Page:Harvard Law Review Volume 4.djvu/40

24 24 HARVARD LAW REVIEW, public right of navigation is not abridged until wharves are erected does not require a holding that the fee to the submerged soil is not in the riparian proprietor.^ The State, however, grants these lands for a particular purpose ; namely, to further its com- mercial interests depending upon navigation. It is not unreason- able, therefore, to say that the grant is upon condition that the land be used for no other purposes than those of the commerce marine. If the property is used for any other purpose, the State should have the privilege of entering and determining the riparian proprietor's estate. Fees-simple with conditions attached that the land shall be used for a particular purpose are not uncommon, and in America such conditions are not in conflict with the rule against perpetuities.^ It has been suggested that the grant of the right to wharf out does not vest the title to the submerged soil in the riparian owner until wharves are erected.^ This theory is at once disposed of by the application of the rule against perpetuities. A grant of an estate in fee-simple which is not to take effect until some owner (present or future) of the upland builds wharves, may not vest the fee within twenty-one years after some life in being, and is, therefore, void.* A very important practical result flows from holding the right to wharf out to be an estate in the submerged soil. It is only upon this theory that the right can be transferred apart from the upland. If it is a natural right, it is, of course, inseparable from the riparian estate. If it is an easement, it cannot be separated from the dominant tenement, for unless easements take the form oi profits d, prendre they cannot exist in gross. But if the express or implied grant by the State of the right to wharf out conveys the fee to the submerged soil to the line of navigability, the riparian proprietor's interest in the submerged soil may be severed from the upland and sold in parcels. The right of access is merged in the fee to the line of navigability though it may still exist beyond that point. Alfred E. McCordic. Wilson G. Crosby. DuLUTH, Minn., March 15, 1890. 1 City of Boston v. Lecrow, 17 How. 426; Com. v. Alger, 7 Cush. 53, 75; State v. Wil- son, 42 Me. 9. 2 Gray on Perpetuities, §§.304-311. 8 State of Illinois v. 111. Cent. R.R. Co., 33 Fed. Rep. 731, 758-9.
 * Gray on Perpetuities, § 201 et seq.