The sun. [volume] (New York [N.Y.]) 1833-1916, 1910-05-30

llas GoveFnsE RuEhes AllaappFchenalsd the
STATES inssTest n RubmrrSsd iaHi7

ING HE veto Of Asaemhlyman lOung'a ball
relating 20 the Board Of Land Commissioner
contains some SUGGESTIONS which must
strike those familiar with .he Law con-
trolling lands under naviRable water In
This state a. pecuilar. The so-called FUN
damental question referred 10 by the
Governor l. defined In his message.
Lands under water belonging 70 TIE state.
particularly IN the lover part Of the Hudson
ana along westchester county and Long Island.
are Possessions OF tho greatest Importance "a
ths people Of the STATE and should b parted
win only on conditions absolutely safeguarding
he common interest
Before making further grants for behehcial
eni0ymont there should be q careful eHamina-
Ton 70 ascertain these present rights Of The state
IN lands under water and the eject Of grants
heretofore made. There should be careful
statutory provision requiring adequate scru-
tiny and appralaement IN cases % applica-
| tons for grants. and wherever rights are granted
there shonld BE- provision for such compensa-
ilon. and for such rsvaluati0n a. stated periods
and for such limitations a. Gill secure 70 the
state the returns which are proper for the priv
ileges u gives and also suitable reversonap
rights IN case the state or Municipalities may
need the Property for public purposes
II cannot be doubted mat the policy pursuei
IN ne past although thought nound az The time
has entailcd serious losses THIS measure con.
tinuss % and ehlarges i's possibility Of evils al
Tine when . new and wiser policy should be
adopted
What are the rights which the State has
In the land under the Hudson River aud
what does the state give where Il under
takes to make a grant to an individual
riparian proprietor | refer now Of course
70 rights which the State may have a. pro
priet0r. the Jus priratum Of the Law. a. con-
tradtstinguished from rights which Il holds
In trust for the public. the jos pubhcHm,
and which are inalienable.
By the Constitution Of the United States
the power 10 regulate commerce. which In
cludes Of course plenary c0ntrOl over all
naviRAble waters within the limits Of the
United States. Il vested In Congress; and
this right s paramount to all other rights.
and with this control the State has nothing
10 do 20 long ~ Congress acts. A. was said
by the Supreme Court Of the United states
In scranton ~ wheeler. iTs a. s.. 1871,
the right Of navigation IA one TO which all
others are subservient The court also
held In that case that In the exercise Of this
right Il was immatsrial whether the title
20 the Submerged lands was IN the state Or
In the riparian proprietor. The court also
said.
Whatever The nature Of thc Interest Of a ripar
len owner IN the submerged lands In froat Of bis
upland bordering on a pubic naVtGable water his
uie u not As fall and complete a. his une % fast
land which has no dlrcct connection with the navt
gadol Of surh water. Il Il a quallned Ute. bare
iechnlra title not az his absolute disposal. a. Ne
upland, but 70 be held a. al tunes subOrdinate 70
flowing over them a. may be consistent with or
demanded b. The public riEhi Of navigation.
In case recently decided by the
Court OF Appeals OF this state Lewis Blue
Point Oyster Go. W. Briggs that court held.
following the intimatiOn Of former decisions
IN this state a. well a. In the United States
supreme Court that grantee from the
State Of lands under - navigable waters
had acquired no rights. even a. 20 extensive
and valuable improvements made which
power Of the Federal or state Government
Z to improve navigation. ana this without
compensation This Wa merely an euun-
citation NJ a principle well Understood by
/ lawyers az ail conversant With the subject
On the other hand. what are the rights
/ OF a riparian proprietor without q grant
I from the state or even in opposition 10
I grant made by the state 10 person other
than such proprlstor, ndef The l9H the
grant save 90 the riparian proprietor
ard the court Of Appeals has decided
I i3rOokhaven W. Smith. - y Y. ~ that
az common law the riparian owner has. IN
| addition TO the right of acCezs TO The naViga-
/ HE Waters. a right 10 construct and main
I tain a pier on the land under water beyond
l high water mars for his own use Or for the
use of the public. subject 10 such general
/ rules and regulations a. congress or the
state Legislature may prescribe Tor the pro
tecttOn 81 the rights Of the public and that
/ the land board had no power 10 make a
/ grant 10 another which would interfere
Nth this rish ~, ' sssS Ss '"i Love G
| COMPANY. Ia3 \ \. Ip and the same
court In sage " Mayor, 10 \ y. o.. held
/ that the rights ~ riparian owner are
| property and thus protected by tho consti-
/ iut ional provision against taking property
/ Without compensation. This latter would
| h. % a. TO III except tho Federal and state
/ Governments In promoting commerce or
/ improving navigation. These are some but
| not ali Of the rights which a riparian owner
/ Dossesses NJ common Law. u must have
/ been thai the Governor vas referring "a
rights which the state held A. proprietor
/ and ~ has been seen, these rights have only
! a nominal or technical value. In fact. IN
/ view Of the later decision Of the courts the
| functions Of the land beard ~ 20 lands
under nAviEahle waters are largely nomi-
nal. ami when the state authorities recoE-
niSs this there may h. more Intelligent
handling u this subject
| The grnnts nov made Of such lands are
/ Of two general sorts. one called a commerce
! grant and another restricted beuefeisi
/ enjoyment gram, Whatever nc lAltei ma.
could give an Intelligent definition OF this
phrase Il h probably supposed that
/ the latter grant gives the grantee some
/ rirht 10 IN w OF build upon the land which
/ ~ docs NOS already posse-s and which
NAV limu or control the paramount riEht
| ~ the Federal Government a. veil aH the
state 20 recall the grant or take away the
property without compensation. That this
theory 4 unsOund and contrary 70 The de-
/ ristous Of the court II apparent SO far
/ a. the paramount rights Of Congress are
| concerned Il h evident that no state agency.
whether ID he Legislature o. land hoard
can do anything which viii In any way
| Irnnede the power ~ regulate commerce.
and subject 10 this power the state cannot
| rranf OF bargain away - ONn power,
| hald in trust for the people, 20 the control
Of u great public hisnwa '.,',, ne form
hsnsfcIal enjoyment. and the conditions
Inserted are immAterial, for ~ vas said
In saFe " Mayor, above referred ., and
quoted by the supreme Court ~ the United
st,tes In Scranton " wheeler. also re-
ferred 10
Ntoou9h a. against individuals or nc un0r.
rsniged public riparian owners have special
tights 10 the tdcway mat are recognised and
protected S ss ~ is bI ~ srs Msa
thsy have no rights that 90 not Yield 70 cofnmer
siai necessitie.. sacspt The 19ht q presumption
80 ebsn pToaectsd b. a rant and .oue set on
| ne part Of ne stats a. In The LAngdon and wa
| lams cases / mink the rule rests uuon The prin
| elne Oh Implied reservation and that IN every
! rfant Of land bounded ~ vigable waters where
| ihS TIDE ebhs and hoWs made by the Crown OF
~ sIatg a. trustee for ne public there u ~.
serVod 81 inpiica ton ne nght 20 20 improve The
gsisriront a. 70 ~ nsyigallon for ne eeneni
al ths reneral pubiir without c0mpen sauoh 70
ne riparian propreioT
I.agicnlly, therefore. % Il seems 10 mo. the
poaltIOn taken BY the Governor Il not lus-
tlhed: no grant has ever been OF can BE-
maha which can ln any way limit oI ahrldaa