individual, it is subject to the right of navigation in the public, and also to the right of the public to take fish thereon and therefrom.320 The public has, as against an individual proprietor of the shore, in case this has been granted by the state, no right to make use thereof for any purpose other than navigation and fishing. Hence there is no general right to take sand or gravel therefrom, or even fish shells, as distinct from fish ;321 nor can the public go on the shore for the purpose of bathing.322

If the shore belongs to the state, the individual proprietor of the adjoining land has no right to the seaweed on the shore,823 but an individual owning the shore is entitled to the seaweed lying thereon,324 though not to that floating in the water thereover,325

265. Navigable non-tidal streams.

As to the ownership of the bed of a stream which is navigable, but not tidal, or of that part of a navigable stream above the ebb and flow of the tide, the decisions in this country are not in accord. In England, where most, if not all, navigable streams are subject to the ebb and flow of the tide, the terms "navigable" and "tidal" are, in effect, synonymous; and the rule there established, that the bed of navigable rivers prima facie belongs to the crown, gives the bed, in effect, to

120 See post, §§ 368, 369.

821 Gould, Waters, § 24; Porter v. Shehan, 7 Gray (Mass.) 435; Clement v. Burns, 43 N. H. 609; Merwin v. Wheeler, 41 Conn. 14; State v. Wilson, 42 Me. 9, 28.

822 Blundell v. Catterall, 5 Barn. & Ald. 268, 2 Gray's Cas. 519; Hetfield v. Baum, 35 N. C. 394, 57 Am. Dec. 563.

823 Mather v. Chapman, 40 Conn. 382, Finch's Cas. 351.

824 Emans v. Turnbull, 2 Johns. (N. Y.) 313; Phillips v. Rhodes, 7 Metc. (Mass.) 322; Church v. Meeker, 34 Conn. 421; Nudd v. Hobbs, 17 N. H. 524.

825 Anthony v. Gifford, 2 Allen (Mass.) 549. See Chapman v. Kimball, 9 Conn. 38.

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the crown, only where the tide ordinarily ebbs and flows, and beyond that point the soil is presumptively in the riparian owners.326

In this country the English rule, regarding a "navigable" river as one in which the tide ebbs and flows, has been adopted in some states, the result being that the title to the bed above tide water is in the riparian owners, and not in the state.327 In many states, however, in view of the numerous streams which are navigable, but not tidal, the English rule has been discarded, and ownership is regarded as resting in the state wherever the waters are capable of use for navigation.328 In the United States courts, moreover, the English rule has been repudiated in the determination of the limits of the admiralty jurisdiction over navigable waters.829 In states in which the English rule is thus repudiated, the riparian owner is, by some decisions, regarded as holding to high-water mark,330 and by others as holding to low-water mark.381

826 Royal Fishery of the Banne, Sir John Davies, 149; Murphy ▼. Ryan, 2 Ir. R. C. L. 143; Pearce v. Scotcher, 9 Q. B. Div. 162; Orr Ewing v. Colquhoun, 2 App. Cas. 839; Reece v. Miller, 8 Q. B. Div. 626, 2 Gray's Cas. 567.

827 Inhabitants of Deerfield v. Arms, 17 Pick. (Mass.) 41, Finch's Cas. 108; Washington Ice Co. v. Shortall, 101 Ill. 46, Finch's Cas. 137; Brown v. Chadbourne, 31 Me. 9, 2 Gray's Cas. 573, 50 Am. Dec. 641; Middleton v. Pritchard, 4 Ill. 510, 38 Am. Dec. 112; Day v. Day, 22 Md. 530; June v. Purcell, 36 Ohio St. 396; Com. v. Chapin, 5 Pick. (Mass.) 199. See Gould, Waters, §§ 56-75.

828 Carson v. Blazer, 2 Bin. (Pa.) 475, 4 Am. Dec. 463, 2 Gray's Cas. 570; Bullock v. Wilson, 2 Port. (Ala.) 436; Monongahela Bridge Co. v. Kirk, 46 Pa. St. 112, 84 Am. Dec. 527; McManus v. Carmichael, 3 Iowa, 1; State v. Black River Phosphate Co., 27 Fla. 276; People v. Canal Appraisers, 33 N. Y. 461; Benson v. Morrow, 61 Mo. 345; Wood v. Fowler, 26 Kan. 682, 40 Am. Rep. 330, Finch's Cas. 146; Collins v. Benbury, 27 N. C. 118, 42 Am. Dec. 155; Packer v. Bird, 71 Cal. 134.

329 Genesee Chief v. Fitzhugh, 12 How. (U. S.) 443; Barney ▼. Keokuk, 94 U. S. 324.

380 Barney v. Keokuk, 94 U. S. 324; McManus v. Carmichael, 3

266. Non-navigable streams.

In England, and also in this country, the bed of a nonnavigable stream is not in the government, but is prima facie in the owners of the land abutting thereon, each having title to the middle of the stream, though their rights in this respect may be changed by express provisions in the conveyances under which they claim.332 It has been provided by a United States statute, with reference to such streams within the public lands, that the stream and bed thereof shall be common to both the riparian owners.833

267. Lakes and ponds.

The views taken in the various states as to the ownership of land under lakes and ponds are not in accord with one another.

The title to the beds of what are known as the "Great Lakes" has always been regarded as being vested in the state in which the particular portion of the lake happens to lie.384 In the case of other lakes of a large size, the view is generally

Iowa, 1; St. Louis, I. M. & S. Ry. Co. v. Ramsey, 53 Ark. 314, 22 Am. St. Rep. 195; Johnson v. Knott, 13 Or. 308.

831 Elder v. Burrus, 6 Humph. (Tenn.) 358; Bainbridge v. Sherlock, 29 Ind. 364; Union Depot, St. Ry. & Transfer Co. v. Brunewick, 31 Minn. 301, 47 Am. Rep. 789; Fulmer v. Williams, 122 Pa. St. 191, 9 Am. St. Rep. 88; Barre v. Fleming, 29 W. Va. 314.

832 Gould, Waters, § 46; Royal Fishery of the Banne, Sir John Davies, 149; Micklethwait v. Newlay Bridge Co., 33 Ch. Div. 133; Îngram v. Threadgill, 14 N. C. 59; Welles v. Bailey, 55 Conn. 292, 3 Am. St. Rep. 48; Inhabitants of Deerfield v. Arms, 17 Pick. (Mass.) 41; Hubbard v. Bell, 54 Ill. 110, 5 Am. Rep. 98; Hayes' Ex'r v. Bowman, 1 Rand. (Va.) 417; Seneca Nation of Indians v. Knight, 23 N. Y. 498; Barclay Railroad & Coal Co. v. Ingham, 36 Pa. St. 194; Pike v. Munroe, 36 Me. 309, 58 Am. Dec. 751; Muller v. Landa, 31 Tex. 265, 98 Am. Dec. 529.

** St. Paul & Pac. R. Co. v. Schurmeir, 7 Wall. (U. S.) 272. 384 Illinois Cent. R. Co. v. Illinois, 146 U. S. 387; People v. Kirk 162 Ill. 138, 53 Am. St. Rep. 277; People v. Silberwood, 110 Mich 103; Miller v. Mendenhall. 43 Minn. 95, 19 Am. St. Rep. 219.

taken that the title to the bed is in the state,885 while the bed of small lakes or ponds is in the riparian proprietors.336 The question of navigability is sometimes made the test in this regard, the title being in the riparian owner whenever the lake is not navigable, and otherwise in the state.837 In Massachusetts and Maine, by virtue of the ordinances of 1641 and 1647 and subsequent legislation, the title to the land under what are known as "great ponds," containing more than ten acres of land, is in the state in trust for the public, and all persons have the right to make use of them for all lawful purposes, the riparian owners thereon having no special rights therein superior to others.388

885 Austin v. Rutland R. Co., 45 Vt. 215; State v. Gilmanton, 9 N. H. 461; Concord Mfg. Co. v. Robertson, 66 N. H. 1; Delaplaine v. Chicago & N. W. Ry. Co., 42 Wis. 214, 24 Am. Rep. 386; Diedrich v. Northwestern Union Ry. Co., 42 Wis. 248, 24 Am. Rep. 399. The decisions as to the effect of meander lines under the system of United States surveys are not uniform. In Indiana, the meander lines do not limit the boundaries of the land of the riparian owner, and he takes the whole subdivision, though it appears as a mere fractional subdivision or "lot" on the survey. Stoner v. Rice, 121 Ind. 51. In Illinois, on the other hand, a grant of land on a meandered lake conveys only to the water's edge. Fuller v. Shedd, 161 Ill. 462, 52 Am. St. Rep. 380.

336 Gouverneur v. National Ice Co., 134 N. Y. 355, 30 Am. St. Rep. 669; Webber v. Pere Marquette Boom Co., 62 Mich. 626; Grand Rapids Ice Co. v. South G. R. Ice Co., 102 Mich. 227, 47 Am. St. Rep. 516; Mill River Woolen Mfg. Co. v. Smith, 34 Conn. 462. In New Jersey, where there are no lakes of any considerable size, the bed of a lake having no connection with tide water is regarded as belonging to the riparian owners. Cobb v. Davenport, 32 N. J. Law, 369. And in Hardin v. Jordan, 140 U. S. 371, a majority of the court hold that, by the common law, the bed of a non-tidal lake belongs to such owners.

887 Lamprey v. State, 52 Minn. 181, 38 Am. St. Rep. 541; Lembeck v. Nye, 47 Ohio St. 336, 21 Am. St. Rep. 828.

838 Gould, Waters, § 84; Paine v. Woods, 108 Mass. 160; Wattuppa Reservoir Co. v. Fall River, 147 Mass. 548, 154 Mass. 305; Brastow v. Rockport Ice Co., 77 Me. 100.

268. Riparian rights of access.

The owner of lands bordering on navigable waters, even though not owner of the land below the water, has a right of access to the water, of which right, by the weight of authority, he cannot be deprived, even by legislative act, without adequate compensation.339

269. Erections and reclamations on the shore.

In a number of the states the owner of land on tide water may make use of the shore, though it belongs to the state, for the purpose of erecting wharves, and may reclaim the shore to low-water mark, provided he does not thereby interfere with navigation, and in so doing conforms to all regulations imposed by the state. The matter is frequently a subject of statutory provision.340

Likewise, even when the title to the bed of navigable nontidal waters is vested in the state, the riparian owners may

889 Lyon v. Fishmongers Co., 1 App. Cas. 662; Yates v. Milwaukee, 10 Wall. (U. S.) 497; Concord Mfg. Co. v. Robertson, 66 N. H. 1, 20; Providence Steam-Engine Co. v. Providence & S. Steamship Co., 12 R. I. 348, 361; Delaplaine v. Chicago & N. W. Ry. Co., 42 Wis. 214, 24 Am. Rep. 386; Hanford v. St. Paul & D. R. Co., 43 Minn. 104; Rumsey v. New York & N. E. R. Co., 133 N. Y. 79, 136 N. Y. 543, overruling Gould v. Hudson River R. Co., 6 N. Y. 522; Gould, Waters, §§ 149-154. But that the legislature may deprive the adjacent owner of the right of access to the water by a grant of the shore to another, without providing for compensation, see Stevens v. Paterson & N. R. Co., 34 N. J. Law, 532; Thayer v. New Bedford R. Co., 125 Mass. 253. And see Gibson v. United States, 166 U. S. 269.

840 Gould, Waters, §§ 167-178; Shively v. Bowlby, 152 U. S. 1; Prior v. Swartz, 62 Conn. 132, 36 Am. St. Rep. 333; Geiger v. Filor, 8 Fla. 325, 339; Bell v. Gough, 23 N. J. Law, 624; Stevens v. Paterson & N. R. Co., 34 N. J. Law, 532; Providence Steam-Engine Co. v. Providence & S. Steamship Co., 12 R. I. 348, 363; City of Norfolk v. Cooke, 27 Grat. (Va.) 430; Horner v. Pleasants, 66 Md. 475; Concord Mfg. Co. v. Robertson, 66 N. H. 1, 20. But see Com. v. Alger, 7 Cush. (Mass.) 53; Town of Ravenswood v. Flemings, 22 W. Va. 52, 46 Am. Rep. 485; Eisenbach v. Hatfield, 2 Wash. St. 236.