Evening journal., 1912-06-14
City Solicitors Opinion.

Inc tlt9 oOiicitOfS opinion IN III
City Solicitors Opinion.
Wilmington, Del, June 70. 1912.
To the President and Members OF
City Council. Wilmington, Del
Sirs: On May 23 your body adopted
resolution referring to Inc pro-
posed contract between the Edge
Moor Iron Company, Wilmington Ter
minal Company and National Dredg-
ing Company of the one part. and
the Council Of The Mayor and Coun
Gil Of Wilmington and the Street and
Sewer Department of Wilmineton, OF
the other part, by which certain real
property is to be acquired by the city
Of Wilmington, and requested that J
advise you "as to the title of the prop
crty in question and the regal suf-
ficiency of the instrument intended to
convey or assure the same to the said
the Mayor and Council OF Whining
ton"
The above mentioned companies will
hereafter in this opinion be called
companies" and the Mayor and
Council of Wilmington and the Street
and Sewer Department be called "the
city of Wilmington
These companies own a part of the
property along the Delaware river he
tween the Christiana river and Edge
Moor. BY an act Of the legislature
of this state, approved March 8, 1901
and by subsequent action of the war
department OF the United States gov
ernment, a hullxhead line was estab-
liahed In front Of these properties and
for several hundred feet beyond the
present low water mark Tho said
statute also provides that the land
between the high water mark and the
proposed bulkhcad should become the
absolute property of the riparian own
ors, which includes these companies.
This agreement is in the form Of u
proposition from the said companles
to the city of Wilmington TO deed TO
the said city certain parts OF this
land adjoining the bullyhoad as we'll
as certain parts between the bulkhead
and the present high water ark,
which latter is TO he used for public
streets.
Tho opinion you desire from me, as
| understand II, relates 10 the title
of the companies TO this land which
they propose TO convey to the city,
as veil as The suiliciency of the in
strumcnt intended to assure TO the
city such con,eyances.
In order TO determine the sufficien-
ov OF the companies title 70 the land
which they propose to convey 60 The
city OF Wilmington. it Will be neces-
sary 10 consider what interest the
said companies as riparian owners,
had in said land before the passage of
act Of 1901. what interest the state
had in said land before the passage OF
said act. as we'll as It's duty with ref
erence thereto: and then what effect
the passage Of said act has upon said
title.
General Principles.
II is important at Tho outset TO state
some general principles applicable TO
the eacts In this case; and with re
spect TO the afct l would state that
understand that the land proposed
to I've conveyed is in front OF the land
which Is induestionabN owned by tho
companies along the bank OF the Della
ware river This. is not absolutely
clear to me from the plan submitted,
but shall assume that that IS true.
Delaware river, is, OF course, a nav
igable stream in which the tide ebbs.
and flows.
Farnhum, in his very excellent work
on water and water rights, at section
G. states that Tn all states where
the common law has not been chang
&c the owners of land abuttins on
todies Of water arc accorded certain
rights by reason of their adjacenoy
Which are different from thosc oe
longing TO the public generally, ami
arc comnrehendod within the general
tenn riparian rights. The princi
e upon which these rights are found
cd is eqaallv appll. bile upon I'll, bod
ies of water ,whet' er large or sn al
t'dal or non-tidal. but the rights 81
the public require the confinement
o: the rights of the riparian bwner
Nahn narrower limits in soinc III
stances than In o'iitrs.
The same author gives an inter-
esting history Of the development OF
the law upon the question of title 10
bed and shores OF the sea in England
and states that the title is in the
crown subject TO public rights therein,
such and navigation and fishing. 1t
holds the property in trust to pre-
serve it's character and utilize II so
/ far only as is necessary for the pur-
poses for which II has acquired it,
Whatever title the king of England
had to the beds of the streams in tins
country was acquired by the Ameri-
can states at the close of the Rev
olution.
That Delaware soon asserted her
rights to ali land formerly owned by
the king is shown in the preamble OF
an act OF the legislature passed Feb
ruary Z, 1898. as follows:
Whereas the right TO the soil and
lands within the known and estab-