valid city grant, although it is an incorporeal right, is nevertheless property, or a property right which can only be taken away by the legislature by the exercise of the right of eminent domain, on making compensation to the owner of the wharfage right. By § 264 (106). Rights of Riparian Owner as to Wharves. the common law of England, both the title and the dominion of the sea and of rivers and arms of the sea, where the tide ebbs and flows, and of all the lands below high-water mark, within the jurisdiction of the Crown of England, are in the King. Such waters and the land boats and merchandise. Swartz v. Flatboats, 14 La. An. 243; s. P. Keokuk v. Keokuk Packet Co., 45 Iowa, 196. If a city is entitled to the wharfage from public wharves, and the owner of a lot adjacent to such wharf receives wharfage, he is liable to the city therefor. Baltimore v. White (assumpsit), 2 Gill (Md.), 444. The right, as between private persons and a city corporation, to the money collected for wharfage, may be tried in an action for money had and received. Murphy v. Montgomery City Council, 11 Ala. 586. See Grant v. Davenport, 18 Iowa, 179; Langdon v. Mayor, &c. of New York, 93 N. Y. 129; Williams v. Mayor, &c. of New York, 105 N. Y. 419; Matter of Mayor, &c. of New York, 113 N. Y. App. Div. 84, 87. For measure of compensation to the wharf proprietor when his right of wharfage is taken by eminent domain, see Kingsland v. Mayor, &c. of New York, 110 N. Y. 569; Matter of New York City, 95 N. Y. App. Div. 501. The word wharfage is usually ordinarily employed to designate the charge made for the use of a wharf for the purpose of loading or unloading freight on or from vessels lying at its side. Baltimore v. Baltimore & P. S. B. Co., 104 Md. 485; 65 Atl. Rep. 353. A wharf is a structure on the margin of navigable waters alongside of which vessels can be brought for the purpose of being conveniently loaded or unloaded, and wharfage is the fee paid for tying vessels to a wharf, or for loading goods on a wharf or shipping them therefrom. Per Earl, J., in Langdon v. Mayor, &c. of New York, 93 N. Y. 129, 151. The right to collect wharfage is an incorporeal right incident to the use of a wharf for the mooring, loading, and unloading of vessels. Mayor, &c. of New York v. Mabie, 13 N. Y. 151; Eastman v. Mayor, &c. of New York, 152 N. Y. 468, aff'g 13 N. Y. Misc. 774. In the absence of a statute regulating charges, a wharfinger is entitled to recover upon an implied contract the reasonable value of the use of his wharf. Woodruff v. Havermeyer, 106 N. Y. 129; International Hide, &c. Co. v. New York Dock Co., 93 N. Y. App. Div. 562. The legislature may confer upon a municipality the power to regulate the use of a public wharf. The wharfinger exercises a public employment, and is therefore subject to constitutional legislative control. Langdon v. Mayor, &c. of New York, 93 N. Y. 129, 130, 161; Matter of Union Ferry Co., 98 N. Y. 139, 156; Buffalo v. Delaware, L. & W. R. Co., 68 N. Y. App. Div. 488, 500, aff'd 178 N. Y. 561. A lease of "all and singular, the wharfage which may arise, accrue, or become due from the use and occupation" of certain described public wharf property is not a lease of the wharf itself, but is merely a lease of the incorporeal right to collect wharfage incident to the use of the wharf by vessels engaged in commerce. If the city, the lessor, fails to put the lessee in possession of the granted right to collect wharfage, the measure of damages is not the value of the use of the wharf for the purposes of the lessee's private business, but the difference between the rent reserved and the value of the use of the wharf at the rate of wharfage fixed by law. Eastman v. Mayor, &c. of New York, 152 N. Y. 468, aff'g 13 N. Y. Misc. 774. Where a city owned half of the pier it was held that it had no right to so use its half as to render the pier useless to the owner of the other half or to prevent the public use of the pier. Hill v. New York, 139 N. Y. 495. which they cover, either at all times, or when the tide is in, are incapable of ordinary occupation, cultivation, and improvement; and their natural and primary uses are public in their nature, for highways of navigation, and commerce, domestic and foreign, and for the purpose of fishing by all the King's subjects. Therefore the title, jus privatum, in such lands, as of waste and unoccupied lands, belongs to the King as the sovereign; and the dominion thereof, jus publicum, is vested in him as the representative of the nation and for the public benefit.' The English possessions in America were claimed by right of discovery. Having been discovered by subjects of the King of England, and taken possession of in his name, by his authority, or with his assent, they were held by the King as the representative of and in trust for the nation; and all vacant lands and the exclusive power to grant them, were vested in him. The various charters granted by different monarchs for large tracts of territory on the Atlantic coast conveyed to the grantees both the territory described and the powers of government, including the property and the dominion of lands under tide waters. Upon the American Revolution all the rights of the Crown and of Parliament vested in the several states, subject to the rights surrendered to the national government by the Constitution of the United States. In this manner the governments of the Colonies, and their successors, the original States of the Union, became vested with the title to lands under navigable waters; and the new States admitted to the Union since the adoption of the Constitution have the same rights as the original States in the tide waters, and in the lands below the high-water mark within their respective jurisdictions.3 1 Shively v. Bowlby, 152 U. S. 1, 11. This may justly be considered as the leading case in this country on the subject of the title and rights of riparian and littoral proprietors, the rights of the several States and of the general government. In Langdon v. Mayor, &c. of New York, 93 N. Y. 129, 155, Earl, J., describing the nature of the estate or right of the crown in navigable waters and the soil thereunder, said: "From the earliest times in England the law has vested the title to, and the control over, the navigable waters therein, in the crown and parliament. A distinction was taken between the mere ownership of the soil under water and the control over it for public purposes. The ownership of the soil, analogous to the ownership of dry land, was regarded as jus privatum, and was vested in the crown. But the right to use and control both the land and water was deemed a jus publicum, and was vested in parliament. The crown could convey the soil under water so as to give private rights therein, but the dominion and control over the lands, in the interest of commerce and navigation, for the benefit of all the subjects of the kingdom, could be exercised only by parliament. In this country the State has succeeded to all the rights of both crown and parliament in the navigable waters and the soil under them, and. here the jus privatum and the jus publicum are both vested in the State." 2 Shively v. Bowlby, 152 U. S. 1, 14; Stevens v. Paterson & N. R. Co., 34 N. J. L. 532; Langdon v. Mayor, &c. of New York, 93 N. Y. 129, 155. Pollard v. Hagan, 3 How. (U. S.) 212; Weber v. Cal. Harbor Com'rs, 18 The same doctrine which in England is applied only to waters where the tide ebbs and flows is applied in this country to the Great Lakes, which are treated as inland seas.1 It has, also, in some of the States, been extended to navigable rivers, such as the Mississippi, Missouri, and Ohio Rivers. But the governments of the Colonies and their successors the States, with a view to induce persons to erect wharves for the benefit of navigation and commerce, early allowed to the owners of lands bounding on tide waters greater rights and privileges in the shore below high-water mark than they had in England. The nature and degree of such rights and privileges differed in the different Colonies and States, and in some were created by statute, while in others they rested upon usage only. Each State has dealt with the lands under the waters within its boundaries according to its own views of justice and policy, reserving its own control over such lands, or granting rights therein to individuals or corporations, whether owners of the adjoining upland or not, as it considers for the best interests of the public, and there is no universal and uniform law upon the subject. Hence there is in the United States no general rule of law applicable to all lands under navigable waters, and the Supreme Court of the United States has held that the title and rights of riparian or littoral proprietors in the soil below high-water mark of navigable waters are governed by the local laws of the several States, subject to the rights granted by the Federal Constitution to the United States for the purpose of regulating and improving navigation." The right of a riparian owner to establish a wharf on his own land extending over the shore between high and low water marks, and lands under water for the purpose of reaching the point of ordinary navigability, is not uniformly conceded. In some States it is held— Wall. (U. S.) 57; Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, 435; Shively v. Bowlby, 152 U. S. 1, 26; s. c. 22 Oreg. 410. Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, 435. 2 In Hardin v. Jordan, 140 U. S. 371, 382, it is said that in this country the rule has been extended to not only the Great Lakes, which are treated as inland seas, but also in some of the States to navigable rivers, as the Mississippi, Missouri, and the Ohio, and in Pennsylvania to all the navigable rivers of the State; but it depends upon the law of each State to what waters and to what extent the prerogative of the State over the lands under water shall be exercised. In Shively v. Bowlby, 152 U. S. 1, 31, it is pointed out that the decisions of the Supreme Court of the United States regarding the shores of waters where the ebb and flow of the tide from the sea is not felt, but which are merely navigable, should be considered with reference to the facts upon which they were made, keeping in mind the local laws of the different States as well as the provisions of the Acts of Congress relating to such waters. The court also examines the decisions on this subject. 3 Shively v. Bowlby, 152 U. S. 1, 18. Shively v. Bowlby, 152 U. S. 1, 26. 5 Barney v. Keokuk, 94 U. S. 324; Shively v. Bowlby, 152 U. S. 1. sometimes because of long-continued usage, sometimes by virtue of statutory enactments, and sometimes upon the interpretation of the common law adopted by the courts that, for the purpose of making available the right of the riparian owner to access to navigable waters, he may make a landing, dock, wharf, or pier extending to the ordinary point of navigation for his own use or for the use of the public, subject to such general rules and regulations as the legislature may prescribe for the protection of the rights of the public, and subject also to the right of the United States to exercise its powers for the purpose of regulating and improving navigation.1 The right of the riparian owner to construct a landing or Connecticut. Title to lands below high-water mark is in the State. By ancient usage, without any early legislation, the proprietor of the upland has a right, in the nature of a franchise, to wharf out and occupy the flats, even below low-water mark, provided he does not interfere with navigation; and this right may be conveyed separately from the upland; and the fee in flats so reclaimed vests in him. Ladies' Seamen's Friend Society v. Halstead, 58 Conn. 144, 150; Prior v. Swartz, 62 Conn. 132, 136; Mather v. Chapman, 40 Conn. 382; Ockerhausen v. Tyson, 71 Conn. 31; New York, N. H. & H. R. Co. v. Long, 72 Conn. 10. The exercise of this right is subject to all regulations which the State may see fit to impose by authorizing commissioners to establish harbor lines, or otherwise. State v. Sargent, 45 Conn. 358. But it has been intimated that it cannot be appropriated by the State to a different public use without compensation. Farist Co. v. Bridgeport, 60 Conn. 278. In some of the decisions of the 1 Alaska, 533; United States v. Roth, Supreme Court of the United States, 2 Alaska, 257. language is to be found which seems to recognize the right of the riparian owner to wharf out to the point of navigation. See Dutton v. Strong, 1 Black (U. S.), 23; St. Paul & Pac. R. Co. v. Schurmeir, 7 Wall. (U. S.) 272, 289; Yates v. Milwaukee, 10 Wall. (U.S.) 497; Weber v. Harbor Com'rs, 18 Wall. (U. S.) 64; Potomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 U. S. 682, 683; Illinois Cent. R. Co. v. Illinois, 146 U. S. 445. The cases in which this language was used have more recently been examined and reviewed by the court, and the conclusion which it has reached appears to be that, whilst the cases were rightly decided, the question of the right to wharf out was not at issue in them, and, therefore, not in fact before the court, and that the language used by the court so far as it appears to lay down a rule of general application was unnecessary. See Shively v. Bowlby, 152 U. S. 1, 36. It would seem, however, that in some at least of the States in which these cases arose the language used by the court is the foundation for the rule of law which has been adopted therein. Alaska. A riparian owner on tide water has no title to the tide lands in front of his premises. The title thereto is held by the United States in trust for the future State. Sutter v. Heckman, 1 Alaska, 81; United States v. Roth, 2 Alaska, 257. But he has a right of access over the tide lands and the right to construct a wharf thereon for the purpose of reaching navigable water. Martin v. Heckman, 1 Alaska, 165; Sutter v. Heckman, 1 Alaska, 188; Lewis v. Johnson, 1 Alaska, 529; Juneau Ferry Co. v. Alaska S. S. Co., Florida. By a statute of 1856, the title to the submerged lands of navigable waters from the channel to the shore was vested in the then riparian owners or their grantees. Rivas v. Solary, 18 Fla. 122, 126; Sullivan v. Moreno, 19 Fla. 200. By statute, also, the riparian owner has the right to wharf out or fill in out to the channel, provided his improvements are for the benefit of commerce and navigation. Sullivan v. Moreno, 19 Fla. 200; Dumas v. Garnett, 32 Fla. 64; State v. Black River Phosphate Co., 32 Fla. 82, 84. Indiana. The title of a riparian proprietor upon the Ohio River ex wharf is largely founded upon equitable considerations growing out of the fact that riparian owners everywhere upon the numer tends to low-water mark. Stinson v. Butler, 4 Blackf. (Ind.) 285; Cowden v. Kerr, 6 Blackf. (Ind.) 280; Doe v. Hildreth, 2 Ind. 274; Bainbridge v. Sherlock, 29 Ind. 364; Gentile v. State, 29 Ind. 409; Martin v. Evansville, 32 Ind. 85. The riparian owner, though his title extend no further than to the stream not embracing the shore or lands between high and low water mark, may build a wharf for the accommodation of the public navigating the river and for his own private profit, not interfering with the navigation. Sherlock v. Bainbridge, 41 Ind. 35, 42. But the right thus to construct and use a wharf is subject to the paramount right of the public to navigate and use the river as a common highway, and can in no way interfere with such use of the river for the public. Hence the owner of a wharf has no cause of action against a person who moors his vessel at an adjoining wharf, although the effect thereof is necessarily to obstruct access. Sherlock v. Bainbridge, 41 Ind. 35. Iowa. The title of a riparian proprietor on the banks of the Mississippi extends only to ordinary high-water mark and the soil between high and low water mark as well as the bed of the river belongs to the State. Barney v. Keokuk, 94 U. S. 324, 336; McManus v. Carmichael, 3 Iowa, 1; Haight v. Keokuk, 4 Iowa, 199; Tomlin v. Dubuque, &c. Ry. Co., 32 Iowa, 106; Musser v. Hershey, 42 Iowa, 356; Houghton v. Chicago, D. & M. R. Co, 47 Iowa, 370; Renwick v. D. & N. W. R. Co., 49 Iowa, 664; Wood v. Chicago, R. I. & P. R. Co., 60 Iowa, 456; Steele v. Sanchez, 72 Iowa, 65; Chicago, B. & Q. R. Co. v. Porter, 72 Iowa, 426; Bennett v. Nat. Starch Mfg. Co., 103 Iowa, 207; Holman v. Hodges, 112 Iowa, 714; Carr v. Moore, 119 Iowa, 152. By the common law the riparian owner has no right in the waters of the Mississippi River or the bed or shore thereof, and the fact that he is deprived of access by the construction of a railroad along the banks between high and low water mark gives him no cause of action. Tomlin v. Dubuque, B. & M. R. Co., 32 Iowa, 106; Ingraham v. Chicago, D. & M. R. Co., 34 Iowa, 249, 252; Cook v. Burlington, 36 Iowa, 357; Chicago, B. & Q. R. Co. v. Porter, 72 Iowa, 426. The State or a city, as its agency, representing the public, has the right to widen and improve a street upon the bank of a river to any extent on the river side by filling in below high water and building wharves and levees for the public accommodation. Barney v. Keokuk, 94 U. S. 324, 339. But it has been said in this State that a riparian owner (outside of any incorporated city or town) may erect wharves or landing places on the shores of navigable streams if they conform to the State regulations, if any, and do not obstruct the paramount right of navigation. Grant v. Davenport, 18 Iowa, 179, 192. And in later cases a right at common law to wharf out is also recognized even when the lands are within a city; and it has been said that the right does not exist by virtue of any proprietorship in the soil between high and low water mark; that it is a mere franchise appurtenant to the riparian proprietorship; that it depends upon the ownership of the adjacent soil; and that it is not the subject of sale independently of a conveyance of the land to which it is appurtenant. Musser v. Hershey, 42 Iowa, 356, 361; Renwick v. D. & W. N. R. Co., 49 Iowa, 664, 672. In this State a statute was passed in 1874, permitting riparian owners on the Mississippi and Missouri Rivers to construct piers, cribs, booms, &c., and requiring companies constructing railroads along the shore or over the bed of the river to compensate riparian owners for the damages to riparian property caused thereby. See Renwick v. D. & N. W. R. Co., 49 Iowa, 664, 666, aff'd 102 U. S. 180; Mills v. Evans, 100 Iowa, 712. Louisiana. By the Constitution of 1898, art. 290, riparian owners of property on navigable rivers, lakes, and streams within cities or towns having a population exceeding 5,000 have the right to erect and maintain on the batture or banks such wharves, buildings, and improvements as may be required for the purpose of commerce and navigation; but they must first obtain the consent of the council or other governing authority and the board of levee commissioners, and must erect the wharfs, &c., in conformity to plans and specifications submitted to and |