Page:Harvard Law Review Volume 4.djvu/39

23 RIGHT TO WHARF TO NAVIGABLE WATER, 23 erty, — property in the soil up to the line of navigability, though covered by water; for the wharf, pier, or bulkhead can only be built on the soil. It is not a mere easement to pass over the water or a privilege to use the surface, but property in the soil under the water to which to fasten and build such structures; and for this purpose, and subject to the restriction that navigation shall not be obstructed, is as much property as the land above the margin of a navigable stream." ^ The same effect has been given to a custom^ and to a colony ordinance ^ authorizing the building of wharves, where it was held that neither the custom nor the ordinance created a mere easement, but was a grant of the soil to low-water mark. It is not a new doctrine that the right to the perpetual and exclusive use of land is equivalent to ownership, and not a mere easement. In an early English case * a grant of the exclusive use of land, with a clause providing that the land itself was not de- mised, was held to be inconsistent in its terms; and in a New Jersey decision ^ the court said that a grant of " the sole right, privilege, use, and enjoyment at all times for all purposes of fish- ing whatsoever, and for no other purpose," conveyed an " actual estate, and not a mere license or easement." No good reason can be given for making a distinction between the right to wharf out which rests upon implied grant, and the same right created by express grant. In both cases the right is exclusive, and gives such use in, and control over, the submerged soil that it cannot be brought within any other class of rights than that of an actual estate in the land. The fact that the 1 Norfolk City v. Cooke, 27 Gratt. 430. See also Williams v. The Mayor, 105 N. Y. 419; Langdon v. The Mayor, 93 N. Y. 129; State of Illinois v. 111. Cent. R. R. Co., 33 Fed. Rep. 731, 755 et seq. The Virginia statute is as follows : " Any person owning land upon a water-course may erect a wharf on the same, or a pier or bulkhead in such water-course opposite his land, so that the navigation be not obstructed thereby." By reference to the Minnesota, Wisconsin, or United States Supreme Court decisions it will be seen that the Virginia statute gives precisely the same right as the common law. Persons Unknown, 53 Me. 238 ; Angell on Tide Waters (2d ed.), 237. But see Thornton v. Grant, 10 R. I. 477 ; Providence Steam Engine Co. v. Provi- dence Steamboat Co., 12 R. I. 348, 363. » Fitzgerald v. Faunce, 46 N. J. L. 536, 596-7. See also early cases cited in Fitzger- ald V. Faunce.
 * Clement v. Burns, 43 N. H. 609.
 * Storer v. Freeman, 6 Mass. 435 ; Commonwealth v. Alger, 7 Cush. 77 ; Brackett v.
 * Burszord v. Capel, 8 B. & C. 141.