action of the water.1 The rule is the same when the old boundaries are not known, and when they can be ascertained.2

The doctrine as to alluvion is equally applicable to tide waters and to non-tidal rivers and lakes; to those waters which do and those which do not overflow their banks, and where dykes and other defences are and where they are not necessary to keep the water within its proper limits. It is not applicable where the soil of another is laid bare by the gradual subsidence of a mill-pond caused by the decay of the dam; but in general it applies to artificial ponds,5 as well as to natural waters, and to changes made by artificial as well as natural causes, if the artificial cause is not itself unlawful, and the gradual acquisition of the new soil results from the exercise of lawful rights of property and not from operations tending or intended to produce the change.6 "If," says Hunt,7 "manufacturing or mining operations upon lands bordering on the sea or upon a public river cause a gradual silting up of rubbish, slate, or other matter, either upon the lands where the manufactories or mines are situ

the tenants for commonage, etc., in the waste. Hall on the Seashore, 127; Hunt on Boundaries, 24.

1 Foster v. Wright, 4 C. P. D. 438. 2 In re Hull and Selby Railway Co., 5 M. & W. 327; Foster v. Wright, 4 C. P. D. 438; Rex v. Yarborough, 3 B. & C. 106; ante, p. 109, n. 3; 2 Black. Com. 261; Hale, De Jure Maris, c. 1,6; Britton, Bk. 2, c. 2; Bracton, Bk. 2, c. 2, § 1; Fleta, Bk. 3, c. 2, §§ 2, 6; Callis on Sewers, 51. In Scotland, see Stewart v. Greenock Harbor Trustees, 4 Scot. Ses. Cas. (3d series) 283; Smart v. Dundee, 8 Bro. P. C. 199; Todd v. Dunlop, 2 Rob. Sc. App. 333.

3 Foster . Wright, 4 C. P. D. 438; Ford. Lacy, 7 H. & N. 151; Hale, De Jure Maris, c. 1; Barnes v. Keokuk, 94 U. S. 324; Banks v. Ogden, 2 Wall. 57; County of St. Clair . Lovington, 23 Wall. 46; Lovington v. County of St. Clair, 64 Ill. 56; Granger v. Swart, 1 Woolw. 88; Ridgway v. Ludlow, 58 Ind. 248; Benson v.

Morrow, 61 Mo. 345; Warren v. Chambers, 25 Ark. 120; Murry v. Sermon, 1 Hawks (N. C.) 56; Giraud v. Hughes, 1 Gill & J. 249; Lamb v. Ricketts, 11 Ohio, 311; Niehaus v. Shepherd, 26 Ohio St. 40.

4 Eddy v. St. Mars, 53 Vt. 462.

5 Cook v. McClure, 58 N. Y. 437. 6 Attorney General v. Chambers, 4 De G. & J. 55; 4 De G. M. & G. 206; Smart v. Magistrates of Dundee, 8 Bro. P. C. 119; Seebkristo v. East India Co., 10 Moo. P. C. 149; Blackpool Pier v. Fylde Union, 46 L. J. M. C. 189; Adams v. Frothingham, 3 Mass. 352; Halsey v. McCormick, 18 N. Y. 147; 13 N. Y. 296; Dana v. Jackson St. Wharf Co., 31 Cal. 118; County of St. Clair v. Lovingston, 23 Wall. 46, 62; Lovingston v. County of St. Clair, 64 Ill. 56; Henry v. Vermont Central Railroad Co., 30 Vt. 638.

7 Hunt on Boundaries (2d ed.), 23.

ated, or upon the neighboring property, the materials thus accumulated would appear to be subject to the ordinary rule relating to alluvion, just as if they had been deposited by purely natural causes. Where, however, the effect of the operations and works just alluded to is to produce, not a slow and gradual, but a great and sudden acquisition of additional land to any proprietor along the shore, the rule relating to relictions applies and the property gained will go to the Crown." So, if an embankment lawfully made on a man's own land causes a silting up of sand and mud, whereby soil is gradually gained from the sea, the owner of the embankment would doubtless be entitled to this increase.1 In Todd v. Dunlap,2 it was held that the grantee of land adjacent to, and described in the grant as bounded by, a public river, had no right of property in a large tract of ground afterwards gained from the channel of the river by the operations of the grantors, who were trustees for improving the navigation of the river. In Attorney General v. Chamberlaine, where the Crown sought to recover land alleged to have been reclaimed from the sea by encroachment or purpresture, and the defendant disputed the Crown's title to the soil between the then high and low-water marks, the vice-chancellor said that he apprehended that if the defendant had admitted the Crown's title to the soil between these lines, the onus would be upon the Crown to show that the ancient high-water mark extended further inland than at present. If it clearly appears that a wharf or pier built out into navigable water is a purpresture, and that its position. causes sand and gravel to be gradually silted up against the adjoining land, the owner is not entitled to such increase.4 If a stream is diverted artificially, and not imperceptibly, there is no change in the title to the ground which is laid

1 Attorney General v. Chambers, 4 De Gex & J. 68, 70; Smart v. Dundee, 8 Bro. Parl. Cas. 119; Smith v. Stair, 6 Bell App. Cas. 487.

22 Rob. Scotch Appeals, 333. 3 4 K. & J. 292; Attorney General . Chambers, 4 De Gex & J. 55.

4 Dana v. Jackson St. Wharf Co., 31 Cal. 118. Unless there has been long-continued and exclusive adverse possession. Tracy v. Norwich Railroad Co., 39 Conn. 382.

1

bare. But if the State excavates the soil of navigable waters, for the purpose of deepening a channel, and deposits the earth in front of premises which it has previously conveyed by patent, the riparian owner is entitled to this accretion.2 So, a married woman is entitled to the accretions made by her husband or by a stranger by filling in in front of her land.3 Alluvion includes seaweed washed upon the shore as well as sand or gravel.*

§ 156. A riparian proprietor has no claim to the protection of the courts as to accretions which have not yet formed and may never be added to his property.5 As between vendor and vendee, the right to alluvion depends upon the condition of the land at the time of the transfer of the legal title, and cannot be carried back by relation to the date of a title-bond under which the conveyance was made. If land bounded by water is leased or mortgaged, the lessee or mortgagee is entitled to the benefit of accretions forming after the date of the instrument under which he claims. So, the right to accretions passes with the land to an assignee in bankruptcy.8 And the right of dower, if not released, attaches to accretions to lands of which the husband was seized during coverture, whether they accrued while he owned the land or after he parted with the title.9

§ 157. In general the owner of a city lot bounding upon water is entitled to the riparian right of accretions.10 But

1 Halsey v. McCormick, 18 N. Y. Cochran v. Fort, 7 Martin, N. S. 622. 147; 13 N. Y. 296. If reference is made to a plan, the

2 Ledyard v. Ten Eyck, 36 Barb. right to alluvion is determined by the 102. date of the conveyance and not the

3 Dickinson v. Codwise, 1 Sand. date of the plan. Jones v. Johnson, 18 How. 150.

Ch. 214.

4 Emans v. Turnbull, 2 Johns. 322; Phillips v. Rhodes, 7 Met. 523; Chapman v. Kimball, 9 Conn. 38; Mather v. Chapman, 40 Conn. 382.

5 Taylor v. Underhill, 40 Cal. 471. Johnston v. Jones, 1 Black, 209; Jones v. Johnston, 18 How. 150. See Barre v. New Orleans, 22 La. Ann. 613; Cire v. Rightor, 11 La. 140;

7 Cobb v. Lavalle, 89 Ill. 331; Williams & Baker, 41 Md. 523.

8 Kinzie v. Winston, 4 Bank. Reg.21. 9 Lombard v. Kinzie, 73 Ill. 446; Gale v. Kinzie, 80 Ill. 132; Moore v. Kinzie, 80 Ill. 132; Hagan v. Campbell, 8 Porter, 9.

10 Jones v. Soulard, 24 How. 41; Smith v. Public Schools, 30 Mo. 301;

if a street is laid out, or land is dedicated to public use, along the margin of the water, the grantee of a lot on the opposite side of the street takes only to the centre of the street or dedicated land, and the original proprietor is entitled to accretions by alluvion upon the soil adjoining the river. And if a levee or embankment is lawfully constructed by a city along the margin of waters which are the property of the State to high-mater mark, it is the artificial boundary of the private lots adjoining, and accretions added thereto belong to the city as riparian owner.2 A highway which extends across the shore to navigable water continues to the water if the shore is afterwards enlarged by accretions; and the riparian owner cannot, by filling in, and thus extending his land, even when his right to do so is unquestioned, obstruct the public right of way to the water.4 A city, being the owner of a quay, or river bank, is entitled to alluvial formations added thereto, like any riparian pro

Le Beau v. Gavin, 37 Mo. 556; Public Schools v. Risley, 40 Mo. 356; 10 Wall. 91; Smith v. St. Louis, 21 Mo. 36; Yeatman v. New Orleans, 13 La. Ann. 154; Sarpy v. New Orleans, 13 La. Ann. 349; Barrett v. New Orleans, 13 La. Ann. 105.

1 New Orleans v. United States, 10 Peters, 662; Jones v. Soulard, 24 How. 41; Boston v. Richardson, 24 How. 188; Banks v. Ogden, 2 Wall. 57; Saulet v. Shepard, 4 Wall. 502; Schools v. Risley, 10 Wall. 91; 40 Mo. 356; Cook v. Burlington, 30 Iowa, 94; 36 Iowa, 357; Lebaume v. Pocthington, 21 Mo. 36; Morgan v. Livingston, 6 Martin, 19, 251; Municipality v. Orleans Cotton Press, 18 La. 122, 240; Kennedy v. Municipality No. 2, 10 La. Ann. 54; Remy v. Municipality No. 2, 11 La. Ann. 148; 12 Id. 500; Barrett v. New Orleans, 13 La. Ann. 105, 154, 349; Carollton Railroad Co. v. Winthrop, 5 La. Ann. 36; Chambre v. Kohn, 8 Martin, 572; Cochran v. Fort, 7 Martin, N. S. 622; Cire v. Rightor, 11 La. 140; Winter v. City, 26 La. Ann. 310; Brisbine . St.

Paul Railroad Co., 23 Minn. 114. See Watson v. Peters, 26 Mich. 508; State v. Nudd, 23 N. H. 327; Talbot v. Richmond Railroad Co., 31 Gratt. 685.

2 New Orleans v. United States, 10 Peters, 662; Musser v. Hershey, 42 Iowa, 356.

3 Wood v. San Francisco, 4 Cal. 19; Eldridge v. Cowell, 4 Cal. 80; Lockwood v. New York Railroad Co., 37 Conn. 387; Godfrey v. Alton, 12 Ill. 29; Balliet v. Commonwealth, 17 Penn. St. 509; Stetson v. Bangor, 60 Maine, 313; Kennedy v. Jones, 11 Ala. 63; Magraw v. Hailman, 23 Pitts. L. J. 113.

4 Hoboken Land Co. v. Hoboken, 36 N. J. L. 540; Jersey City v. Morris Canal Co., 12 N. J. Eq. 548, 253; Newark Lime Co. v. Newark, 15 N. J. Eq. 64; Morris Canal Co. v. Central Railroad Co., 16 N. J. Eq. 419, 437; Associates v. Jersey City, 4 Hal. Ch. 714; People. Lambier, 5 Denio, 9; Peck v. Providence Steam Engine Co., 8 R. I. 353; Lockwood v. New York

Railroad Co., 37 Conn. 387; Frankfort. Lennig, 1 Am. L. Reg. 357.

prietor.1 In New Orleans v. United States,2 it was held that the dedication, to the public use of a city, of a quay along a river bank, carried with it the gradual increase by alluvion formed by the river.

§ 158. When the denudation of the soil of the water is sudden and perceptible, the title is not changed. In the case of tide-waters the land thus gained belongs to the Crown at common law,3 and in this country to the State.1 This is true, also, of the navigable fresh-water rivers and lakes of this country in those States where the soil of such waters is held to be public property like the sea, the title to such soil being in the State and not in the United States.6 If navigable waters, owned by the Crown or State, suddenly encroach upon private lands adjoining, and there are marks by which their limits can be determined, the title to the soil thus covered remains in the former owner, and upon the recession of the water it is restored as his property. Though the overflow continues for forty years, yet if the water recedes the owner has his land again.8 Where the side of an island

1 New Orleans v. United States, 10 Peters, 662; Jones v. Soulard, 24 How. 41; Remy v. Municipality, 15 La. Ann. 657; Cochran v. Forte, 7 N. S. (La.) 626; Packwood v. Walden, Id. 88; Parish v. Municipality No. 2, 8 La. Ann. 145.

2 10 Peters, 662, 712.

3 Rex v. Yarborough, above cited; Foster v. Wright, 4 C. P. D. 438; Mussumat Imaum Bendi v. Hergovind Ghose, 4 Moo. Ind. App. 405; Hale, De Jure Maris, c. 1, 4, 6; Hargrave's Law Tracts, 15; 2 Black. Com. 261, 262; Callis on Sewers, 47, 51, 482; Woolrych on Waters, 34; Dyer, 326a; Roll. Abr. 170; Vin. Abr. tit. Prerogative, B.; Com. Dig. tit. Prerogative, D. 62; Bacon's Abr. tit. Prerogative, B.; Phear's Rights of Water, 43; Attorney General v. Turner, 2 Mod. 106; 1 Keb. 301; Whitaker v. Wise, 2 Keb. 750; Royal Fishery of the Banne, Sir John Davies, 59; 2 Vent. 188; Commonwealth v.

Alger, 7 Cush. 53; Chapman v. Kimball, 9 Conn. 38, 41; Champlain Railroad Co. v. Valentine, 19 Barb. 484, 493; Hagan v. Campbell, 8 Porter, 9.

4 Ibid.; Boorman v. Sunnuchs, 42 Wis. 233.

5 Ibid.; Murry v. Sermon, 1 Hawks, (N. C.) 56.

6 Ibid.; 6 Op. Att. Gen. 172; 7 Id. 314. But accretions added to improvements made by the United States belong to it. 5 Op. Att. Gen. 264.

7 Note 2, ante, page 286; Carlisle v. Graham, L. R. 4 Ex. 361; Ford r. Lacy, 7 H. & N. 151; Hale, De Jure Maris, c. 1, 6; Hargrave's Law Tracts, 2, 15; Woolrych on Waters, 22, 37; Foster v. Wright, 4 C. P. D. 438; Murphy v. Norton, 61 Penn. St. 147.

82 Roll. Abr. 168; Schultes's Aquatic Rights, 122; Callis on Sewers, 51, note. See Mussumat Imaum Bendi v. Hergovind Ghose, 4 Moo. Ind. App. 405.