right to improve navigation exists because in every grant of lands bounded by navigable tide waters made by the crown or the State as trustee for the public, there is reserved by implication the right to so improve the water front as to aid navigation for the benefit of the general public without compensation to the riparian owner.' But the paramount right of the State must be exercised strictly in furtherance of the trust under which it holds the lands under water. It must be exercised solely for the purpose of improving navigation. If a municipal corporation which is vested with the title to lands under water constructs thereon a speedway or pleasure drive from which are excluded all forms of commercial traffic or intercourse, and which can be crossed only by means of subways or overhead bridges available to pedestrians alone, such construction, although made pursuant to statutory authority from the State, is not an exercise by the city of a power conferred upon it, as trustee for the public, in and to the tide way and waters beyond to make improvements for the benefit of navigation, and it is liable to a riparian owner for the damages caused to his riparian property by the construction thereof in such a manner as to exclude him from access to the river.2

1 Sage v. Mayor, &c. of New York, 154 N. Y. 61, aff'g 10 N. Y. App. Div. 294. See also Knickerbocker Ice Co. v. 42nd St., &c. R. Co., 176 N. Y. 408, aff'g 85 N. Y. App. Div. 530; Manigault v. Springs, 199 U. S. 473. The power of the State to improve navigation may be delegated to a board appointed by the State or to private individuals who are willing to make the improvement at their own expense. Lane v. New Haven Harbor Com'rs, 70 Conn. 685. The right of a riparian owner who also owns the bed of the waters to maintain a tunnel under navigable waters is subject to the paramount public right of navigation, and either by virtue of such right or by virtue of an express stipulation in a city ordinance permitting the tunnel to be constructed that it shall not interrupt navigation, the owner of the tunnel may be required to lower it at his own expense so as to permit the harbor or river to be dredged to greater depth. West Chicago Street R. Co. v. Chicago, 201 U. S. 506, aff'g 214 Ill. 9; s. c. 203 Ill. 551. It has been held that the rights of a railroad company to bridge over a natural water course crossing its right of way acquired under its general powers, are not superior and

paramount to the right of the public to use the water course for the purpose of draining lands in its vicinity pursuant to statute; and that the railroad company may be required, at its own expense, to remove the obstructions to the water course, such as the foundations of the bridge, &c., although it may render the rebuilding of the bridge necessary. The fact that the bridge, when constructed, did not constitute any obstruction to the then flow of water, and that the change is rendered necessary by increased flow resulting from the drainage operations, does not relieve the railroad company from this obligation. Chicago, B. & Q. R. Co. v. Drainage Com'rs, 200 U. S. 561, aff'g 212 Ill. 103. A fortiori, it would seem that if the changes were rendered necessary by improvements for purposes of navigation the same rule must be applied.

2 Matter of City of New York, 168 N. Y. 134, rev'g 60 N. Y. App. Div. 122. If a riparian owner has without the consent of the State constructed a wharf, the State cannot compel its removal unless it shows that the wharf is actually a nuisance or an obstruction to navigation and interferes with a public right or use. It is only under

§ 266 (107). Establishment of Dock and Harbor Lines. The rights of riparian proprietors in respect to the erection of wharves are subject to such reasonable limitations and restraints as Congress and the legislature of the State may think it necessary and expedient to impose. Therefore it is competent for Congress and the legislature to pass acts establishing harbor and dock lines, and to take away the right of the proprietors to build wharves on their own land beyond the lines, even when such wharves would be no actual injury to navigation.' Congress has, by legislation, prohibited the construction of

such circumstances, or when necessity of the navigable channel by building exists for the improvement of the water wharves and docks to it for that purfront at that place, that the State can pose; and said that if the city deemed interfere with the wharf. People v. the removal of the wharf in question Mould, 37 N. Y. App. Div. 35. See necessary in the prosecution of any also People v. Woodruff, 30 N. Y. App. general scheme of widening the channel Div. 43. or improving the navigation of the river, it must first make the owner compensation for his property thus taken for the public use. As to this case, see infra, § 272. Nature and extent of riparian rights fully considered in Lyon v. Fishmongers' Co., L. R. 1 App. Cas. 662; Barney v. Keokuk, 94 U. S. 324.

wharves outside the harbor lines fixed by the secretary of war without his permission. This is an exercise of the paramount right of Congress to regulate commerce and navigation, and operates as a limitation upon both the State and persons to whom the State may grant the right to construct docks and wharves. But within the line so established a riparian owner is not thereby vested with a right to construct and maintain docks and wharves independently of any regulation and control by the State. In the present state of legislation the right to do so depends upon the State and national governments.

by the secretary of war, the State, or a city, by virtue of statutory authority, may prescribe another and inner line beyond which wharves and docks may not be constructed.1 When, by statute, by custom, or by the interpretation of the common law adopted by the courts, the riparian owner has the right to construct a dock or wharf in front of his premises, the land under water on which he has the right to so construct is not ascertained by extending lines at right angles to the shore if the contour or thread of the stream is such that thereby owners on either side will be deprived of access to the navigable channel, but the lines are to be drawn at right angles to the navigable channel to the boundaries of the riparian owners' lands, so as to divide the tide-water shore and navigable front equitably among the riparian owners. Statutory authority to a city to regulate the manner in which riparian owners may construct their wharves does not authorize the city to confer the right on a riparian owner to construct a wharf or dock beyond the lines so drawn. It has been said that the establishing of a dock or harbor line is an abandonment of the public easement in so much as lies between the dock line and high-water mark, and that it gives to the owners of the upland the privilege of filling in and building out to such line. But the more correct view would seem to be that, the right to construct a wharf

2

410; Cobb v. Com'r of Lincoln Park, 202 Ill. 427; Portland v. Montgomery, 38 Oreg. 215; supra, § 265. See also Harbor Line Com'rs v. State, 2 Wash. 530.

1 Portland v. Montgomery, 38 Oreg. 215. No right exists to fix a dock line or to delegate to a municipality the power to do so in that portion of the waters of a river which are not at the time navigable for any purpose. Grand Rapids v. Powers, 89 Mich. 94. In Michigan, it has been said that a dock line cannot be fixed without notice to property owners and a hearing accorded to them. Grand Rapids v. Powers, 89 Mich. 94, 103. But see to the contrary Lane v. New Haven Harbor Com'rs, 70 Conn. 685.

2 Jones v. Johnston, 18 How. (U. S.) 150; Emerson v. Taylor, 9 Me. 42; Baltimore v. Baltimore & P. S. P. Co., 104 Md. 485; 65 Atl. Rep. 353; Knight v. Wilder, 2 Cush. (Mass.) 199; Rust v. Boston Mill Corp., 6 Pick. (Mass.) 158; Deerfield v. Arms, 17 Pick. (Mass.) 41; Wonson v. Wonson, 14 Allen (Mass.), 71, 79; Tappan v. Boston Water Power Co., 157 Mass. 24; Clark v. Campau, 19 Mich. 325, 328; Bay City Gas Light Co. v. Indus

trial Works, 28 Mich. 182; Grand Rapids Ice & Coal Co. v. South Grand Rapids, &c. Co., 102 Mich. 227; Montgomery v. Shaver, 40 Oreg. 244; Menasha Wooden Ware Co. v. Lawson, 70 Wis. 600.

3 Montgomery v. Shaver, 40 Oreg. 244. Statutory authority to grant lands under water construed to confer authority to grant the same to the owner of the ripa only. Fitzgerald v. Faunce, 46 N. J. L. 591; Polhemus v. Bateman, 60 N. J. L. 163. But a riparian owner by maintaining a dock or wharf in front of his neighbor's lands for the statutory period may obtain a prescriptive right to so maintain it. Montgomery v. Shaver, 40 Oreg. 244.

Yates v. Judd, 18 Wis. 118, 119.

In Minnesota, where the riparian owner has not only title to land under navigable waters to low-water mark, but has also the incidental right to wharf out to the point of navigation, it has been held that the establishment of a dock or harbor line by legislative authority gives him the privilege of filling in and building out to such line. Miller v. Mendenhall, 43 Minn. 95; Bradshaw v. Duluth Imp. Mill Co., 52 Minn. 59.

having been conferred by statute or grant, or existing as an incident to the ownership of the upland, the establishment of a dock or harbor line is merely a declaration that, whilst the harbor line so established continues in force, the exercise of the right to wharf within the limits of the dock or harbor line is not an obstruction to or interference with the public right of navigation.

§ 267 (108). Right to erect Public Wharves. rian proprietor has the right to erect wharves which are private in their nature, but which may be used by the public with the consent of the owner, express or implied, the right to erect public wharves and to demand tolls or fixed rates of wharfage is, according to the better view, a franchise, which must have its origin in a legislative grant.'