This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In England, land under water which is non tidal in character belongs prima facie not to the crown but to the riparian owners, each owning to the middle line or thread of the stream, and this is so regardless of whether the water is of such depth and width as to be capable of use for the purpose of navigation.18 The courts of a number of states have adopted the English rule in this regard, that the bed of a navigable non tidal stream, or of that part of a stream which is navigable and non tidal, belongs to the riparian owners19 while the courts of other states have adopted a contrary rule, that the soil under navigable water, although not tidal, belongs to the state.20
16. Emans v. Turnbull, 2 Johns. (N. Y.) 313; Philips v. Rhodes, 7 Mete. (Mass.) 322; Church v. Meeker, 34 Conn. 421; Nudd v. Hobbs, 17 N. H. 524; Carr v. Carpenter, 22 R. I. 528, 53 L. R. A. 333, 48 Acl. 805.
17. Anthony v. Gifford, 2 Allen (Mass.) 549. See Chapman v. Kimball, 9 Conn. 38.
18. Murphy v. Ryan, 2 Ir. R. C. L. 143; Pearce v. Scotcher, 9 Q B. Div. 162; Orr Ewing v. Col-quhoun, 2 App. Cas. 839; Reece v. Miller, 8 Q. B. Div. 626.
19. Middleton v. Pritchard, 4 111. 510, 38 Am. Dec. 112; Washington Ice Co. v. Shorfall, 101 111. 46; Berry v. Snyder, 3 Bush. (Ky ) 206. 96 Am. Dec. 219; Brown v. Chad bourne, 31 Me. 9; Com. v. Chapin, 5 Pick. (Mass.) 199; Lor-man v. Benson, 8 Mich. 18, 17 Am. Dec. 435; Kinkead v. Turgeon, 74 Neb. 573, 109 N. W. 744; Fulton Light Heat & Power Co., 200 N. Y.
400, 94 N. E. 199; June v. Pur-cell, 36 Ohio St. 396; Farris v. Bentley, 141 Wis. 671, 124 N. W. 1003.
20. Bullock v. Wilson, 2 Port. (Ala.) 436; Packer v. Bird, 71 Cal. 134, 11 Pac. 873; State v. Black River Phosphate Co., 27 Fla. 276, 9 So. 205; Callahan v. Price, 26 Idaho 745, 145 Pac. 732; Northern Pacific Ry. Co. v. Hirzel, 29 Idaho 438, 161 Pac. 854; McManus v. Carmichael, 3 Iowa, 1; Wood v. Fowler, 26 Kan. 682, 40 Am. Rep. 330; State v. Korrer, 127 Minn. 60, L. R. A. 1916C, 139, 148 N. W. 617; Cooley v. Golden, 117 Mo. 33, 23 S. W. 100, 21 L. R. A. 300; Gibson v. Kelly, 15 Mont. 417, 39 Pac. 517; Collins v. Ben-bury, 27 N. C. 118, 42 Am. Dec. 155; State v. Nolegs, 40 Okla. 479, 139 Pac. 943; Salem v. MeCourt, 26 Ore. 93, 41 Pac. 1105; Carson v. Blazer, 2 Bin. (Pa.) 475, 4 Am. Dec. 463; Monongahela Bridge rights in this respect may be changed by express provisions in the conveyances under which they claim.31 It has been provided by a United States statute, with reference to such streams within the public lands, that the stream and bed thereof shall be common to both the riparian owners.32 the line to which the river rises, in ordinary years. with such frequency or for such periods of time as to mark upon the soil a distinct character in regard to vegetation as well as in regard to the soil itself,25 or, as expressed in some of the cases, as to deprive the soil of vegetation and to destroy its value for agriculture.26 By low water mark is meant the line to which the water recedes at its lowest stage in ordinary seasons, as distinguished from those of exceptional drought.27 The fact that meander lines were run in surveying fractional portions of the public lands bordering upon the stream do not ordinarily make such lines the boundaries between the land of the riparian owners and that belonging to the state, the purpose of such lines being merely to define the sinuosities of the hanks, and to ascertain the quantity of land in the fraction for the purpose of sale.28 v. Hudson Coal Co., 246 Pa. 11. 91 Atl. 1061; State v. Muncie Pulp Co., 119 Tenn. 47, 104 S. W. 437; Taylor v. Comm., 102 Va. 759, 102 Am. St. Rep. 865, 47 S. E. S75; Barre v. Fleming, 29 W. Va. 314, 1 S. E. 731.
The United States courts regard the question of the ownership of the land under water in such case as one of local law, to be adjudicated in accordance with the adjudications of the state in which the question arises.21 In justification of the departure from the English rule on the subject, it is usually said that in England most navigable streams being tidal, the recognition of private ownership in the bed of a nontidal navigable stream involves but little possibility of interference with the public right of navigation, while in this country, where there are many and important navigable non-tidal streams, private ownership of the beds thereof might be most disastrous to the public right. Such a view appears to involve the assumption that the owner of land under navigable waters has the right to interfere with navigation thereover, and perhaps the further assumption that the recognition by the English courts of the crown's ownership of the bed of navigable tidal waters was the outcome of a desire to prevent such interference, neither of which assumptions is in the slightest degree justified. In England the land under tidal waters has always been regarded as belonging to the crown on the theory that such waters are part of the high seas, while non tidal waters not being in theory a part of the high seas, the land thereunder has been regarded as the subject of private ownership. By reason of such private ownership of land under non tidal water, there is prima facie no right of public navigation thereover, but such right may be acquired by the public, by express grant or dedication, by inmemoCo. v. Kirk, 46 Pa. St. 112, 84 Am. Dec. 527; Austin v. Hall, 93 Tex. 591, 57 S. W. 563; Newell v. Loeb, 77 Wash. 182, 137 Pac. 311 (statute).
That the state, as owning the bed of the river, may authorize and control the taking of sand and gravel therefrom, see State v.
Southern Sand & Material Co., 113 Ark. 149, 167 S. W. 854; State v. Akers, 92 Kan. 169. 140 Hue. 637.
21. Hardin v. Jordan, 140 U. S. 371, 35 L. Ed. 428; Archer v. Greenville Sand & Gravel Co.,233 U. S. 60, 58 L. Ed. 850.
[Sec. 301 rial user, which presumes a grant, or by act of Parliament. And it has been so obtained in many cases, probably in the case of most, if not all, waters of any practical utility for the purpose of commercial navigation. The statement in the English books that a river is navigable only in so far as the tide ebbs and flows therein does not mean, as is sometimes assumed, that in that country the rivers or parts of rivers which are navigable but not tidal are so few in number or of such small extent that they can be ignored by the courts, but it is merely a statement of the rebuttable presumption which exists against a right of public navigation therein. There is no suggestion in the English books that the acquisition by the public of the right of navigation over non tidal water in any way affects the ownership of the soil thereunder, the right of navigation being regarded merely as a right of way in the public, a highway, over land privately owned. On the other hand it is recognized that, in so far as the public right of navigation exists, the ownership of the land beneath the water gives no right to interfere therewith.22
In states in which the English rule is repudiated, the riparian owner is, by some decisions, regarded as holding to high water mark,23 and by others as holding to low water mark.24 By high water mark is meant
22. See Coulson & Forbes, Law of Waters (3d Ed.) 116 et seq. 28 Halsbury's Laws of England. 398; Orr Ewing v. Colquhoun, 2 App. Cas. 839.
23. Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224; St. Louis, I. M. & S. Ry. Co. v. Ramsey, 53 Ark. 314, 8 L. R. A. 551, 22 Am. St. Rep. 195, 13 S. W. 931; Northern Pac. Ry. Co. v. Hirzel, 29 Idaho, 438, 161 Pac. 854; Mc-Manus v. Carmichael, 3 Iowa 1; Bennett v. Nat. Starch Mfg. Co., 103 Iowa, 207, 72 N. W. 507;
State v. Nolegs, 40 Okla. 479, 139 Pac. 943; Micelli v. Andrus, 61 Ore.78, 120 Pac. 737; See Miles v. Cedar Point Club, 29 C. C. A. 51, 85 Fed. 45.
24. Bainbridge v. Sherlock, 29 Ind. 364, 95 Am. Dec. 644; Union Depot, St. Ry. & Transfer Co. v. Brunswick, 31 Minn. 101, 47 Am. Rep. 789; State, ex rel. Citizens Elec. Lighting & Power Co. v. Longfellow, 169 Mo. 109, 69 S. W. 374; Fulmer v. Williams, 122 Pa. 191, 1 L. R. A. 603, 9 Am. St. Rep. 88, 15 Atl. 726; Miles Land Co.
25. St. Louis I. M. & S. R. Co. v.. Ramsey, 53 Ark, 314, 8 L. R. A. 559, 22 Am. St. Rep. 195, 13 S. W. 931; Welch v. Browning, 115 Iowa 690, 87 N. W. 430; Sun Dial Ranch v. May Land Co., 61 Ore. 205, 119 Pac. 758; State v Nolegs. 40 Okla. 479, 139 Pac. 943; Compare Morrison v. First Nat. Bank of Skowhegan, 88 Me. 155, 33 Atl. 782.
26. Carpenter v. Board, 56 Minn. 513, 58 N. W. 295; Bennett v. Nat. Starch Mfg. Co., 103 Iowa, 207, 72 N. W. 507; Dow v. Electric Co., 69 N. H. 498, 76 Am. St. Rep. 190, 45 Atl. 350; Paine
Lumber Co. v. U. S. 55 Fed. 854, 864.
27. Kentucky Lumber Co. v. King, 23 Ky. L. Rep. 1422, 65 S.
W. 156; State ex rel. Citizens Elec. Lighting & Power Co. v. Longfellow, 169 Mo. 109, 69 S. W. 374; Stover v. Jack, 60 Pa. 339, 100 Am. Dec. 556; York Haven Water Power Co., 212 Pa. 622, 62 Atl. 97; McBurney v. Young, 67 Vt. 574, 29 L. R. A. 539, 32 Atl. 492; Slauson v. Goodrich Transp. Co., 94 Wis. 642, 69 N. W. 990.
28. St. Paul, & P. R. R. Co. v. Schurmeier, 7 Wall (N. S.) 272, 19 L. Ed. 74; Curtis v. Upton. 175 Cal. 322, 165 Pac. 935; Johnson v. Johnson, 14 Idaho, 561, 95 Pac. 499; Hurst v. Dana, 86 Kan. 947, 122 Pac. 1041; State v. Portland General Electric Co., 52 Ore. 502, 95 Pac. 722; 98 Pac.
In those states in which the state does not own the bed of a non tidal navigable river, each riparian owner has prima facie the ownership to the middle line or thread of the stream, such middle line or thread being a line equally distant from the two banks of the river, without reference to the channel or deepest part of the stream.29 Applying this criterion, the boundary line may obviously vary as the location of the stream varies.30