v. Hughes, 1 Gill & J. 249; Berry v. Snyder, 3 Bush, 266, 277; Smith v. Public Schools, 30 Mo. 290; Stevens v. Paterson Railroad Co., 34 N. J. L. 532, 540; Municipality No. 2 v. Orleans Cotton Press, 18 La. 213. Blackstone and others refer to the maxim, De minimis lex non curat, as being the foundation of the rule. 2 Black. Com. 262; Rex v. Yarborough, above cited; Woolrych on Waters, 445. In Attorney General v. Chambers, 4 DeG. & J. 55, 68, Lord Chelmsford, L. C., said: "I am not quite satisfied that the principle de minimis non curat lex is the correct explanation of the rule on this subject; because, although the additions may be small and insignificant in their progress, yet, after a lapse of time, by little and little, a very large increase may have taken place which it would not be beneath the law to notice, and of which the party who has the right to it can clearly show that it formerly belonged to him, he ought not to be deprived. I am rather disposed to adopt the reason assigned for the rule by Baron Alderson, in the case of The Hull and Selby Railway Company, (a) viz., 'That which cannot be perceived in its progress is taken to be as if it never had existed at all.' And as Lord Abinger said in the same case, The principle,' as to gradual accretion, 'is founded on the