LAND CO. v. HOTEL

Certainly he did not intend to secure the absolute ownership of the entire water front of the prospective city and hold it separate and apart from the ownership of the land, which he, as president of the land company, was conveying to purchasers. He certainly did not contemplate controlling the gateway to the channel and cutting off the fishing and other privileges incident to the ownership of the abutting land, such as building wharves, etc. To have done so would have been destructive of its growth and prosperity, and would have reversed the policy of the State for so many years. If the construction contended for by the plaintiff is correct, no purchaser of a town lot fronting on the waters could have erected a wharf, pier or bath house, or enjoyed many other privileges incident to his riparian ownership without the consent of the owners of the navigable waters, and the Shepard's Point Land Company could now levy tribute upon the commerce, business and pleasure of the citizens of the The right of navigation would be of little value if a corporation, after selling the lots with water fronts, could prevent the building of wharves and enjoying other privileges. If this were the purpose and policy of the Legislature, why restrict the grant to the purpose of "erecting wharves on the side of deep water thereof next to their lands?" and why restrict the privilege to "persons owning land on any navigable waters ?"

town.

It has been held in recent years, both in this country and in England, that the riparian rights which vest in the grantee of lands are vested rights and can not be taken or separated from the ownership of the land except for public purposes, and then by paying compensation therefor.

The case of Gould v. Railroad, supra, was expressly overruled by Rumsey v. N. Y. & N. E. Railroad, 133 N. Y., 79; 15 L. R. A., 618; 28 Am. St. Rep., 600, in which it was held that the owner of land upon a public river is entitled to

LAND Co. v. HOTEL.

such damages as he may have sustained against the railroad company which constructs its road across its water front, and deprives him of access to the navigable part of the stream, unless the owner has granted the right, or it has been obtained by the power of eminent domain. The riparian rights, which the grantee acquires by virtue of the grant of the abutting soil, are stated by Mr. Justice Miller in Yates v. Milwaukee, 10 Wall. 497: "Whether the title in the owner of such lot extends beyond the dry land or not, he is certainly entitled to all the rights of the riparian proprietor whose land is bounded by a navigable stream, and amongst those rights are access to the navigable parts of the river from the front of his land, the right to make a landing, wharf or pier for his own use or for the use of the public, subject to such general rules and regulations as the Legislature may see proper to impose for the protection of the rights of the public, whatever those may be. This riparian right is property and is valuable, and though it must be enjoyed in due subjection to the rights of the public, it can not be arbitrarily or capriciously destroyed or impaired. It is a right of which, when once vested, the owner can only be deprived in accordance with established law, and, if necessary that it be taken for the public good upon due compen

sation."

In the case of the Duke of Buccleuch v. Board of Works, L. R. 5 E. & I. Appeals, 418, and 41 L. J. Ex., 137, Lord Cairns says: "It has appeared to me throughout that the property of the plaintiff in error in this case was what is commonly called riparian property. The meaning of that is that it had a water frontage. The meaning of its having a water frontage is this, that he had a right to the undisturbed flow of the river which passed along the whole frontage of the property in the form in which it had formerly been accustomed to pass. That being the state of things, this water

LAND CO. v. HOTEL

frontage, with the right which the plaintiff in error possessed was taken for the purposes of the act. Beyond a doubt, this water right was a property belonging to the plaintiff for which compensation was to be made, and it was for the arbitrator to assess the compensation to which the plaintiff was entitled upon that footing."

In Lyon v. Fishmonger's Co., L. R. 1 Appeal Cases, 670, it is held that a riparian property owner on the river Thames and the owner of lands near a public dock upon the river were entitled to compensation in respect to their lands being injuriously affected by being deprived of access to the river and dock.

Lewis on Eminent Domain, Section 83, says: "The following rights may be enumerated as appurtenant to property upon public waters:

"1. The right to be and remain a riparian proprietor and to enjoy the natural advantage thereby conferred upon the land by its adjacency to the water.

"2. The right of access to the water, including a right of way to and from the navigable parts.

"3. The right to build a pier or wharf out to the navigable water, subject to any regulations by the State.

"4. The right to accretions or alluvium.

"5. To make a reasonable use of the water as it flows past or laves the shore."

He says it follows that any injury to riparian rights sufficient to be used is a taking for which compensation must be riade.

Thus we see that when the soil was granted by the State that certain riparian rights passed as incidents thereto, and that these rights were vested, and the State could not itself nor permit others to interfere therewith except for public purposes and then only by making compensation. It would seem to follow from this conclusion that the original grantees

LAND CO. v. HOTEL.

of the Shepard's Point lands acquired rights in the navigable waters which the subsequent grant could not affect injuriously, and that these rights passed as appurtenant to such lands to the purchasers thereof.

The Legislature of Florida in 1856 passed an Act reciting that "Whereas it is for the benefit of commerce that wharves be built and warehouses erected. .; and whereas, the State being proprietor of all submerged lands and water privileges within its boundaries, which prevents the riparian owners from improving their water lots," it is thereupon enacted that the State "for the consideration above mentioned divests herself of all right, title, etc., in lands covered by water in front of any tract of land The Supreme Court of that State, in Florida v. Phosphate Co., 32 Fla., 82; 21 L. R. A., 189, says: "In construing this Act, not only are we to keep in view the real nature of the subject-matter, but it is to be judged in the light of the rule applicable to all grants by the government, which is, that they are to be strictly construed or to be taken most beneficially in favor of the State and against the grantee. . The plan of the act is that the title of the submerged land should be vested in the riparian owner for these uses and purposes." The State, "for the consideration above mentioned," divests herself and invests the riparian owner with the title to the land.

"These considerations" are for the purpose and end that commerce may be benefitted by the building of wharves, piers, etc. And the grant in this case is one of the class in which the subject of the grant, as long as it is of that character to be used or built for the benefit of commerce, is apparent and controlling. The court held that the right acquired was confined to the purposes set forth in the Act.

In Gregory v. Forbes, 96 N. C., 77, Smith, C. J., says: "The survey and we assume the entry which it must follow

LAND CO. v. HOTEL.

declare that it is for wharf purposes, and this is the only use for which the grant could issue."

It is elementary learning that in construing a grant every part thereof must be given effect, unless absolutely inconsistent with other parts. Thus, in Robinson v. Railroad, 59 Vt., 426, land had been conveyed for the use of a plank road." The description of the land was complete without these words. The court said: "This clause can have no force as a description of the premises conveyed, and no force at all, unless as qualifying and limiting the grant. It is an important rule of construction applicable to all written instruments that every word and every clause shall so far as possible be given some force and meaning, and if construing the whole instrument one way, meaning is given to every word and clause, while construing it another way, some portion of the language used is rendered meaningless, the construction which gives force and meaning to all the language used, is, as a rule, to prevail. This is upon the presumption that the party making the instrument did not use any language except what was necessary to make it speak the intention of the parties thereto. Again, when it is doubtful what the construction should be, resort to the circumstances surrounding the transaction may be had to enable the reader to understand and apply the language used.

We think this clause was intended as a limitation upon the grant, reducing from a grant of the fee to a grant of an easement for the use of a plank road, all that the grantee cared to acquire and all that the grantor would be likely to desire to part with."

In Flaten v. City of Moorehead, 51 Minn., 512; 19 L. R. A., 195, it was held that in a grant or deed conveying a tract of land immediately following the description of which were these words, "Said tract of land hereby conveyed to be forever held and used as a public park," upon the face of the