as usually understood, can have no application to this country, and that an owner of land on the Ohio can hold no farther than to high-water mark, and then says that wharves, &c., may be erected by him beyond that line, and also that the right of a riparian proprietor extends to the water, and that the right of fishing and of ferry is properly appurtenant to the land. A riparian proprietor is one, whose lands run to and abut on a stream, and go to the centre of the same. Such riparian proprietorship can only exist on watercourses where the soil covered by the water has been granted by the General or State Government to an individual, and not on a navigable river, dedicated as a public highway long before a sale of lands was made. There is no riparian ownership on navigable waters. The rights of the owner of lands there are clearly defined by the high-water line; and though the adjoining proprietor may build wharves, &c., for his own private use, the State, at any time, on information, can seize or arrent them. This rule, if the Ohio is a navigable stream, applies to that river. The owner of and on the verge of the bank, or the high-water line, has no more rights beyond that line than the owner of land on tide-waters. He has no exclusive right of ferriage; the State has the control of the land between high and low water mark. The river being navigable, the fishery is common to all the inhabitants of the United States. No one would have the hardihood to maintain that the fishery in the Mississippi or Ohio is private. An American common law hostile to such a right has grown up in this country; and, in the language of the learned and distinguished Redfield, "It seems to have been long ago conceded, in this country, that the Common Law rule in regard to navigability of fresh-water streams will not apply to the great inland streams of this continent, some of which are navigable for hundreds of miles above where the tide ebbs and flows." 2 1 2 Story's Equity Jurisprudence, §§ 921, 922, and cases there cited. 2 See note to the case of Veazie v. Dwinel, 3 Am. Law Reg., p. 727. CHAPTER IV. THE ACTION OF THE SEVERAL STATES AND OF THE FEDERAL GOVERNMENT. § 84. WHILE the courts have differed in opinion, as to whether or not the Common Law, as usually understood, was applicable to this country, the action of the different State Legislatures, without a single exception, and of the United States Congress, has been such as to exclude the idea, that this supposed Common Law prevailed in this country. § 85. In every one of the States, the Legislatures, before and after the Revolution and after the adoption of the Constitution, legislated as to the navigation of rivers, as to the fisheries therein, and as to erections on watercourses in manner inconsistent with and hostile to the rights of any one else. Thus, in New York, the State Legislature has always assumed to grant the islands in the rivers of the State, although there was no flow or reflow of the tide; and this action has been uninterrupted and uniform from the formation of the government to the present time, and can only be reconciled on the hypothesis that they regarded the great rivers of the State as a part of the property of the State. Discussing this subject, Davies, says,1 ,1 "Again, at a very early period in the history of this State, the Legislature organized a board designated and known as the "Commissioners of the Land-Office," to which was committed the care and custody of all lands owned by the State, and by which, as directed by the Legislature from time to time, grants thereof have been made. 1 People v. Canal Appraisers, 33 N. Y. (6 Tiffany) pp. 472-500. 1 This board was created by an act passed on the 5th of May, 1786; and the eighteenth section of the act declares, that it should and might be lawful for the said commissioners to grant such, and so much of, the lands under the water of navigable rivers, as they should deem necessary to promote the commerce of this State, provided, always, that no such grant should be made in pursuance of this act to any person whatever other than the proprietor or proprietors of the adjacent lands.1 This power, conferred upon the commissioners in relation to grants of land under the water of navigable rivers, was contained in the Revision of 1813, in the same language.2 On the 14th of April, 1815, the Legislature passed an act, by which the power of the commissioners to make grants of land under water were extended "to the lands under water on navigable lakes."3 In the Revision of the laws of 1830, the commissioners are declared "to have power to grant so much of lands under the waters of navigable rivers or lakes as they shall deem necessary to promote the commerce of this State." 4 By an act passed in 1850,5 this section of the Revised Statutes was amended to read as follows: "The commissioners of the land-office shall have power to grant in perpetuity, or otherwise, so much of the lands under the waters of navigable rivers or lakes as they shall deem necessary to promote the commerce of this State, or proper for the purpose of beneficial enjoyment of the same by the adjacent owner; but no such grant shall be made to any person other than the proprietor of the adjacent lands; and any such grant that shall be made to any other person shall be void." And such is the present authority on this subject vested in the commissioners of the land-office. Although the commissioners of the land-office are restricted, in grants made by them of lands under water in navigable rivers or lakes, to the pro 1 1 Greenl. Laws, p. 280. 3 Laws of 1815, chap. 199, p. 201. 5 Laws of 1850, chap. 283, p. 621. 2 1 Rev. Laws, p. 293, § 4. * 1 Rev. Stat. p. 208, § 67. prietors of the adjacent lands, yet there is no such restraint upon the powers of the State, as exercised through the Legislature. It is lawful for the State to make the grant to others than the adjacent proprietor.1 § 86. In Pennsylvania, legislation has been as unequivocal. As far back as 9th of May, 1771, we find, that the then proprietary gave his assent to an act of assembly, declaring the river Susquehanna a highway, and regulating its fisheries in such a manner as to be inconsistent with an exclusive right in any person whatever. Again, on the 16th of March, 1807,2 the Legislature of that State regulated the fisheries in the Susquehanna, in such manner as to be inconsistent with the individual ownership of the river. Reviewing the legislative action of that State, Brackenridge, J., could not help coming to the conclusion, that, both under the proprietary and under the commonwealth, the State exercised ownership "over all waters not included in surveys, and which have been made highways.' Islands arising in the river Susquehanna can be entered, and the bed of the river can be bought from the State from shore to shore, separate and apart from the lands above the waters.4 3 § 87. In South Carolina, rivers actually navigable have been regulated by the people since 1702; and most of the ninth volume of the statutes of South Carolina is filled with the subject.5 § 89. In Virginia, as far back as 1802, the Legislature enacted, that all unappropriated lands in the bay of Chesapeake, on the seashore, or on the shores of rivers or creeks, and all beds of rivers and creeks, which have been used as common to all the people of the State, shall continue to be 1 Gould v. Hudson River R.R., 2 Seldon R. 522. See also 17th Wend. 577, where all the legislative acts indicating ownership of the rivers by the State are collated. 28 Pa. St. Laws, p. 74. 4 Purdon's Digest (Stroud & Brightly), p. 526. 32 Binney, 175. 5 Edition of 1840. such common, and that any of the people of the State may fish, fowl, or hunt on the shores or beds. The law further provides, that subject to said rights, the limits or bounds of the several tracts of land lying on the seashores, the said bay and the rivers and creeks thereof, and the rights and privileges of the owners of such lands, shall extend to ordinary low-water mark, but no further, unless where a creek or one part thereof is comprised within the limits of a lawful survey.1 § 90. In New Jersey, a free and uninterrupted navigation of all rivers, creeks, or streams, where navigation can be carried on, is secured; and the erection of any dam prohibited.2 § 91. In Georgia, ever since 1763, the people have regulated the subject of rivers actually navigable in such a manner as they pleased.3 § 92. In Alabama, the law provides, that all navigable waters are public highways, and that all navigable waters within that State are to remain for ever public highways, free to the citizen of the State and of the United States, without any tax, impost, or toll thereon, imposed by the State.5 § 93. In California, the Legislature, after declaring certain rivers navigable, prohibits any and all persons to build any dam or bridge across the same.6 § 94. In Connecticut, the law prohibits any person from casting, or causing to be cast, into Connecticut River any ballast or other heavy material from any ship or other vessel, or water craft, nor sink, nor cause to be sunk in said river any stone, timber, or other materials for the purpose 1 Virginia Code of 1849 (first part), p. 326. 2 Nixon's New Jersey Digest, p. 951. 3 See P. R. R. Cobb's New Digest of the Laws of Georgia, pp. 902– 943, giving the various enactments. ▲ Alabama Code of 1852, p. 267, § 1205. 5 Alabama Code of 1851, p. 126, § 389. Laws of California of 1850-1853, p. 248. |