Lead Opinion

Torrahoe, J.

In 1892 the harbor commissioners gave Mr. Lane a written permit to wharf out over the tide-water flats in front of his upland, for a distance of about 426 feet towards the then only existing channel there. In September, 1896, they by a vote, under the circumstances stated in *694the record, revoked that permit in part, arid, in effect, limited his right to wharf out, to the new channel made in August, 1896, which was about 200 feet inside of his permit of 1892. In his application to the Superior Court the only thing of which Mr. Lane complains is the’ passage of this vote. The main question before the trial court, and upon this appeal, is as to the validity of that vote. If, under the circumstances stated in the record, the board had the power to pass this vote, then we think the power was legally and properly exercised, and the judgment of the court below was right.

The determination of this question involves a brief consideration of the rights and.powers of the State over these tide-water flats, of the rights of the upland proprietor to wharf out over them, and of the powers conferred upon the harbor commissioners with respect to them.

In our own State it is elementary law: (1) that, subject to the limitations of the Federal Constitution, the State has the jus publicum, or right of governing its shores and navigable waters for the protection of public rights, and also the jus privatum, or title to the soil itself below high-water mark, in trust for the public use and benefit; (2) that the littoral proprietor owns in fee only to high-water mark, but that he has, in the shore in front of his upland, certain exclusive advantages called in our reports rights, privileges, and franchises, among which is the right of access to actually navigable water by wharfing out; (3) that the right or privilege of wharfing out, certainly so far at least as it has not been actually exercised, is held subordinate and subservient to the public right of navigation.

These statements of the law are supported by the dicta and decisions of this court in all the cases upon this subject, from that of East Haven v. Hemingway, in the 7th Conn., down to that of Prior v. Swartz, in the 62d Conn.

Over the tide-waters in question, then, the right of public navigation is a dominant right in relation to the unexercised right of wharfing out; and whenever such right to wharf out conflicts with the exercise of this dominant right, the right to wharf out must give way. For the purposes of this *695case it is, perhaps, sufficiently accurate to say that the duty of protecting this dominant right rests upon the State and the United States, and consequently the right and power to protect it is in them. State v. Sargent & Co., 45 Conn. 358; Gibson v. United States, 166 U. S. 269.

This power to protect the dominant right, includes not only the power to keep the navigable waters free from encroachments and obstructions, but also the power to improve the navigability of those waters by deepening, straightening or widening old channels, or digging new channels, or otherwise; anywhere below high-water mark, certainly as against the unexercised right to wharf out. Hollister v. Union Co., 9 Conn. 436; Transportation Co. v. Chicago, 99 U. S. 635; Gibson v. United States, supra; Holyoke Water Power Co. v. Conn. River Co. (U. S. Cir. Court), 52 Conn. 570.

This power of the State to protect and improve the navigability of the waters of New Haven harbor, is now vested largely in the board of harbor commissioners for that harbor. State v. Sargent & Co., supra. By the second section of the Act establishing said board, there is given to it “ the general care and'supervision of New Haven harbor and its tide-waters, and of all the flats and lands flowed thereby, in order to prevent and remove unauthorized encroachments and causes of every kind which are liable to interfere with the full navigation of said harbor, or in any way injure its channels, or cause any reduction of its tide-waters.” By the fourth section it is provided,, in substance, that no person shall build over the harbor or tide-waters any bridge, wharf, pier, or dam, or fill any flats, or drive any piles below high-water mark, without a permit from the board, and that all such work shall be done under the supervision of the board. By the sixth section “ any erection or work ” made within the tide-waters of the harbor without the sanction of the commissioners, where such sanction is required, is declared to be a public nuisance, and the commissioners are empowered to bring suits in the name of the State to prevent such nuisance. Section seven empowers the commissioners to apply to congress “ for appropriations for protecting and improv*696ing said harbor.” Section eight provides that the expenses incurred by the commissioners shall be paid by the city of New Haven, and further, that “no contracts shall be made, and no acts done by said commissioners, which involve the payment of any money from the treasury of said city, except as herein provided, without an appropriation expressly made for that purpose by the court of common council of said city.” 7 Special Laws, p. 287.

Under this Act we think the State has delegated to the harbor commissioners, as its agent, such power as the State itself possesses, not only to protect, but to improve, the navigability of these waters; but the exercise of the power to improve seems to be limited to cases in which valid appropriations have previously been made to the board for improvements, and to cases where private individuals or corporations are willing to make the improvements at their own expense. In numerous instances, as may be seen in the volumes containing our special laws, the State has permitted private individuals and corporations to improve the navigability of its waters at their own expense, and under the Act aforesaid we think the board has the same power. This power would be subject, of course, to the limitations imposed on it by the Constitution and laws of the United States. Subject to those limitations, we think the board had full power to authorize the digging of the new chaimel, and full power, under the circumstances detailed in the record, to pass the vote of which the appellant complains.

Lane had obtained a permit to wharf out in front of his land for a distance of about four hundred and twenty-six feet. - Under that permit he wharfed out forty or fifty feet, and there stopped. This was the condition of his wharf when the new channel was dug in 1896. The northerly or inshore line of the new channel in front of Lane’s land, was in the neighborhood of two hundred feet inside of the harbor line and of his permit line, and about two hundred feet outside of his wharf. A portion of the old channel in front of the wharves in this part of the harbor, was shallow, narrow and very crooked, and the demands of public navigation *697required that it should be straightened, deepened and widened. The new channel, six hundred feet long and sixty feet wide, running in part over the flats in front of Lane’s upland, was made to avoid this narrow, shallow and crooked portion of the old channel, and was in effect simply a straightening and improvement of it for the benefit of navigation. It is found that the new channel greatly improves the navigability of these waters, and that “ the demands of public navigation require that it be kept open and unobstructed.”

Under the Act of Congress approved July 13th, 1892, entitled “ An Act making appropriations for the construction, repair and preservation of certain public works on rivers and harbors, and for other purposes,” a part of which is in substance recited in the permit issued by the secretary of war, we think the secretary had power to authorize private individuals to dig this new channel for the benefit of navigation at their own expense.

This new channel was thus made with the sanction and approval of the State and of the United States, through their duly authorized agents, respectively. It was to be made under the supervision of the engineer officer of the United States in charge of this locality, and of the board of harbor commissioners; and for aught that appears of record it was so done. The work was thus done under the authority and supervision of the State and of the United States, and for the purposes of this case must be regarded as having been done by them. The work was done, so far as the present case is concerned, by the private individuals who executed it, in good faith and strictly according to the plan approved by the secretary of war and the board of harbor commissioners.

This new channel, then, was rightfully made across these flats, unless the mere digging of it constituted an invasion of the appellant’s rights of property. If it was rightfully dug, we think the board had full power to modify the permit of 1892, and was fully justified in modifying it in the manner set forth in the record. The privilege of wharfing *698out is given to the owner of the upland to enable him in that way to reach deep water. When by his wharf he reaches deep water, there is no reason why he should wharf out further; and if, as in this case, before he has wharfed out, deep water is brought nearer to him than it was before, there is no reason why that deep water should not be the limit of his privilege.

The appellant claims that the digging of the new channel constituted a taking of his property, an invasion of his rights, and that neither the State nor the United States could do this, nor authorize it to be done, without condemning that property and making compensation therefor. It is upon this fundamental claim that most of the other claims of the appellant are based. This claim is without foundation. It arises we think from a misapprehension of the exact nature of the unexercised right to wharf out, and of its relations to the dominant right which was exercised'in digging the new channel.

So far as the appellant’s right to cultivate oysters upon these flats is concerned, he clearly held it subject to the right of any wharf or pier owner to cut a channel through the designated ground in front of such wharf or pier in order to reach deep water; Prior v. Swartz, 62 Conn. 132; and if this be so, he certainly held that right subject to the right of the State and of the United States to cut a channel here if the improvement of navigation required it. The unexercised right to wharf out he also held subject and subordinate to the dominant right in the United States or the State, or both, to improve the navigability of the waters here. The mere existence of a right to wharf out does not preclude the exercise of the dominant right; and if, in the legitimate exercise of that dominant right, the advantages and privileges of the upland proprietor in or over the flats are diminished or even destroyed, it is damnum absque injuria. He held his rights subject to just such a contingency. Gibson v. United States, supra. In this view of the case, no property of the appellant was taken and no rights of his were invaded, by the mere digging of the new channel. It follows from this *699that he was not, as claimed by him, entitled to notice and hearing before the secretary of war and the commissioners, before the permits to dig the new channel were issued; and that so far as he is concerned, and in this proceeding, they were properly issued and fully empowered Smith Brothers to dig the new channel.

Upon the facts found we are of opinion that the vote complained of was a valid vote, and that the court did not err in confirming it.

There is no error.

In this opinion the other judges concurred, except Baldwin, J.

Concurrence in Part

Baldwin, J.

(concurring in the judgment, but dissenting in part from the opinion). I concur in the opinion of the court that the privilege of wharfing out is given to a littoral proprietor to facilitate his access to deep water, and that when deep water was brought by the newly dug channel nearer to the appellant’s upland than it was when his as yet unexercised license to fill upon the flats was originally granted by the board of harbor commissioners, that board had a right to revoke its grant without notice to him, so far as to limit his wharfage rights to the line of that channel; that tins limitation took from him no property or vested right; and therefore that no provision for compensation was required.

I do not think it necessary to determine whether the channel was rightfully dug. It seems to me enough that it was dug under color of right. Had it been the work of a waterspout, or a ship driven by a hurricane, the situation would have been the same. The fact of the existence of such a channel made it inexpedient that its navigation should be barred by constructing a wharf across it.

I therefore concur in the judgment; but I do not concur in so much of the opinion as upholds the validity of the permits or licenses from the board of harbor commissioners and the acting secretary of war of the United States, under which *700the new channel was dug across the flats. As to that, grave constitutional questions are involved, which it seems to me unnecessary to decide in order to dispose of the case in hand.