The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1899-05-02

ia United States 656-7 that lands be
low high water mark and navigatab.e
waters are the absolute property Of the
State, subject only to the power conferred
upon congress to regulate foreign COM
merce and commerce between States, and
they may be granted by the State. either
10 the riparian proprietors or TO a
stranger as the State may see fit" and II
was further held that the grant by the
State OF New Jersey to the united com
panies was intended to secure. and does
secure 70 the respective grantees. tn,
whole beneficial interest In their respec-
tive properties. for their exclusive use
fer the purposes expressed In ,nie grants"
In Stevens VS. Paterson and Newark rail-
road Vroom ga New Jersey law) E32,
the court OF errors and appeals of New
Jersey declared that It was competent FOR
the STATE to grant to stranger lands con
stituting the shore of a navigable river
under tide water below the tide water
mark, to be occupied and used with struc-
lures and improvements In the Laugdcn
VS.. New York City. 90 New York, 1921 1855.
the court of appeals of New York said
From the earliest times In England the
law has vested the title TO. aud the con-
troll over, the rayigable waters therein.
in the crown and parliament, 4 disiinc-
tioH was taken between the mere owner
ship of the soil under water and the con-
troll over II for public purposes. The own
ership OF the soil analogous 10 the own
ership OF dry land, was regarded as JUS
priyatum and was vested In the crown.
| But the right to use and control both the
land and the water was deemed jus pup
4 licum. and was vested In parliament The
crown could convey the soil under wafer
so as to give private rights therein, but
| the dominion and control over the water.
in the interest OF commerce and navigs-
ton, for the bsaeft OF all the subjects of
| the kingdom, could be exercised only by
| parliament In this country the State has
| succeeded to all the rights of both crown
and parliament In the navigahle waters
and the soil under them, and here the jus
| privatum and the jus pablicum are both
| vested in the State" This doctrine is also
| clearly recognized In the case OF the NIL
nois Central Railroad company VS.. mi
| nois. LAG United States 2S7, The legisla-
ture of Louisiana by law authorized and
! empowered the New Orleans. Mobile and
| Texas railroad to construct, own and oPe-
/ rate certain wharYes in the city OF New
| Orleans upon the Mississippi river. navi.
| gable stream, 10 be used by said railroad
! company for tho purpose of receiving
| lrelght hauled by 1t. with proviso in thu
law that no steamship or other vessel
1 snail occupy or lie at said wharf or re
! ceive or discharge cargo thereat except
| by and with the consent of said railroad
/ company The powers thus granted by
me legislature of Louisiana to and exer-
| cised by said railroad company came in
review before the supreme court OF the
united States in the case of Railroad Com
! pany VS.. Elerman. l05 United States I'll
| the court unholding the laws and resou-
! ton above cited. The court cited with ap-
! prevail the case of Dutten VS. Strong.
| Black, United States 39l The supreme
| court of this State in the case Of City ~
Galvesh1 VS.. Menard. % Texas. $50 an
nounces the same doctrine as the federal
decision above. In the case cited the court
| sald; BY the common law Ohe court was
! discussing he identical property. the sub
lect matter of the bill under considera-
! tlon) the right to such property is vested
! IN the king as trustee for the public. and
| since the time of magma charter he can
not grant 1t, though parliament may The
I Legislatures of the several States NAV
/ grant it. II not appropriated by prescrip-
! ton or otherwise; provided It does not In
| fringe upon the power OF the United States
/ 10 regulate commerce with foreign nations
and among the several States"
In view OF either the civil or the oom-
mon law, the Republic OF Texas as re-
suit OF It's absolute sovereignty over the
territory included in its limits, had the
power, through its legislative department.
IN 1886 to grant that part Of Galveston
bay south OF the channel. called the fats
usually covered with salt water. so as to
vest an exclusive right TO the soil In the
grantee"
These authorities. in my opinion. com
pletelv establish that the title to the soil
under tide water or in navigabe waters
which are in the jurisdiction of the re-
spectiye States. are absolutely vested in
the State and that the States have the
absolute right to grant the same to in
dividuals for their exclusive rights and
uses, subject to the right of congress to
control the waters for the purposes of
navigation. and subject to the qualification
that the State can not grant all the flats
or frontage upon navigable waters so as
to materially and substantially interfere
| with the rights OF the public in regard
to navigation. There is a frontage on
| Galveston bay suitable for piers and
wharves. extending about from seven TO
nine miles, the property relinquished by
/ this bill to Huntington has an extension
OF only five-seveuths of mile Conse-
quently the REIMBURSEMENT OF the title of
| the State df she has any which will be
discussed later on) 10 the property set
forth in this bill. and comforting exclusive
use of the same upon Huntington. can not
/ be seriously contended as operating to
substantially and materially impair or inn
pede the public in their right Of naviga-
ton | feel well satisfied that this bill
! violates neither the constitution of the
/ United States nor of this State The case
/ of the Illinois Central Railroad company
w. Illinois. LAG U. S., 3S7. is supposed by
some TO be in conflict with this opinion,
! but to my mind the conclusion arrived at
! by me is In absolute harmony with that
! opinion. In that case 1t appears that all
of the lake front in the city OF Chicago
/ was granted to the railroad company and
I that fact was the prevailing factor that
moved majority of the court to reach the
! conclusion that the grant was void. jus
| Ices Shiras, Gray and Brown dissented
! from the opinion of the court on the broad
ground that the legislature had absolute
1 control of the property and could grant 1t
! to individuals or corporations without any
| limitation or qualification. The three dis
| senting judges In their opinion in 1916, e. S.
page 467 use this language The opin-
| len Of the majority, If | rightly sppre-
! bend it. likewise comedies that State
| does possess the power to grant the rights
! of property and possession in such lands
! 70 private parties. but the power Is stated
! to be in some way restricted to small
! parcels, or where such parcels can he dis
posed Of without detriment to the public
! interest in the lands and waters remain
| ing" The minority then further say: But
| it is difficult 10 see how the exercise OF
the power II the power exists. can de-
pend upon the size OF the parcel granted,
| etc 4" This case Is in Derfect harmony with