3. His rights in the water subservient to pub- 10, 11. Large rivers held navigable in this

§ 78. 1. In regard to navigable streams, it seems to be a conceded point, that the owner of land adjoining the stream has no property in the bed of the stream, and hence that the legislature in England may give permission to a railway company to so construct their road, as to interfere with and alter the bed of such a stream, to the damage of any owner of adjoining land, in regard to flowage, or otherwise, even to the hinderance of accustomed navigation, without compensation; and that the railway company, in constructing their road within the provisions of the act, do not become liable to an action for damages, to any such proprietor of adjoining land.1

1 Abraham v. Great Northern Railw., 16 Q. B. 586; s. c. 5 Eng. L. & Eq. 258. 66 The legislature might authorize defendants to construct a causeway or bridge across navigable or tide-waters, although the navigation might be thereby impaired." And in a very recent case in the Queen's Bench, (Jan. 1858), Regina v. Musson, 8 El. & Bl. 900; s. c. 30 Law Times, 272, it is held that a pier, built into the sea, is not liable to the parish rates, except so far as it is above high-water mark. Lord Campbell, Ch. J. said, "As to the part between high and low water mark, it is quite clear that the soil between high and low water mark is in the Crown, and prima facie extra parochial. If so, the onus lies on the parish of showing it is within the limits of the parish. That may be done by evidence of perambulating it, in the parish bounds, or of reputation." See Parker v. Cutler Milldam Co., 20 Maine, 353; opinion of court in Brown v. Chadbourne, 31 Maine, 9; Shepley, Ch. J., Rogers v. The Kennebec & Portland Railw., 35 Maine, 319. So, too, to construct their road across the basins of a water company, to their injury, upon making compensation. Boston Water Power Co. v. Boston & Worcester Railw., 23 Pick. 360; s. c. 1 Am. Railw.

2. The same point has been often decided in this country.2 Whether waters are navigable or not, is determined by the ebb and flow of the tide. And although streams, above that point, are navigable often, for steamboats and lesser water craft, and are public highways for such purposes, and often become highways by prescription, for purposes of inferior navigation, as floating timber, and wood, and possibly they may be regarded as such even independent of such prescription; yet the ownership of the riparian proprietor to the middle of the stream, ad medium filum aquæ, is not excluded, except in tide-waters,3 and such large rivers, in this country, as by authority of Congress or common consent have acquired or assumed the character of navigable waters, although not coming strictly within the common-law definition.1

3. But in tide-waters, and navigable lakes, the rights of the owner of land adjoining such waters, in the stream are subservient to the public rights, and are consequently subject to legislative control, and any loss the owner of such land may thereby sustain is damnum absque injuria.*

*4. It seems to be considered, that the state legislatures have unlimited power to erect bridges and railways, and make any other public works across navigable waters, subject only to the paramount authority of the national government.5

C. 298. The grant of power to construct a railway between two points, carries authority to cross navigable waters, if that is reasonably necessary, in the construction of the works. Fall River Iron Works v. Old Colony & Fall River Railw., 5 Allen, 221.

3

Gould v. Hudson River Railw., 2 Selden, 522; post, § 206.

1 Hargrave's Law Tracts, by Lord Hale, 12, 13, 85; Angell on Tide-Waters, c. VI. pp. 171, 172, 173, 174.

Champlain & St. Lawrence Railw. v. Valentine, 19 Barb. 484. But in Bell v. Gough, 3 Zab. 624, it is held, that if the riparian owner have made improvements on the land below high water, so as to have reclaimed it, the part so reclaimed belongs to him, and cannot be granted by the state. And three of the judges, in the trial of this case, in the Court of Appeals, which consisted of nine judges, held that riparian owners have a vested right in the benefits and advantages arising from their adjoining the water, of which they cannot be deprived without compensation. But this case, although exhibiting great research and ability and considerable learning, is not altogether in accordance with the general current of the decisions upon the subject, and is probably based upon the custom or usage which has prevailed to a great extent in some sections of this country from its first settlement, originally founded upon Colonial statutes probably, and in others, perhaps, growing up by common consent, as a kind of local law.

5 The People v. Rensselaer & Saratoga Railw., 15 Wend. 113; Bailey v. Phil.

*5. The commonwealth of Massachusetts has no interest in flats where the tide ebbs and flows, which it is necessary to have

& Wil. Railw., 4 Harring. 389; People v. City of St. Louis, 5 Gilman, 351; Spooner v. McConnell, 1 McLean, C. C. 337; State of Pennsylvania v. Wheeling Bridge Company, 13 How. 518; Wilson v. The Blackbird Creek Marsh Co., 2 Pet. (U. S.) 245; Hogg v. The Zanesville Canal Co., 5 Ham. 410; United States v. The N. Bedford Bridge Co., 1 W. & M. 401; Atty.-Gen. v. Hudson River Railw., 1 Stockton, Ch. 526; Getty v. Same, 21 Barb. 617.

In the late case of Smith v. Maryland, 18 How. (U. S.) 71, it is held that the soil, in the shores of Chesapeake Bay, in the state of Maryland, below low-water mark, belongs to the state, subject to any prior lawful grants by the state, or the sovereign power, before the Declaration of Independence. But that this right of soil in the state is a trust, for the enjoyment by the citizens of certain public rights, among which is the common right of fishery; that the state may lawfully regulate the exercise of this right, and declare vessels forfeit, for violations of regulations so established; and that the exercise of such powers by the state is no infringement of the paramount authority of Congress, or of the exclusive admiralty and maritime jurisdiction of the United States courts.

In the case of Milnor v. The Railway Companies, and Others v. The PlankRoad Companies, in New Jersey, before the Circuit Court of the United States, where it was sought to restrain the companies from bridging the Passaic River, below Newark, which had been erected into a port of entry by Congress, and had some foreign commerce, and some internal navigation, the following points were ruled by Mr. Justice Grier, 6 Law Reg. 6: "A court of the United States has no jurisdiction to restrain, by injunction, the erection of a bridge over a navigable river lying wholly within the limits of a particular state, where such erection is authorized by the legislature of the state, though a port of entry has been created by Congress above the bridge. Dicta, in Devoe v. Penrose Ferry Bridge Co., 3 Am. L. Reg. 83, overruled; and, in Pennsylvania v. Wheeling Bridge Co., 13 How. 579, explained.

The point overruled by the learned judge is thus stated by him: “That although the courts of the United States cannot punish, by indictment, the erection of a nuisance on our public rivers, erected by authority of a state, yet that as courts of chancery they may interfere at the instance of an individual or corporation who are likely to suffer some special injury, and prohibit, by injunction, the erection of nuisances to the navigation of the great navigable rivers leading to the ports of entry within a state." 3 Amer. Law Reg. p. 83.

The following extract from the opinion gives the point of the decision: “The Passaic River, though navigable for a few miles within the state of New Jersey, and therefore a public river, belongs wholly to that state; it is no highway to other states, no commerce passes thereon from states below the bridge to states above. Being the property of the state, and no other state having any title to interfere with her absolute dominion, she alone can regulate the harbors, wharves, ferries, or bridges, in or over it. Congress has the exclusive power to regulate commerce, but that has never been construed to include the means by which commerce is carried on within a state. Canals, turnpikes, bridges, and railways are as necessary to the commerce between and through the several states, as

*

apprised, under the statute, when such land is taken, as appurtenant to the upland, for the purpose of building a railway. And as rivers. Yet Congress has never pretended to regulate them. When a city is made a port of entry, Congress does not thereby assume to regulate its harbor, or detract from the sovereign rights before exercised by each state over her own public rivers. Congress may establish post-offices and post-roads; but this does not affect or control the absolute power of the state over its highways and bridges. If a state does not desire the accommodation of mails at certain places, and will not make roads and bridges on which to transport them, Congress cannot compel it to do so, or require it to receive favors by compulsion. Constituting a town or city a port of entry, is an act for the convenience and benefit of such place, and its commerce; but for the sake of this benefit the constitution does not require the state to surrender her control over the harbor, or the highways leading to it, either by land or water, provided all citizens of the United States enjoy the same privileges which are enjoyed by her own.

6 Walker v. Boston & M. Railw., 3 Cush. 1; s. c. 1 Am. Railw. C. 462. Under a colonial ordinance of 1647, of Massachusetts, the flats on creeks, coves, and arms of the sea, where the tide ebbs and flows, to the extent of one hundred rods, are appurtenant to the upland, and the owners of the adjoining land have an estate in fee therein, subject to the right of the Commonwealth, for making public erections, which is paramount, and subject also to such restraints and limitations of the proprietors' use of them, as the legislature may see fit to impose for the preservation and protection of public and private rights. Commonwealth v. Alger, 7 Cush. 53. And a similar custom or usage prevailed to some extent in some of the other American colonies, traces of which will be found in some of the more recent decisions in those states, which have succeeded them.

The question of the right of riparian owners along the margin of the sea, where the tide ebbs and flows upon sea flats, in the state of Massachusetts, is more extensively and more learnedly discussed in Commonwealth v. Roxbury, 9 Gray, 451, and the reporter's note, by the present Mr. Justice Gray of the Supreme Judicial Court, than in any other place within our knowledge. The leading propositions decided by the case, are:

1. The Commonwealth is the owner in fee of all channels, lands, and flats below low-water mark, and more than one hundred rods below high-water mark. 2. The charter of the colony of Massachusetts conveyed to the grantees all public and private rights in the sea-shore between high and low water mark, without express words.

3. An order of the General Court, that all the ground lying between two towns shall belong to one of them, conveys no right, more than one hundred rods below high-water mark.

4. An act granting permission to a mill corporation to exclude the tide waters from a portion of the flats, and use it as a basin for the purposes of a mill power, does not release the title of the Commonwealth to such flats.

5. An act defining the boundary between two towns, and recognizing some deviations from the original or natural boundary, and some exchanges of territory, will not imply any relinquishment of title on the part of the Commonwealth.

the owner has the right to raise such flats, by filling up, if he is compelled to do more filling up to secure free access to other

"Whether a bridge over the Passaic will injuriously affect the harbor of Newark, is a question which the people of New Jersey can best determine, and have a right to determine for themselves. If the bridges be an inconvenience to sloops and schooners navigating their port, it is no more so to others than to them. I see no reason why the state of New Jersey, in the exercise of her absolute sovereignty over the river, may not stop it up altogether, and establish the harbor and wharves of Newark at the mouth of the river. It would affect the rights of no other state. It would still be a port of entry, if Congress chose to continue it so. Such action would not be in conflict with any power vested in Congress. A state may, in the exercise of its reserved powers, incidentally affect subjects intrusted to Congress without any necessary collision. All railways, canals, harbors, or bridges, necessarily affect the commerce not only within a state but between the states. Congress, by conferring the privilege of a port of entry upon a town or city, does not come in conflict with the police power of a state exercised in bridging her own rivers below such port. If the power to make a town a port of entry includes the right to regulate the means by which its commerce is carried on, why does it not extend to its turnpikes, railways, and canals, to land as well as water? Assuming the right (which I neither affirm nor deny) of Congress to regulate bridges over navigable rivers below ports of entry, yet, not having done so, the courts cannot assume to themselves such a power. There is no act of Congress or rule of law which courts could apply to such a case. It is possible that courts might exercise this discretionary power as judiciously as a legislative body, yet the praise of being a good judge' could hardly be given to one who would endeavor to enlarge his jurisdiction' by the assumption, or rather usurpation, of such an undefined and discretionary power.

'The police power to make bridges over the public rivers is as absolutely and exclusively vested in a state as the commercial power is in Congress; and no question can arise as to which is bound to give way, when exercised over the same subject-matter, till a case of actual collision occurs. This is all that was decided in the case of Wilson v. The Blackbird Creek, &c., 2 Peters, 245. That case has been the subject of much comment, and some misconstruction. It was never intended as a retraction or modification of any thing decided in Gibbons v. Ogden, or to deny the exclusive power of Congress to regulate commerce. Nor does the Wheeling Bridge case at all conflict with either. The case of Wilson v. The Blackbird Creek, &c., governs this, while it has nothing in common with that of the Wheeling Bridge."

And where the legislature of the colony of New Jersey, at an early day (1760), passed an act to enable the owners of meadows along a small creek emptying into the Delaware River, and into which the tide ordinarily flowed for about two miles, to support and maintain a dam, to shut out the tide from the creek, for the purpose of draining such meadows; and enacted that said bank, dam, and all other waterworks already erected, or which should thereafter be found necessary to be erected, for the more effectual preventing the tide from overflowing the meadows lying on the said creek, should be erected, supported, and main