Page:Harvard Law Review Volume 4.djvu/37

21 RIGHT TO WHARF TO NAVIGABLE WATER, 21 When embankments are made, the fee to the made land and sub- merged soil vests in the riparian owner, by the invocation of a doctrine that the principle of accretion applies as well to artificial deposits as to natural and imperceptible alluvion.^ The title to wharves, and the right to transfer them apart from the upland, are assumed to be in the riparian owner.^ The right of access, or the right to wharf out, when recognized in these jurisdictions, and not a mere license, is a vested right of property, an interference with which must be followed by com- pensation. The New Jersey and Iowa doctrine seems to be that the wharf- ing-out privilege is a license which, when acted upon, divests the State of its title to the submerged soil, on the Connecticut doc- trine of accretion, or prevents the State from asserting its title on the principle of estoppel. The English rule evidently prevails in Pennsylvania and Ver- mont. There is a right of access to navigable water which, as we have endeavored to show, is an easement of ingress and egress over public lands. The decisions give color to three different views of the right to wharf out. (i.) That it is a license. (2.) That it is a permissi- ble means of exercising or enjoying the right of access. (3.) That it is an independent right of property. The first view is suggested by the Wisconsin court, where it says that if the building of a wharf furthers the public use, it is, in the absence of prohibition, " passively licensed by the public, and not a purpresture." ^ But this statement seems to be incon- sistent with the holding by the same court, that the right cannot be cut off by the State without compensation.* If it is a Hcense, there is no reason why it cannot be revoked before being acted upon. The second view finds support in the Minnesota case,^ which re- lies upon Lyon v. Fishmongers' Company, and apparently treats the right to wharf out as being the same as the right of access. The objection to this view is that the term " right of access " is 1 Lockwood V. N. Y. & N. H. R. Co., 37 Conn. 387. 2 Simons v. French, stipra. 8 Diedrich v. Northern Ry. Co., 42 Wis. 248.
 * Delaplaine v. C. & N. W. Ry. Co., 42 Wis. 214.
 * Lake Superior Land Co. v. Emerson, 38 Minn. 406.