Evening journal., 1912-06-14

the riparian properties beyond recall.
In other words. II this statute OF 1901
should be repealed by the Legislature,
would the city set anything under this
agreement?
My understanding is that practically
nothing has been done by the riparian
owners toward the building Of bulk
head or tho filling in of the space back
OF such bulkhead.
An interesting case upon this point
was decided in 1889, by the Federal
Circuit Court of the District Of Mary
land. In the case of Chappell vs.
Watcrworth. reported In 80 Federal n.
The plaintiff in that case claimed title
TO the fast land adjacent TO that part
OF the patapsco river where the light
house is located. through a grant OF
the state of Maryland. The court, in
1eciting the facts, said:
"The plaintih has acquired by grant.
and nows owns, all the title and right
in the upland, and the shore opposite
this lighthouse. and In the bed Of the
river covered by this structure which
the state could grant away. and has
the riparian rights specially con-
ANIItu ny NNt NAnf AbIl0 dAA VI AONsa u
l29. by which IL was enacted that "the
proprietor Of land bounding on any
navigable waters Of this state is here
by declared 10 be entitled TO the ex-
elusive right of making improve
ments into the waters in front of his
said land. Such improvements, and
ether accretions as above provided
for, shall pass 10 the successive own
ers of the land 10 which they are at
tached as incident 10 their respective
estates. But no such improvement
shall be so made as TO interfere with
the navigation of the stream of water
into which said improvement is
made In fact, the plaintiff never
has availed of this privilege OF inn
proving out into the water covered BY
The light house, but the right to do so
Is a valuable riparian right, not to be
arbitrarily or capriciously destroyed
Yates VS.. Milwaukee. 10 Wall. 504. II
ia, however, a privilege which must
be exercNed subject 10 the right OF
the public to use the river for the
great primary and paramount purpose
OF navigation, and for furnishing the
usual and necessary aids 10 naviga-
tion.
State Holds Title.
The ruling in Yates VS.. Milwaukee
was that when under legislative per
mission, or in accordance with his
! privilege as a riparian owner, the
owner of land bounding on a navig-
able stream has actually made his i'm
provement, and by such improvement
that portion OF the stream so improved
or reclaimed has ceased TO be part oi
the naYigable water, and Is appro'
/ priated TO private use it can ther
only be taken TO improve naviga'
I tiOn upon proper compensation being
made, as for any other strictly pri.
vate property Such was the effect
Of the mandate OF the Supreme Court
in that case IN reversing the decree
below. But while the submerged lanc
remains a part OF the bed OF tho river
it is not private property in the sense
of the fifth amendment to the federal
constitution. AS was declared in Gil
man V, Philadelphia, Wall. i25, the
navigahle waters are the public
property Of the nation, and subject tc
all the requisite legislation by Con.
gress.' In the hands OF the state OF
OF the states grantee the bed Of ;
nayicahle riversremainsi subject 10 az
easement OF navigation, which th'
! general government can lawfully en-
force improve and protect. Il is by
no means true that any dealing with
a nRvigable stream which impairs the
value of the rights of riparian owners
gives them a claim for compensation
I ] Tho TTrtrfa. fhof In
to develop the greatest public utility
Of a waterway, private convenience
must often suffer without compensa-
tion, has been sanctioned by repeated
decisions of the supreme court. The
following are cases all involving that
proposition: The Blackbird Creek
case, ? Pet. 245: Gilman v. philadel-
phia, Wall. 713; Pound " Truck
95 U. S. 400; Wisconsin " Duluth,
90 L.. s. 379; South Carolina v,
Georgia. 80 u. S. &
II II were made apparent TO Con-
gress that any extension Of the plairi-
tiff's present shore line into the river
tended to impair the navigability Of
! the stream. or its use as a highway
of commerce, Congress could author
J ize the agents OF the United States 10
/ establish the present shore as the
/ line beyond which no structures of
any kind could be extended. and the
plaintiff would have no claim for
compensation. II the plaintiff could
/ thus lawfully he prevented from ap-
propriating 20 his private use any
/ part Of the submerged land lyinC in
front of his shore-lne, and the wholo
/ OF Il be kept subservicnt TO the ease
ment Of navigation, how can it be
successfully claimed that he mast be
paid for the small portion covered by
| the lighthouse 200 feet from the
| shore, which has been taken for use
as stricly necessary to safe navigation
as the improved channel itself9 The
oou : OF appeals OF Maryland, when
ever called upon TO declare the nature
OF the title Of the state and its gran
tees in the land at the bottom Of navi-
! gable streams, has uniformly held
that the soil below high-water mark
was as much a part of the jus pub
licum Gs the stream itself"
Case Somewhat Similar.
The case above quoted is somewhat
similar 10 the situation here, and i
am clearly of the opinion that the RI
parian owners along the Delaware
river have no rights under this
statute OF 1901 which cannot be taken
away from them by a repeal of the
act, and of course If the title could
be taken away from such riparian
/ owners. II could also be taken away
from tho city for that part of the land
which the city would get under this
agreement
There is one other important. ques-
tion that bears in a general way upon
this subject, and that is, what rights
of compensation the riparian owners