Evening journal., 1912-06-14

As to these streams the riparian own
er owns to the middle or thread of
the stream.
Other Questions.
There are other questions involved
that are not so easily determined.
While there is no doubt but that the
state owns the beds of navigable
tidal streams, it must be borne in
mind that il owns them in trust for
the benefit of the public. Such
streams are public highways to be
used by the public for proper pur-
poses. such as navigation, fishing and
the like. Some courts have held
that the state holds title only for
The special fiduciary purpose of
securing public rights and has no
right to convey tho soil
In the case OF People V. ~ Y. and S.
I. Ferry Company, reported in 6S n
n. II, the court says, "The title to
lands under tide waters, within the
realm of England. we're, by the com
mon law, deemed to be vested in the
king as a public trust. to subserve
and protect the public right to use
them as common highways for com
'merce. trade and intercourse. The
king. by virtue of his proprietary in
terest, could grant the soil so that It
should become private property, but
his grant was subject TO the para
mount right of public use of navigable
waters, which he could neither de-
stroy nor abridge In every such
grant there was an implied reservation
of the public right, and so far as it
assumed to interfere with it or to
confer right 20 impede or obstruct
navigation. or to make an exclusive
appropriation Of the use Of navigable
waters, the grant was void"
Cites Clear Statement.
Perhaps the clearest statement and
the best authority upon this point Is
the decision in the Supreme Court Of
the United States, rendered by Justice
Field in the case Of III. G. r. Co. V. IL
linois, reported in 14S u. s. 3S7, as
follows: "The state holds the title to
the lands under the navigable waters
in trust for the people of the state,
that they may enjoy the navigation
of the waters, carry on commerce
over them, and have liberty of fishing
therein, freed from the obstruction or
interest of the people in the naviga-
tion of the waters and in commerce
over them may be improved in many
instances by the erection of wharves,
docks and piers therein, for which
purpose the state may grant parcels
of the submerged lands; and, so long
as their disposition is made for such
purposes, no valid objections can be
made TO the grants. II is grants of
parcels Of lands under navigable
waters that may afford foundation for
wharves, peirs, docks and other
structures in aid of commerce, and
grants of parcels which, being Occu-
pied. do not substantially impair the
public interest in the lands and wa
ter remaining, that are CHIEFLY con-
sidered and sustained in the ad-
judged cases as a valid exercise of
legislative power consistently with
the trust to the public upon which
such lands are held by the state. But
that is a very different doctrine from
the one which would sanction the
abdication Of the general control OF
the state over lands under the navi-
gable waters Of an entire larbor or
bay, or of a sea or lake. Such abdi-
cation is not consistent with the ex-
ercise Of that trust which requires
the government of the. state to pre-
serve such waters for the use Of the
public. TIE trust devolving upon the
state for the public, and which can
only be discharged by the manage
ment and control of property ia
which the public has an interest. can
not be relinquished by a transfer OF
the property. The control OF the
state for the purposes Of the trust
can never be lost except as to such
parcels as are used in promoting the
interests Of the public therein, or can
be disposed Of without any substan-
tial impairment Of the public interest
In the lands and waters remaining
It is only by observing the distinction
between a grant of such parcels for
the improvement Of the public in
terest, or which, when occupied, dc
not substantially impair the public
interest in the lands and waters re-
naming, and a grant of the whole
property in which the public is inter
ested, that the language OF the ad-
judged cases can be reconciled. The
state can no more abdlcate its trust
people are interested. like navigable
waters and soils under them, so as
to leave them entirely under the use
and control Of private parties, except
in the instance of parcels mentioned
for the improvement of the naviga-
ton and use OF the waters. or when
parcels can be opposed of without i'm
pairment of the public interest in
what remains, than it can abdicate its
police powers i'm the administration
of government and the preservation
of the peace"
Court Shows Distinction.
It will be observed that the su-
preme Court here clearly maintained
the distinction between private and
governmental rights of the state and
applies the trust theory solely tc
governmental rights. Some courts
have gone to the extent of holding
that the state had no proprietary in
terest in the land under the water and
holds in trust only for use by the pub
lie as a stream. Farnham criticises
this view and contends that the trust
doctrine has been carried too far by
such courts and if continued would
result in needless inconvenience If not
an actual obstruction Of progress.
The necessity Of considering the
character of the title held by the
state arises in cases where the land
is reclaimed, and no longer covered by
water, and cannot therefore be used
by the public for the same purposes
il could have been used ss navigable
stream. In such cases does The
state lose the title which it once had