and different facility from wharves, and suggesting that when the words "wharf purposes" were used, the thing in mind was the structure and not the structure in combination with a required depth of water.
It is also necessary to consider the effect of the construction for which the city contends, because, in cases of doubtful interpretation, a construction which would result in the unconstitutionality of the statute must be avoided.
While the ownership of a riparian owner of land between the high and low-water mark is not absolute and unqualified, but is limited by the right of the state to improve for public use without compensation, he unquesationably has the right of "access to the navigable part of the river from the front of his lot, 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." Yates v. Milwaukee, 10 Wall. 497, 504, 19 L. Ed. 984. See, also, Philadelphia v. Commonwealth, 284 Pa. 225, 130 A. 491, and many other cases. This right of access, of course, is a right of access for the purpose of navigation or to use the stream as navigable water, and it necessarily includes the right to dredge and prepare the bed of the stream for that purpose so long as the improvement does not burden or interfere with the paramount public right.
It is universally held that the riparian right of access to the navigable part of the river is property. "This riparian right is property, and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it cannot 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 compensation." Yates v. Milwaukee, supra. See, also, United States v. River Rouge Improvement Co., 269 U.S. 411, 418, 419, 46 S. Ct. 144, 147, 70 L. Ed. 339.
The city, of course, had the right to construct the mud fence where it did in front of defendant's land without making compensation for any direct injury which it may have inflicted by so doing. And, had it entirely destroyed the defendant's right of access, it still would not be liable to make compensation, provided its operation had some positive relation to the public right involved and was not an arbitrary exercise of power having "no real or substantial relation to the control of navigation or appropriateness to that end." United States v. River Rouge Improvement Co., supra.
These are the principles of the common law which clearly define the respective rights of the state and the riparian owner in the shores of navigable streams. But when it comes to assessing the cost of the improvement against the riparian owner, new considerations arise. Here the power of the state is definitely curbed in another direction by its Constitution. An individual property owner may not be assessed the cost of improvements which are for the general public benefit. Hammett v. Philadelphia, 65 Pa. 146, 3 Am. Rep. 615. This limitation may impinge upon the common-law rights of the public, but if it does, the latter must give way, because the state may, of course, modify or curtail its sovereign rights to any extent that it chooses. It follows that if the Legislature, under the guise or appearance of exercising the right of the public in navigable waters or exerting control over navigation, in effect levies an assessment for a public improvement against a property owner, its act would be unconstitutional.
The statute in question was undoubtedly drawn with the constitutional restriction in mind. The general improvement is recognized as a public benefit and no direct attempt is made to assess the cost of it upon the property owners. Their liability was made to depend entirely upon their own voluntary act in making use of it. It was of a quasi contractual character, and indeed this suit ultimately sounds in contract.
But it will be seen that if the riparian owner attempts to exercise his right of free access to navigable water (which includes the dredging or preparation of the channel), the statute, if construed as the city contends it should be, immediately binds him to pay for the very structure which impaired it. It is one thing to say that the owner's right of free access to the navigable portion of the river may be taken or destroyed for the improvement of navigation. It is quite another thing to say that the Legislature may so circumscribe him that he cannot exercise it without subjecting himself to a liability to pay the cost of a public improvement upon the theory that it is a voluntary assumption on his part of a quasi contractual obligation. This would simply be doing by indirection what Hammett v. Philadelphia forbids to be done directly.It follows that the plaintiff's interpretation of the act would make it unconstitutional.
All of the foregoing considerations lead me to the conclusion that the act must be so construed so as not to include in "other wharf purposes," whatever use the defendant may be making of the protection afforded by the mud fence in connection with his ship basins.
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