They further aver that in order to avail themselves of the riparian rights vested in them by reason of the ownership of the tracts of land above mentioned, abutting on the shore of said lake, it is necessary to fill in upon the bed of said lake in order to wharf out to said harbor line and thereby reach navigable water; that the distance between the present shore line and said harbor line is so great that it is impracticable, as well as impossible, for said defendants to place themselves in a position where they may be able to avail themselves of and enjoy the use of said riparian rights in connection with the navigable waters of said lake without so wharfing out by filling in upon the bed of

the lake.

For a third defense they aver that, with the knowledge and acquiescence of the state, adjoining owners of property had made fills which had caused the water in front of defendants' uplands to become more shallow, and had caused deposits of sand in bars upon the bed of said lake in front of defendants' property, thereby making it impossible to use the waters of said lake immediately in front of said defendants' tracks, or at any point inside of the established harbor line, for the purpose of navigation.

For a fourth defense it is alleged that since a very early period in the history of the city of Cleveland, to wit, 1845, there had existed a custom for property owners and the city to make fills along the shore of the harbor of the city of Cleveland to the knowledge and with the acquiescence of the authorities of the state of Ohio; that under favor of said custom certain railroad companies created what is known as the "Bath Street Tract," lying immediately east of the easterly pier of the Cuyahoga river at said harbor, consisting of an area of upwards of 80 acres of land; that said property has been extended to the harbor line established by the United States government; that millions of dollars have been expended in the construction thereon of slips, docks, loading, and unloading plants for coal and iron ore, warehouses, depots, and track facilities; that the city of Cleveland, acting under favor of riparian rights, has filled in upon the bed of said lake until it has reclaimed from said lake upwards of 50 to 60 acres of land; that said custom was well known to the authorities of the state of Ohio; and that they never raised any objection or made any claim that the bed of the lake was owned by the state, or that any filling in thereon was a trespass.

has increased with such rapid strides during recent years as to make it impossible for railroads to keep pace with the same, and that the city of Cleveland and the corporations whose lines of railroad center there have in contemplation joint improvements involving extensive changes in the handling of traffic in and out of the city, both by rail and boat; that the contemplated improvements will require a change in the present bridge over the Cuyahoga river and the construction of a second bridge across said river and the filling in of the bed of the lake from the shore to the harbor line. They allege that the filling now being prosecuted is to meet the present needs of the defendants and in view of the more extensive changes contemplated. They allege that in the filling in upon the bed of the lake they are only doing that which the great needs of the public demand at the Cleveland harbor, and improving their property through the exercise of their riparian rights so as to enable them to meet the demands of the public and discharge their duties as common carriers.

The state in its reply admits the establishment of the harbor line by the United States government along a part of the water frontage of Cleveland, including the particular upland in question, and that certain littoral owners, including the city of Cleveland, had made certain fills, but alleges that all of said fills had been made without notice to or consent of the state, and further alleges that the filling done by the city of Cleveland was not with any intention of claiming any interest adverse to the plaintiff, but was for the protection and benefit of the rights of the public generally.

The plaintiff further admits that there is a demand at the port of Cleveland for increased dockage and other transportation facilities and that such demand has been the subject of much discussion between the defendants and the representatives of the city of Cleveland and civic organizations of said city involving numerous plans, but that no general or particular plans have yet been decided upon, and at no time has the interest of the city or public sought by this suit to be protected been overlooked, nor has any plan contemplated by the city involved the surrender of the control of the territory here in question.

At the close of the state's case the trial court sustained a motion of the defendants that the petition of the plaintiff be dismissed, and judgment be rendered for the defendants. The Court of Appeals affirmed this judgment, and this proceeding is brought to reverse the judgments of the courts be

ferent from ours, and cannot be literally applied to circumstances so materially different as those found to exist in the United States."

In Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331, Mr. Justice Gray instructively develops the learning on the subject. He sets out a very complete history of the growth of the law in England and in the United States. He begins with a review of the treatise De Jure Maris, written by Lord Chief Justice Hale, who is conceded to be the great authority in the law of England on this subject. The English common-law rule, as above stated, is set out in the opinion, as well as the modification made in Buccleuch v. Board of Works, supra. Mr. Justice Gray also reviews at great length decisions in the different courts of the United States. It is wholly unnecessary to here refer to those cases in detail. The court concluded that at common law the title and the dominion in lands flowed by the tide were in the king for the benefit of the nation; that upon the settlement of the colonies like rights passed to the grantee in the royal charters, in trust for the communities to be established; that upon the American Revolution these rights, charged with a like trust, were vested in the original states within their respective borders, subject to the rights surrendered by the Constitution to the United States; that the new states admitted into the Union since the adoption of the Constitution have the same rights as the original states in the tidewaters, and in the lands under them, within their respective jurisdictions, and that the title and rights of riparian or littoral proprietors in the soil below high-water mark, therefore, are governed by the laws of the several states, subject to the rights granted to the United States by the Constitution. The court held that the question of the use of the shores by the owners of uplands was left to the sovereign control of each state, subject only to the rights vested by the Constitution in the United States. The right to wharf out was denied in that case, because of the law of Oregon, where the case arose.

In Illinois Central R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018, in which there is also a very interesting discussion of the same questions, it was held that the ownership of the soil in Lake Michigan is in the state, and that the riparian proprietor is entitled to access to the navigable part of the water on the front on which lies his land, and for that purpose to make a landing, wharf, or pier for his own use or for the use of the public. Such right terminates at the point of navigability. The courts of Illinois, however, have finally declared that the common-law rule controls there. They hold that ownership on the shore of Lake Michigan extends only to the water's edge; that the only right the owner has is the right of access to the waters of the lake, and that he has no right to build piers or to wharf out. Revell v. People, 177 Ill. 468, 52 N. E. 1052, 43 L.

R. A. 790, 69 Am. St. Rep. 257; Commissioners v. Fahrney, 250 Ill. 256, 95 N. E. 194.

The ground upon which the right to wharf out is put, in the cases sustaining the right, is that it is an aid to navigation and to the advancement of commerce. In 1 Farnham on Water and Water Rights, 521, the author

says:

"Although the primary purpose of a waterway is for navigation, yet that is merely one element of the combined whole which is necessary dinate to it. If navigation is held supreme, the to constitute commerce, and must be held subor very purpose for which it exists may be defeated by its own demands. Therefore, since commerce is the thing which is supreme, and accord to commerce the right to satisfy its own navigation merely an aid to it, navigation must needs, and must permit the erection of such wharves and piers in the spaces which are naturally available for navigation as are necessary to facilitate the interchange of commerce. These rights must, however, be exercised so as not to interfere needlessly with the right of navigation. Both rights exist, and each is necessary to the other. * * When it is said that the waterways are held in trust for the benefit of the people, and must be kept open for the benefit of navigation, it is not meant that the erection therein of structures which are absolutely necessary to navigation is to be prohibited, because by such interpretation the execution of the trust would defeat the very purpose for which it was Union Packet Co., 21 Wall, 389, 22 L. Ed. 619: established. As said in Atlee v. Northwestern Wharves and piers are as necessary almost to the successful use of the stream in navigation as the vessels themselves, and are to be considties of this branch of commerce.'" ered as an important part of the instrumentali

In Sloan v. Biemiller, 34 Ohio St. 492, 513, the court considered the rights of littoral owners on Lake Erie and its bays, and held that there was no exclusive right of fishery vested in the littoral proprietors, but that such waters were as open to the public for fishing purposes as though they were subject to the ebb and flow of the tides. The court expressly state in the opinion that it was not required to consider any question in regard to the right of a riparian owner to build out beyond his strict boundary line, for the purpose of affording such convenient wharves and landing places in aid of commerce as do not obstruct navigation; but Judge White remarks: rights of the riparian owner apply to the lakes "It was held in Dutton v. Strong, that these as well as to tidewaters. 1 Black, 23 [17_L. Ed. 29]. See, also, Austin v. Rutland R. R. Co., supra, 25 Vt. 215 [45 Vt. 215].”

With reference to the nature of the title of the state to the subaqueous land of Lake Erie, this is said:

"And although the dominion over and the right of property in the waters of the sea and its inland waters were, at common law, in the crown, yet they were of common public right for every subject to navigate upon and to fish in, without interruption. Id. [Angell on Tide Waters] 21. They were regarded as the inherent privileges rights denominated jura publica, or jura comof the subject, and 'classed among those public munia, and thus contradistinguished from jura coronæ, or private rights of the crown.' Id. 22, 80; Harg. Law Tracts, 11. The sovereign was the proprietor of these waters, as the representative or trustee of the public. In this country the title is vested in the states upon a like trust,

In Dutton et al. v. Strong et al., 1 Black, 23, 32 (17 L. Ed. 29) supra, it is said:

"Our ancestors, when they immigrated here, undoubtedly brought the common law with them, as part of their inheritance; but they soon found it indispensable, in order to secure these conveniences, to sanction the appropriation of the soil between high and low water mark to the accomplishment of these objects."

In New York a rule seems to have been finally determined in the case of Brookhaven v. Smith, 188 N. Y. 74, 80 N. E. 665, 9 L. R. A. (N. S.) 326, 11 Ann. Cas. 1. In this case it was held that a riparian owner whose land is bounded by navigable waters has the right of access thereto from the front of his lot, and such right includes the construction of a pier on the land under water, beyond high-water mark, for his own use or for the use of the public, subject to such general rules and regulations as Congress or the state Legislature may prescribe for the protection of the rights of the public, although under the common law of England such structure is regarded as a purpresture or an unlawful encroachment upon the rights of the sovereign, and subject to removal at his pleasure. It is also held that an owner of upland adjoining Great South Bay has a right of access to the waters thereof from the front of his lot, and such right includes the construction of a pier on the land under water beyond high-water mark, for his own use or the use of the public, without the consent of the town of Brookhaven, which acquired the title in fee to such land under royal grant in 1666, 1686, and 1693, although at that time, under the common law of England, riparian owners had no such right, and such structure, in the absence of license therefor, was a purpresture and subject to removal at pleasure. In the opinion the court say, at page 79 of 188 N. Y., at page 667 of 80 N. E. (9 L. R. A. [N. S.] 326, 11 Ann. Cas. 1):

"The adoption by the people of this state of such parts of the common law as were in force on the 20th day of April, 1777, does not compel us to incorporate into our system of jurisprudence principles which are inapplicable to our circumstances and which are inconsistent with our notions of what a just consideration of those circumstances demands. The common law of England, upon the subject of the rights of riparian owners, has but an imperfect application to the situation in a state like this, with its numerous large navigable bodies of waters, in bays, rivers, and inland lakes."

However, since the decision in the Brookhaven Case the New York Court of Appeals, in Barnes v. Midland R. Term. Co., 193 N. Y. 378, 85 N. E. 1093, 127 Am. St. Rep. 962, has distinctly held that the riparian owner must exercise his right reasonably, and so as not to unnecessarily interfere with public

[4-6] After a careful examination we are convinced that in most of the states of the United States the conclusion has been ar

rived at, either by judicial reasoning or by statutory provision which has been upheld, that, subject to regulation and control by the federal and state governments, the littoral owner has the right to wharf out to navigable waters, provided he does not interfere with the public rights of navigation or fishery, and that the state holds the title to the subaqueous land of navigable waters as the trustee for the protection of the public rights therein. Piers and wharves are a necessary aid to navigation, as much so as the harbor itself, and the right to construct them is as important and essential. Without them the operations of commerce would be seriously weakened. If they are to be useful, these piers must extend into water of sufficient depth to float loaded vessels. The littoral owner has an undoubted right of access to the water, and if this right is to be of value, it must be such access as will enable him to reach navigable water and to do the things necessary to that end. Courts in ascertaining and declaring these rights must regard the object for which they are conferred. In this case that object is to aid the commerce of the lake and develop the business of the country.

It is matter of common knowledge that vast quantities of iron ore are brought from ore beds in Northern Michigan and Minnesota to ports in Ohio on Lake Erie, and that this ore is an essential element in making that general neighborhood one of the great iron-producing sections of the country. These conditions, in connection with the other great manufacturing and commercial enterprises of that section, create a situation which invokes the exercise of every legitimate energy in aid of commerce.

But it is contended on the other hand, with much earnestness and, it must be conceded, with much force, that piers and wharves may be extended into the harbor in such a manner and may be constructed and used in such a way as to occupy all the space and to practically destroy the harbor. It is pointed out that wharves and piers having been made by fills or otherwise may then be diverted to private uses, wholly disconnected from navigation, and thereby hinder and interfere with navigation itself. It is manifest that there must be some governmental power to exercise such control and make such regulations as will secure the rights of the public and prevent interference with navigation. As shown, the state holds the title to the subaqueous land as trustee for the protection of public rights. The power to prescribe such regulations resides in the Legislature of the state.