20 * HARVARD LAW REVIEW, In Pennsylvania and Vermont he has a right of access to navi- gable water, but not a right to wharf out.^ In Iowa, though a right of access is denied, a right to wharf out is recognized. Until the right to wharf out is exercised, it is not the subject of interference. It is called a franchise appurte- nant to, and inseparable from, the upland, and when exercised, the State is probably divested of its title to the soil under the water.^ In New Jersey there is a w^harfing-out privilege, — a mere license allowed by custom, and revocable by the State before being acted upon. When acted upon, the license becomes irrevocable.^ In Minnesota, Wisconsin, and the United States Supreme Court the right of access and the right to wharf out are both recognized, though apparently treated as one right.* In Minnesota the right is called a natural right,^ and the court has thus far avoided pass- ing upon the nature of the riparian proprietor's title to made lands between the upland and navigable water.^ The Wisconsin court has said that the right must be exercised in aid of naviga- tion, and that, when so exercised, the structures built are ** pas- sively licensed by the State." "^ In Connecticut there is a right to wharf out, or, as it is some- times called, a right of reclamation. It is held to be a franchise, and that it may be sold apart from the upland.^ It has been called an *' interest in the soil," ^ as well as an incorporeal right.^*^ 1 Tinicum Fishing Co. v. Carter, 6i Pa. St. 21 ; Austin v. Rutland R. R. Co., 45 Vt. 215. 2 Tomlin v. Dubuque R. Co., 32 Iowa, 106 ; Musser v. Hershey, 42 Iowa, 356. 3 Gough V. Bell, 23 N. J. L. 624 ; Patterson v. Newark R. R. Co., 34 N. J. L. 532. (Now controlled by statute. Hoboken Land Co. v. Mayor, etc., 36 N. J. L. 540.) ^ Brisbine v. St. Paul & Sioux City R. R. Co., 23 Minn. 114; Carli v. Stillwater Street R. R. & Transfer Co., 28 Minn. 373 ; Lake Superior Land Co. v. Emerson, 38 Minn. 406; Hanford v. St. Paul & D. R. Co , 42 N. W. Rep. 596 ; Delaplaine v. C, & N. W. Ry. Co., 42 Wis. 214; Diedrich v. Northern Ry. Co., 42 Wis. 248 ; Lawson v. Furlong, 50 Wis. 681 ; Button v. Strong, i Black, 25; Railroad Co. v. Schurmeir, 7 Wall. 272; Yates v. Milwaukee, 10 Wall. 497. ^ Lake Superior Land Co. v. Emerson, supra. The definition in the Minnesota case of the right to wharf out is founded upon the case of Lyons v. Fishmongers' Company. There is nothing in the three opinions rendered in the latter case to justify such a cita- tion, except the remarks of Lord Selborne upon the nature of the right of access. There is no intimation in either the opinion of Lord Cairns or Lord Chelmsford that the right of access is a natural right. 6 Carli V. Stillwater Street R. R. & Transfer Co., 28 Minn. 373; Union Depot, etc., Co. V. Brunswick, 31 Minn. 297. ■^ Diedrich v. Northern Ry. Co., 42 Wis. 248 ; Lawson v. Furlong, 50 W^is. 681. 8 Simons v. French, 25 Conn. 346. ^ Nichols v. Lewis, 15 Conn. 137, 143. 13 New Haven Steamboat Co. v. Sargent & Co., 50 Conn. 199, 203.
