Littoral Rights

The common law rights of a riparian owner below the high water mark of navigable streams and the bed and banks of non-navigable streams are called "littoral" rights.

As explained by Justice Field in Illinois Cent. R. Co. v. State of Illinois, 146 U.S. 387 (1892):

"The riparian proprietor is entitled, among other rights, as held in Yates v. Milwaukee, 10 Wall. 497, 504, to access to the navigable part of the water on the front of 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, subject to such general rules and regulations as the legislature may prescribe for the protection of the rights of the public. In the case cited the court held that this riparian right was property, and valuable, and, though it must be enjoyed in due subjection to the rights of the public, it could not be arbitrarily or capriciously impaired. It had been held in the previous case of Dutton v. Strong, 1 Black, 23, 33, that, whenever the water of the shore was too shoal to be navigable, there was the same necessity for wharves, piers, and landing places as in the bays and arms of the sea; that, where that necessity existed, it was difficult to see any reason for denying to the adjacent owner the right to supply it; but that the right must be understood as terminating at the point of navigability, where the necessity for such erections ordinarily ceased."

As cited by Justice Peckham in Water Power Co. v. Water Commissioners, 168 U.S. 349 (1897):

"[I]n Brisbine v. Railroad Co... in speaking of some of the riparian rights of an owner upon the banks of a navigable stream, the court said:

'What these rights are, especially in regard to land acquired originally from the United States, and bordering, as this does, upon the Mississippi river, we regard as fully and correctly settled by the federal supreme court. Dutton v. Strong, 1 Black, 23; Railroad Co. v. Schurmeier, 7 Wall. 272; Yates v. Milwaukee, 10 Wall. 497. According to the doctrine of these decisions the plaintiff possessed the right to enjoy free communication between his abutting premises and the navigable channel of the river, to build and maintain, for his own and the public use, suitable landing places, wharves, and piers, on and in front of his land, and to extend the same therefrom into the river to the point of navigability, even though beyond low-water mark, and to this extent exclusively to occupy, for such and like purposes, the bed of the stream, subordinate and subject only to the navigable rights of the public and such needful rules and regulations for their protection as may be prescribed by competent legislative authority. The rights which thus belong to him as riparian owner of the abutting premises were valuable property rights, of which he could not be devested without consent, except by due process of law, and, if for public purposes, upon just compensation. Yates v. Milwaukee, 10 Wall. 497.'

"In Transfer Co. v. Brunswick, 31 Minn. 297, 17 N. W. 626, it was held to be the settled law of Minnesota that a riparian owner upon a navigable stream has the fee to low-water mark; and that in addition he owns, as an incident to his ownership, certain riparian rights, among which are the right to enjoy free communication between his abutting premises and the navigable channel of the stream, to build and maintain suitable piers, landings, or wharves on and in front of his land, and to extend the same therefrom into the stream to the point of navigability even beyond low-water mark, and to this extent exclusively to occupy for such and like purposes the bed of the stream, subordinate only to the paramount public right of navigation. These riparian rights the court held to be property, and that they were not to be taken by the state without paying just compensation therefor. The rights which were held subordinate only to the paramount public right of navigation were those mentioned by the court, and not a word was said as to the right of flowage, which was not involved and was not alluded to.

"In Morrill v. Power Co., supra, the supreme court of Minnesota held that the riparian owner of lands upon a navigable stream may use the water flowing past his land for any purpose, so long as he does not impede navigation, in the absence of any counterclaim by the state or the United States. It will be seen that this case does not refer to the right to receive the full amount of the natural flowage from above, but only to the right to use that which does flow, in the absence of any counterclaim by the state or the United States.

"The same general statement of the rights of riparian owners is made in Hanford v. Railroad Co., supra. That case treats of the rights of a riparian owner in the bed of the stream above low-water mark as subject to the right of the public to use the same for the purposes of navigation, and adds that, 'restricted only by that paramount public right, the riparian owner enjoys valuable proprietary privileges, among which we shall consider particularly the right to the use of the land itself for private purposes. ... Subject only to the limitation that he shall not interfere with the public right of navigation, he has the unquestionable and exclusive right to construct and maintain suitable landings, piers, and wharves into the water and up to the point of navigability for his own private use and benefit. [Citing cases.] And it is obviously immaterial, if the public interests be not prejudiced, whether the submerged land be covered with wharves of timber or stone, or be reclaimed from the water by filling in with earth so that it becomes dry land. The land may be so reclaimed.' It is also said in the course of the opinion: 'The limit to the private right is imposed by the public right, and the private right exists up to the point beyond which it would be inconsistent with the public right.' All this was said in regard to the case then under discussion, which related to the right of a riparian proprietor to reclaim the submerged land to the point of navigability, and to alienate the same so that the alienee might have the rights of the riparian owner, although having no interest in the original riparian estate..."

Justice Peckham in Weems Steamboat Co. of Baltimore City v. People's Steamboat Co., 214 U.S. 345 (1909) reiterated:

"The rights of a riparian owner upon a navigable stream in this country are governed by the law of the state in which the stream is situated. These rights are subject to the paramount public right of navigation. The riparian proprietors have the right, among others, to build private wharves out so as to reach the navigable waters of the stream. Dutton v. Strong, 1 Black, 23, 17 L. ed. 29; Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 984; Parkersburg & O. River Transp. Co. v. Parkersburg, 107 U.S. 691, 699, 27 S. L. ed. 584, 587, 2 Sup. Ct. Rep. 732; Illinois C. R. Co. v. Illinois, 146 U.S. 387, 445, 36 S. L. ed. 1018, 1039, 13 Sup. Ct. Rep. 110; St. Anthony Falls Water Power Co. v. St. Paul Water Comrs. 158 U.S. 349, 368, 42 S. L. ed. 497, 504, 18 Sup. Ct. Rep. 157. The courts of the state of Virginia affirm the same rights of the riparian proprietor. Norfolk City v. Cooke, 27 Gratt. 430, 435; Alexandria & F. R. Co. v. Faunce, 31 Gratt. 761, 765. If the wharf obstructs navigation or the private rights of others, or if it encroach upon any public landing, the wharf may be abated. Va. Code 1887, 998. A private wharf on a navigable stream is thus held to be property which cannot be destroyed or its value impaired, and it is property the exclusive use of which the owner can only be deprived in accordance with established law; and if necessary that it or any part of it be taken for the public use, due compensation must be made. The owner of a private wharf on a navigable stream does not, on that account only, hold it by a different title from the owner of any other property which he may use himself or permit others whom he may select to use, while, at the same time, denying its use by anyone else."

Public rights of navigation on navigable streams of the States, however, were determined to dominate over riparian water rights to power generated by the flow of the river. Justice Stone, Fox River Paper Co. v. Railroad Com'n. of Wisconsin, 274 U.S. 651 (1927) affirmed the Wisconsin State court determination that such development was subject to State license and permit :

"Plaintiffs' case rests on the contention that by the law of Wisconsin the rights vested in riparian owners include the right to use the water power and for that purpose to dam the river, subject only to the exercise by the state of its police power to regulate the use of navigable waters in the public interest, and to protect public health and safety; that to withhold from plaintiffs, as the state does under the statute, the right to use their own property unless they agree to surrender it to the state at a price which may prove at the time of transfer to be less than its true value, is a taking of property without due process, prohibited by the Fourteenth Amendment.

"...The trial court, the only state court to express an opinion on this question, held that the right of the riparian owner to make use of the water power in a navigable river by maintaining a dam is subordinate to the plenary power of the state to regulate the use or obstruction of navigable waters; that the state may forbid all obstruction by dam or otherwise; hence, the right of the riparian owner to develop water power by the construction of the dam remains inchoate until the state has given its consent.

'If the Legislature may wholly refuse permission to erect a dam or other structure in the navigable waters of the state, if follows that it may grant such permission upon such terms as it shall determine will best protect the interests of the public. The Legislature could impose the condition that the dam should be removed when it obstructed navigation or that it should be removed at the end of a definite period of time, for example, 30 years.'"

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