Page:Harvard Law Review Volume 4.djvu/35

19 RIGHT TO WHARF TO NAVIGABLE WATER, 19 The English right would seem, therefore, to be of the nature of an easement over the land of the State,^ appurtenant to the upland, and strictly analogous both in origin and nature to that attaching to property bordering on highways by land.^ The origin in the latter right is in the grant of the State at the time of the laying out or dedication of the street.^ The origin of the former right is similar. It is a mere right of way, which has been granted by implication to the original riparian owner because his land abuts on a natural highway. This easement of ingress and egress is appurtenant to the upland, and of course inseparable from it. It remains to consider the nature of the American right to wharf out to navigable water. III. Where the title of the riparian owner extends usque ad medium filum aqucB^ the nature of the so-called right to wharf out is of no importance, since the riparian owner may do whatever he pleases with his own soil, taking care not to obstruct navigation. It is only with reference to that class of cases where the riparian owner's title is said to terminate at high-water or low-water mark, that the nature of the right to wharf out becomes important. The fee to the bed of tidal waters, to the bed of the Great Lakes, and to the beds of some of the large navigable rivers is held to be in the public* But while the riparian proprietor takes only to the water line, he has certain exclusive rights over or in the in- tervening space between his upland and navigable water. The following digest will indicate how far these rights, when not con- trolled by statute, have been the subject of decision in America. In New York the riparian proprietor has no rights below high- water mark, the boundary line of his land.^ 1 When the title to the soil remains in the abutting owner, he is held to have reserved to himself all uses not inconsistent with a public right : (a) in case of highways by land, St. Mary Newington v. Jacobs, L. R. 7 Q. B. 47 ; (b) in case of waterways, Marshall v. Ulleswater Co., L. R. 7 Q. B. 166. 2 Bell V. The Corporation of Quebec, 41 L. T. Rep. N. s. 451 ; Original Hartlepool Collieries Co. v. Gibb, 5 Ch. D. 713. 8 Lahr v. Met, Ry. Co., 104 N. Y. 268, 288 ; Adams v. C, B. & N. Ry. Co., 39 Minn. 286, 290-3, and cases cited. 4 Cases infra ; Gould on Waters, §§ 32, 82-84, and cases cited. 6 Gould V. Hudson River R. Co., 6 N. Y. 522. (Certain rights are now given by statute. Williams v. The Mayor, 105 N. Y. 419.)