The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-01-24

recent case of Railroad US. Renwics, the Det1er
and more sensible doctrine is laid down, tnat
fhs. land along the water in front OF riparian
proprietor. though beyond the line OF prlsa.e
ownership cannot be taken and appropriated 20
the DubIie use without making compensation 10
the rinariau owner" lBackus the City OF
Detroit. - Mich, 10, ~ Am. Rep, 49, deciaea
in iss2.l ,.
cjdes first the dedication OF the street was a
common law dedication" second, true test IN
the Unfted states as 10 nayigable rivers; thlfd,
the title being derived from haif-breed Teserya-
tfon Indians vet il was the same as II derived
directly from the United states by patents
fourth. that aceretion ..by the gradual and nm
rypreeptfbe oferation of natural causes attaches
IN ripariau title. but Sudden accretions or
ssiard claimed by artificial means, by common
law belongs to the crown, out IN me = nlteo
States IL is question for each state to decide Tor
itself: fifth. that the catise OF the confusion or
what was navigable river, that is, the common
Law rule, and the American rule great coniu-
sion existed for many years in the several states
because OF this confusion different doctrines as
to the ownership OF bed and shore IN the several
states That some OF those doctrines We're not
in accord with sound principles of public policy,
but states having adopted the doctrine, whether
ON such sound principles or not, the doctrine
became "rues OF property. iiinois,
Indiana. Ohio and Minnesota for
cxample) Hence not safe to change,
end therefore each state determines for itself.
sixth, that since the tienesee Chief case has
established the true test OF nayigable waters,
ssthe beds and shores" of navigable waters "be-
long to the state by their inherent sovereignty.
The United states does not, therefore, extend It's
surveys and grants beyond high water mark
That II the United States supreme court "has
seemed to hold contrary view. IL was because
the "local laws of the state in which the lands
We're situated" Seventh, that in any aspect the
city takes all power from the state outright 70
widen and improve the street chad been dedI-
Gated by the riparian owner on river side) "by
filling in below high water. and to that street
extending wharves for public accommodation:
Why did the state city have this right to build
wharves? Because under the laws of Iowa the
knSNx sar4x. hxrp "a
cation (see charter OF city quoted on the opin-
ion), and the upland owner by that dedication
had cut off his riparian rights. "a street bor-
dering on the river this did, according to the
plats of the town adopted by the decree OF parti-
ton, must be regarded as intended TO be used
for the purpose OF access to the river, and the
usual accommodation OF navigation IN sueh
connection, citing Haight VS.. Keokuk, 4th Iowa,
D. 100 This case was distinguished from
the schuermeir case by the supreme court
in the Potomac Steamship Company case lsu-
pra). Whether the fee of the street-that is,
such street as is here referred to--is in the
public or adjacent land owner makes no differ
ence. Eighth, that the freight dock erected on
the street .was an unauthorized and improper
occupation" of that street. As such it was
"repugnant to the dedication OF the street
and rights of the public" In what respect Is
the keokuk case an authority against the ripar-
ian owners right of access of wharfage, where
he is not by his own acts deprived OF his ripar-
ian rights, as for instance, public street run
ming parallel to and by the side of a river?
As this case has some reference to aecretion,
we ask without giving IL an extended discus
sion, because not strictly applicable or required
in deciding the question at bar, are our citizens
deprived of the result of their labors--that is,
of accretion-by reason of land under water re-
claimed by littoral owners? There are two
classes of accretion, one natural the other sud
den. The first becomes the property of the lit
toral owner without any question: the second,
under the common law, the property OF the SOW
ereigu and of the states OF the Union according
to the doctrines established by each state re-
spectively. Barney VS.. keokuk, s; Tyler on
Boundaries (supral.1
BY the constitution does not this state recog-
nize the title to such accretions made before the
admission of the state as being in the littoral
proprietor? Did not the state, or rather the
people, By their constitution claim below ordin-
airy high water mark as il existed at its adoption?
IL not, then which lines of high water mark
the one existing day, week, a month, year,
or century before?
The Mayor of Hoboken VS.. Rail road company,
decided In 1887, first: The commencement of
the opinion is devoted "to aseertaning and de-
filming the terms and scope of the judgment
rendered by the court of errors and appeals in
New Jersey, in Hoboken Land and Imprc vement
Company VS.. Mayor OF Hoboken, 36 \. J. Law,
So because in the case under consideration, 1t
was claimed that the 36th n. J. case was decisive
and that the United States supreme court should
follow that decision, it being the highest state
court Mr.. Justice Mathews. therefore, at length
examined the case. The facts were, that Colonel
Stevens, the owner of the upland, laid the same
out in lots and blocks, with streets dedicated rs
shown on Loss map. One of ''the streets as dedi-
Gated extended to the high water mark as it
then was. No street shown on the map, or in
fact, along the river in which Fourth street
might terminate" The Hoboken Improvement
Company ''had become the successor of the title
of Colonel stevens to the lands owned by him
embraced within the limits of the Loss map, not
previously sold" Among other rights conferred
ON the company by its charter was 1.-THE power
to purchase, fill up, occupy, etc, all land COW
cred with water shore or tide land, fronting and
adjoining lands that might be owned by them
selves, etc. Under this power it was that they
proceeded to fill mp. occupy and improve the
land covered with water, fronting and adjoining
the lands in the city of Hoboken, which they
had purchased. filling up as they progressed in
front of the several streets terminating the
river, well as in front OF the other lands which
they had bought" The city claimed the right
10 extend the street dedicated by Colonel stevens
across this filled in land to the water. The com
pany denied the right, because. as they
they had reclaimed was ''below high
water. being the property of the state, and
both the easement and the title being under
legislative control, the extinguishment OF the
former by necessary implication resulted from
the grant to the latter" This the New Jersey
court denied, holding that 'the grant to the de-
PENDANTS is not of lands of the state in express
and definite terms The right conferred is. viz,
privilege OF reclamation and appropriation 10
private USE and the United states supreme
court hold that "The two principal propositions
established by this decision. far as are material
to be considered in the case, ''those then before
the court WERE first, that the scope and purpose
OF the original dedication of the streets termi-
mated at the water. so TO permit the means of
access for the public TO the Davigable waters OF
the Hudson river. Second, that the intent aud
purpose OF this dedication were not defeated by
the rights acquired by the IIobOken Land and
Improvement Company, under the terms OF its
charter To the lands in front OF the streets
terminating AT the water, ms filled in by that
company" 1t must he borne i'll mind that the
grant To the improvement company was mot OF
lands OF the state in express and definite terms.
This construction the United States supreme
court adopts, then proceeds TO examine
and discuss the eases before IL. Con
sistcntly with that view OF the law. the
circumstances of the present distinguished
them from the ease decided 1.-THE clause OF
the grant TO this corporation recting in full the
various statutes, was all lands in express and
definite terlns." The land granted is specifically
described by meteS and bounds. The grant is a
grant of an estate in the land aud not of mere
franchise or ineorporeal hercditarnent.
Under these grants the land conveyed is held by
other lands are held by private persons under
absolute titles, and every previous right Of the
state OF New Jersey, whether proprietary on
sovereign. is transferred or extinguished, except
such sovereign rights the state may legally
exercise over all their private property For
this and other reasons the court held. unlike the
first ease, that the state could not extend the
street 10 the water across the filed or reclaimed
! land. In the inst case, there being no express
and definite grant, the state parted only with It's
proprietary rights, and in the second with both
/ its proprietary rights and its sovereign rights
Referring to and citing the first case, the court
! proceeds: "The present case was decided upon
the distinction created by these grants from the
state
Aside from New Jersey, tho West Virginia,
I ami perhaps the Gould or New York case,
wherein do any of these authorities hold con
trary To the position claimed by the plaintiff!
But, says the attorney general, the state has 50
declared and the state can do whatever il
4 pleaseS, 1.-The state il omnipOtent,' What is 4
state3 Among other definitions "a complete
! body Of free persons united together for their
! common benefit To enjoy peaceably what is their
/ own aud 70 DO justice To others" anderson