(dissenting):
I agree with the State’s contention that the 1967 survey and the 1967 MLW are irrelevant to the demarcation issue before us for decision.
The law of the case is that the Railroad holds title to the natural mean low water line; i. e., the MLW as it existed before the filling operation was commenced. See 267 A.2d 455, 459. The 1967 survey shows an artificial mean low water line; i. e., the MLW as it existed after the filling operation. That line, in my opinion, is irrelevant.
The filling of the foreshore was carried on by the Railroad during the period 1956 to 1966. The latest available survey of the natural MLW, as it existed before the filling was commenced in 1956, is the Army Engineers’ Survey of 1954. The 1967 Survey, on the other hand, shows an artificial MLW lying on the face of the fill after the fill covered the natural MLW. Therefore, it was error, in my opinion, to decide the demarcation issue on the basis of the 1967 Survey and the 1967 MLW.
The Army Engineers’ 1954 Survey thus remains the best evidence of which this case is susceptible as to the true location of the natural boundary prior to the filling operation. Obviously, for the reasons stated by the Superior Court (244 A.2d 80, 83), the 1954 Survey leaves much to be desired in the way of accuracy and adequacy for present purposes. But, under the evidence, it appears reasonably usable for the *271determination of the 1954 MLW. It appears that the 1954 Survey was prepared by the same procedures, the same methods of sounding, the same scale, and the same methods of position points as was the 1942 Army Engineers’ Survey. The 1942 Survey was utilized by the Railroad in all of its filling operations from 1956 through 1966. Since the Railroad was able to proceed with its filling operations on the basis of the 1942 Survey, and since the 1954 Survey was prepared in the same way and by the same methods, it would seem that the 1954 Survey should be usable for present purposes with a reasonable degree of accuracy. The State’s expert witness so testified.
For these reasons, I would reverse and remand on the ground of irrelevancy of the 1967 Survey and the 1967 MLW, with instructions that the 1954 Survey be used to determine the issue of demarcation, if reasonably possible; but that if the probative value of the 1954 Survey is found to be wholly insufficient, then the State’s request for opportunity to develop better evidence, by core drillings through the existing fill to the elevation of the natural MLW, be granted.