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.2 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 1836.5 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. It may construct piers and wharves at the public ers, 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; Whetmore v. Atlantic White Lead Co., 37 Barb. 70,, 96; Getty v. Hudson River Railroad Co., 21 Barb. 617. In. Delaware Canal Co. v. Lawrence, 2 Hun, 163; 56 N. Y. 612, the defendant had title, under patents from the State, to the soil under water on which the wharf was erected, and it was held that the only question was whether the wharf was a public nuisance because of interference with the navigation. 1 People v. Central Railroad Co., 42 N. Y. 283; 48 Barb. 478; State v. Babcock, 30 N. J. L. 29. See The Argo, 7 Ben. 304. 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, Ibid. 57; Luke v. Brooklyn, 43 Barb. 54; New York v. Hart, 16 Hun, 380; Furman v. New York, 5 Sand. 16; People v. Colgate, 9 Hun, 708; 67 N. Y. 512. 3 Ibid. 4 Ibid. 5 Wetmore v. Atlantic White Lead Co., 37 Barb. 70; People v. Kelsey, 38 Barb. 269; 14 Abb. Pr. 372; Wetmore . Brooklyn Gaslight Co., 42 N. Y. 384. 6 See cases in next note; also, Towle v. Palmer, 1 Rob. 437; 1 Abb. 2 Udall v. Brooklyn, 19 Johns. 175; Pr. N. s. 81; Towle v. Smith, 2 Rob. expense, and take the profits, when it owns the adjoining lots. It may lease the public wharves so erected.2 Since the charter of 1730, at least, the city has the right to convey this land, even below low-water mark, with the privilege of building wharves thereon, and receiving wharfage therefrom,3 subject to the power of the city to impose in the grant or by ordinance such conditions with respect to streets and wharves as are consistent with the laws of the State, and subject, also, to the control of the State in the establishment 489; Towle v. Remsen, 70 N. Y. 303; 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 r. 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. 1 Ibid.; Marshall v. Guion, 11 N. Y. 461 (overruling s. c. 4 Denio, 581, and Marshall v. Vultee, 1 E. D. Smith, 294); Thompson v. New York, 11 N. Y. 115; 3 Sand. 487; Furman v. New York, 10 N. Y. 567; Beach v. New York, 45 How. Pr. 357; New York v. Whitney, 7 Barb. 485; New York v. Scott, 1 Caines, 543; Murray v. Sharp, 1 Bosw. 539; Mayor v. Whitney, 7 Barb. 485; Mayor v. Rice, 4 E. D. Smith, 604. Under the charter of 1708, the city of New York acquired the vested right to maintain ferries and to take tolls therefrom forever between the city and Long Island. Benson v. New York, 10 Barb. 223; People v. New York, 32 Barb. 102; Darlington v. New York, 31 N. Y. 202. 2 Commissioners v. Clark, 33 N. Y. 251; Swords v. Edgar, 59 N. Y. 28; Clancy v. Byre, 56 N. Y. 129; Radway v. Briggs, 37 N. Y. 256; Hartford Steamboat Co. v. New York, 78 N. Y. 1; New York v. Price, 5 Sand. 542; Taylor e. Atlantic Ins. Co., 37 N. Y. 275; 9 Bosw. 369; 2 Bosw. 106; New York v. Hill, 13 How. Pr. 280; Taylor v. Beebe, 3 Rob. 262; Farmers' Loan Co. v. New York, 4 Bosw. 80. As to the powers of the commissioners of pilots, of the department of public docks and the harbormasters of New York, and formerly of the dock-master, see Commissioners v. Vanderbilt, 31 N. Y. 265; 2 Rob. 367; Commissioners v. Clark, 33 N. Y. 251; Commissioners v. Erie Railway Co., 41 N. Y. 619; 5 Rob. 366; New York v. Tucker, 1 Daly, 107; Adams v. Farmer, 1 E. D. Smith, 588; New York v. Rice, 4 E. D. Smith, 604; New York v. Ryan, 2 E. D. Smith, 368; Hoeft v. Seaman, 46 How. Pr. 24; 6 J. & Sp. 62; Moore v. Commissioners, 32 How. Pr. 184; People v. Mallory, 2 Sup. Ct. 76; 4 Id. 567; 46 How. Pr. 281; 2 Hun, 381; Commissioners v. Frost, 4 Daly, 353; People v. Deming, 1 Hilt. 271; 13 How. Pr. 441; Langdon v. New York, 6 Abb. N. C. 314; Hecker v. New York Balance Dock Co., 24 Barb. 215; 13 How. Pr. 549. 3 Van Zandt v. New York, 8 Bosw. 375; Commissioners v. Clark, 33 N. Y. 251; New York v. Hill, 13 How. Pr. 280; Coddington v. White, 2 Duer, 390; Murray v. New York, 1 Bosw. 539; Stevens v. Rhinelander, 5 Rob. 285; Borell v. New York, 2 Sand. 560. 4 Ross v. New York, 3 Wend. 333; Duryea v. New York, 2 Hun, 293; 4 Sup. Ct. 512; Vandewater v. New York, 2 Sand. 258. of harbor lines.1 In People v. Vanderbilt, it was held that a pier or crib erected beyond the water line established by law, under a permission from the authorities of the city, is abateable as a purpresture, even though it produces no injury to public rights.2 § 176. In Maryland, the right of extending improvements in the harbor of Baltimore was secured to the owners of the lands adjacent by the colonial act of 1745 and by a statute passed in 1784. The act of 1745 did not preclude the State from granting to a person other than the riparian owner the unoccupied soil of a navigable stream over which such proprietor might otherwise have been entitled, under this act, to make improvements.3 Without such authority a stranger could not improve in front of land belonging to another without the latter's consent. In 1862 the legislature enacted that the proprietor of land bounding on any navigable waters in the State should be entitled to the exclusive right of making improvements in the water in front of his lands. Under this statute no patent can be 1 People . Vanderbilt, 26 N. Y. 287; 28 N. Y. 396; 38 Barb. 282; 25 How. Pr. 140; People v. New York Ferry Co., 68 N. Y. 71; 7 Hun, 105; Hart v. Albany, 3 Paige, 559; People v. Cunningham, 1 Denio, 524; Wetmore v. Brooklyn Gaslight Co., 42 N. Y. 384; Walsh . New York Dry Dock Co., 77 N. Y. 448. 2 Ibid. Land under the waters of the Hudson River, either within or without the water-front, may be condemned for the uses of a railroad terminus. In re New York Central Railroad Co., 77 N. Y. 248. 3 Casey r. Ingloes, 1 Gill, 430; Wilson v. Ingloes, 11 Gill & J. 351; 6 Gill, 121, 152; Baltimore Railroad Co. r. Chase, 43 Md. 23, 36. See, generally, Giraud v. Hughes, 1 Gill & J. 249; Smith v. Yates, 2 H. & McHen. 244; Dugan v. Baltimore, 5 Gill & J. 357; Harrison v. Sterrett, 4 H. & McHen. 540; Baltimore v. White, 2 Gill, 444; Hammond v. Ingloes, 4 Md. 138; Day 4 Ibid.; Baltimore issued for land covered by navigable waters in front of the property of a riparian proprietor, so as to interfere with its prospective enjoyment by him.1 § 177. In Florida the title of the State to the shores of tide waters is divested by statute in favor of the littoral owners, who have the right to extend wharves to the channel, leaving space for the requirements of commerce.2 Similar rights are secured to the littoral proprietors by the statutes of Oregon, under which the right to build out a wharf is held to be severable from the ownership of the adjoining land.3 Where the grantor of land bounded by tide water reserved all privileges around the land, he was held to retain the right of wharfing.4 § 178. In Virginia it was early provided by statute that the limits or bounds of lands lying on the Atlantic Ocean, the Chesapeake Bay, and the rivers and creeks thereof within the State, should extend over the shore, and that the owners of such lands should possess exclusive rights and privileges to and along the shore to ordinary low-water mark. By a later statute, any person owning land upon a 1 Chapman v. Hoskins, 2 Md. Ch. 485; Day v. Day, 22 Md. 530; Patterson v. Gelston, 23 Md. 432; Goodsell v. Lawson, 42 Md. 348; Garitee v. Baltimore, 53 Md. 422; ante, § 175. A land-office patent conveys no title to tide lands. Chapman . Hoskins, 2 Md. Ch. 485. 2 Geiger v. Filor, 8 Fla. 325, 339; Alden . Pinney, 12 Fla. 348. Where the title to submerged land from lowwater mark to the channel of a river was given to riparian owners by statute, to benefit commerce, a conveyance by such an owner by metes and bounds, without reference to the river as a boundary, the owner retaining structures on the submerged land and the grantee understanding that he got no title thereto, conveys no title to such submerged land as an 4 Parker v. Rogers, 8 Oregon, 183. 5 1 Rev. Code of 1819, c. 87, p. 341; French. Bankhead, 11 Gratt. 136, 159. In 1705, when Norfolk was made a town, it was enacted that those who built out into the water before their own lots in the town, for the better conveniency of landing and shipping off goods, should have the whole benefit of such buildings, and the land so built upon should be reckoned as part of their lots. 3 Hen. Stat. at L. p. 412, c. 42; Hardy v. McCullough, 23 Gratt. 251, 262. 6 See Garrison v. Hall, 75 Va. 150. watercourse may erect a wharf, pier, or bulkhead in such watercourse, if the navigation is not obstructed thereby and the private rights of other persons are not injured.1 Subject to these conditions, a wharf may, in this State, be extended beyond low-water mark.2 § 179. Riparian owners upon navigable fresh rivers and lakes may construct, in the shoal water in front of their land, wharves, piers, landings, and booms in aid of and not obstructing the navigation.3 This is a riparian right, being dependent upon title to the bank and not upon title to the river bed. Its exercise may be regulated or prohibited by the State; but so long as it is not prohibited, it is a private right derived from a passive or implied license by the public.5 As it does not depend upon title to the soil under water, it is equally valid in those States in which the river beds are held to be public property and in those in which they are held to belong to the riparian proprietors usque ad filum aquae. This right is a mere franchise, in those localities 1 Code 1873, Sec. 59, c. 52; Norfolk City v. Cooke, 27 Gratt. 430; Alexandria Railway Co. v. Faunce, 31 Gratt. 761, 764; United States Bain, 3 Hughes, 593. υ. land Railroad Co., 45 Vt. 215; Sloan v. Biemiller, 34 Ohio St. 492, 513; Blanchard v. Porter, 11 Ohio, 138; Rippe v. Chicago Railroad Co., 23 Minn. 18; Brisbine v. St. Paul Rail 2 Norfolk City v. Cooke, 27 Gratt. road Co., Ibid. 114; Morrill v. St. 430, 438. 3 Dutton v. Strong, 1 Black, 1, 23; Railroad Co. v. Schurmeir, 7 Wall, 272; 10 Minn. 82; Yates v. Milwaukee, 10 Wall. 497; Atlee v. Packet Co., 21 Wall. 389; 2 Dillon, 479; Leigh v. Holt, 5 Biss. 338; Wisconsin River Improvement Co. v. Lyons, 30 Wis. 61; Delaphine v. Chicago Railway Co., 42 Wis. 214; Boorman v. Sunnachs, Ibid. 233; Diedrich Northwestern Railway Co., Ibid. 248; Stevens Point Boom Co. v. Reilly, 46 Wis. 237; 44 Wis. 295; Cohn v. Wausau Boom Co., 47 Wis. 314, 322; Walker v. Shepardson, 4 Wis. 486; Grant . Davenport, 18 Iowa, 179; Haight v. Keokuk, 4 Iowa, 199; Musser v. Hershey, 42 Iowa, 356; Ryan v. Brown, 18 Mich. 196; Austin v. Rut v. Anthony Falls Co., 26 Minn. 222; Ensminger v. People, 47 Ill. 384; Chicago v. Laflin, 49 Ill. 172; Meyers v. St. Louis, 8 Mo. App. 266; Bainbridge v. Sherlock, 29 Ind. 364; Sherlock v. Bainbridge, 41 Ind. 35; Laughlin v. Lamasco City, 6 Ind. 223; Thurman v. Morrison, 14 B. Mon. 367; Morrison v. Thurman, 17 Ibid. 257; Norfolk City v. Cooke, 27 Gratt. 430, 434 ; Alexandria Railway Co. v. Faunce, 31 Gratt. 761, 764. 4 Ibid.; Cohn v. Wausau Boom Co., 47 Wis. 314, 322; Diedrich v. Northwestern Railway Co., 42 Wis. 248; Stevens Point Boom Co. v. Reilly, 44 Wis. 295, 304; 46 Wis. 237. 5 Ibid. 6 Ibid. |