Bell v. Gough

23 N.J.L. 624 | N.J. | 1852

Elmeb, J.

It is admitted, on all hands, that the defendant in this court, who was the plaintiff in the Supreme Court, was at the time of the trespass complained of the owner of the property above the high water mark of the Hudson river, and abutting thereon; and it is also admitted, that if the said defendant, by reason of such ownership, or of his having appropriated the shore to himself by wharfing out, or by raising the land above the flow of the tide, previous to the passing of the act of the legislature of the 8th of November, 1836, had a title to the place where the alleged trespass was committed, then the judgment of the.Supreme Court should be affirmed. The place in question is ground artificially made between the original ordinary high water line of the river and the ordinary low water line, and must be understood by us as it was by the majority of that court, to have been reclaimed before the passing of the act referred to, upon which alone the title of the plaintiff in error is maintained. The legislature did not, by that act, undertake to vest in Nathaniel Budd and his assigns any land to which the state had hot itself a title, nor is it pretended that it could do so.

There can be no question but that, by the ancient rule of the common law, as understood in England at the time this state was granted to the Duke of York and since, the title of owners of land bounded by the sea or by navigable tide rivers extends only to the ordinary high water line, and that the title to'the shore below that line, ás well as of the soil under the water, is prima fade in the sovereign. It having been authoritatively settled by the Supreme Court of the United States, in the case of Martin v. Waddell, that the title to"this kind of property was never vested in the boards of proprietors, so that they could grant the same to individuáis, the important question in this case is, whether the ancient common law of England was adopted and remains in force in this state, or whether it has been modified by statute or by a local common law.

Upon the part of the plaintiff in error, it has been strongly insisted that the case of Marlin v. Waddell establishes the principle, that by the common law of New Jersey, as well as by that law as held in England, the title to the soil below the ordinary high water of navigable tide rivers is vested exclusively in the sovereign power, and that the owner of the adjoining upland has no title to or right in the shore below that line. Rut I do not so understand that case. The plaintiff claimed no title or right as owner of any upland, but rested his claim wholly on a title to land covered by the waters of the Raritan river and bay, derived from the East Jersey proprietors ; and the only question was, whether the private property of such laud ever was vested in those proprietors, so that they could grant it to individuals. The court held that it never was so vested. Chief Justice Taney, who delivered the opinion of the majority of the court, puts the decision on the ground, that although the grant of Charles II. and the subsequent grant to the East Jersey proprietors included the shores and bottoms of the navigable rivers, yet that by the true construction of those grants, which included powers of government, and were to be regarded and interpreted as instruments upon which were to be founded the institutions of a great political community, they were granted simply as a part of the prerogative rights annexed to the political powers conferred on the grantees, and were not, like the upland, to be held or transferred as private property, but followed the sovereignty, and, upon the surrender of the powers of government, reverted with them to the crown. The common law doctrines in regard to the shores or to the soil under the rivers were no further in question than as they served to illustrate the meaning and to determine the true construction of the grants; and, of course, those doctrines were rightly assumed to be such as were established by the common law of England at the time the grants were there made. The question now is, not what is the common law of England, about which there is no dispute, but what is the commou law of this state. That some of the doctrines of the common law have never been considered as applicable to our circumstances, and have never been adopted here, and that others have been materially changed by our local usages, is not disputed. We are now to consider whether the rules of the common law in regard to the ownership of property adjoining to the sea or to our navigable rivers have been adopted in this state, or whether there is evidence that they never have been in force here or have been materially changed.

In the case of Arnold v. Mundy, Chief Justice Kirkpatrick puts the decision of the Supreme Court of this state, so far as the proprietary right was concerned, upon principles similar to those afterwards adopted by the Supreme Court of the United States. But in this case the plaintiff claimed not only under a proprietary right, but by virtue of his possession of the adjoining upland, so that the doctrines of the common law of this state in reference to shore owners were brought in question, and were held by the chief justice to be the same as those of England. It is to be remarked, however, that the decision of that point does not seem to have been essential to the determination of the case, and it does not distinctly appear whether the other judges agreed with him in that particular or not. The attention of the court was but little directed to it, the main stress of the case evidently being on the other point. No reference appears to have been then made to a local common law different from that of England, although two of the distinguished couusel engaged in that case, Mr. Wall, who was couusel for the plaintiff, and Mr. Wood, of counsel for defendant, afterwards, in the cases of Martin v. Waddell and of Bennett v. Boggs, admitted the existence of such a law. Be this, however, as it may, the case of Arnold v. Mundy cannot be considered as a controlling authority in this court. The principles upon which it was decided have been subjects of discussion and controversy ever since, and have not become, so far, established and settled rules upon which titles have been founded, as to render it improper to bring' them under review in an appellate court, where they come, for the first time, directly in question.

Is there then sufficient evidence of a common law in New Jersey, in regard to the title and rights of shore owners, different from the acknowledged common law of England? and if so, what is that law? According to Sir Edward Coke (2 Inst. 21), common right and common law are synonymous terms. It has always been regarded, and very justly, as one of the excellencies of the system of common law, derived originally from the general custom of the country, that it is not so inflexible as a statute, but may be modified from time to time, as circumstances require. It was said by the court, in the case of Addison v. Otway (2 Mod. 233), that the law hath great regard to the usage and practice of the people, the law itself being nothing else but common usage, with which it complies, and alters with the exigency of affairs. The constitution of this state, adopted in 1776, provided “that the common law of England, as well as so much of the statute law as have been heretofore practised in this colony, shall still remain in force, until they be altered by a future law of the legislature.” It was insisted on the argument, and I admit correctly, that the mere fact of there being no positive evidence of the adoption of any principle of the common law prior to the Eevolution, will not be sufficient to exclude it, if in its nature it is adapted to our circumstances, and is not in opposition to the principles of our government. The presumption undoubtedly is, that all the common law, not directly repugnant to our republican form of government, and not changed by statute, was in full force. Before it can be admitted to have been disused or modified, there ought to be very convincing evidence that a contrary usage was universal and of long standing, as was the case in regard to the duty of the sheriff in levying an execution, who, by the strict rule of the common law, was required to remove the goods levied on into his own possession : but who, by the custom of this state, adopted by the courts as its peculiar common law, is allowed to leave them in the hands of the defendant.

That it has been the common understanding, as well in West as in East Jersey, that the owners of land bounding on navigable waters had an absolute right to wharf out and otherwise reclaim the land down to and even below low water, provided they did not thereby impede the paramount right of navigation, is undoubted. The usage to do so from the earliest settlement of the country has been universal; and until recently the right to do so was never questioned, either by individuals or by the government. A vast amount of labor and capital has been thus expended, to the great benefit of the community. Not only wild marshes, overflowed at extraordinary tides, but large tracts of mud flats lying below the ordinary high water line of our rivers and navigable creeks, such (as by the common law of England are held to be the property of the sovereign, and such as in the case of Lowe v. Govett (3 B. & Add. 863) were the subjects of a parliamentary grant, have been embanked and reclaimed, and by great expense transformed from a perfectly useless to a very valuable and productive property, by individuals or companies who never thought of obtaining grants for them, or licenses to use them from the crown or the colonial government or the state. The mud flats lying outside of the banks, and subject to the daily'overflow of the tides, are now constantly resorted to for mud to"repair the banks, and in many cases are indispensable to their maintenance.

There is the most ample evidence that this understanding and usage are of ancient date, and universal in all parts of the state. Much discussion took place on the argument before this court, as to the true construction of the patent from Governor Carteret for Bergen township in 1668, and of the subsequent deeds from the trustees of Bergen and the attorney of Robert Kennedy to John B. Coles, under which the plaintiff below claimed, and of the allotments made by the commissioners appointed by the legislature, in 1763, to make partition of the township of Bergen. Conceding that, according to the principles of the English common law, the true construction of the patent would be as it was held by the Supreme Court when this case was first before it in 1847, (1 Zab. 162) I think there is convincing evidence that the commissioners, when they made the maps of the bounds of Bergen township the location of the several patents and grants, and the partition of the common lands in 1764, filed in the secretary of state’s office and the clerk’s office of Hudson, and produced before this court, took for granted that the parties bounded on the waters had an absolute right to the shore as far as low water mark, and that the several proprietors so used and enjoyed the premises without question or doubt. All the different lots described by those commissioners, which are bounded on the water, are left without any designation of the rights of the several proprietors to the shore itself. But there are two small lots excepted out of the West India farm, which was in the possession of Kennedy, numbered 3 and 4, which are not bounded on the water, but lie very near to it; and in regard to those two particular lots, the commissioners, after giving their boundaries, add, “ together with all land lying in front down to low water mark.” I cannot doubt that this special clause was added in these two cases because the boundaries are not described as touching the water, as in other cases, and because the understanding of the commission.ers was that the mere bounding on the water, gave a right to the proprietor to the low water mark. If this may be considered, from the language of the respective allotments and the appearance of the maps themselves, as doubtful, I think there can be no doubt on the subject, if we take into consideration well established facts which are now matters of history. The commissioners appointed, in the year 1807, on behalf of the state of New Jersey to settle with commissioners on the part of the state of New York the jurisdictional line between the two states, all of whom were residents of East Jersey, well acquainted with the facts, and three of whom were experienced lawyers of high standing,^* in one of their letters addressed to the New York commissioners, published by authority of the legislature of this state, (He-•port, p. 23,) make use of this language : t( We may with perfect correctness state that, as far back as the memory of man extends, or any other evidence can be adduced, to the present hour, the inhabitants of New Jersey ha,ve used and uninterruptedly exercised the right of erecting and establishing docks, wharves, piers, ferries, and fishing weirs in front of their lands adjoining Hudson river and all other navigable waters.” And this assertion was not disputed by the New York commissioners. The commissioners afterward appointed on the part of New Jersey to settle the same controversy in 1827, at the head of which was that eminent lawyer Richard Stockton,^* being unsuccessful in accomplishing the object, reported their proceedings to the' legislature, and appended an elaborate statement of the facts and arguments in relation to the dispute, which was principally written by Mr. Stockton. On page 50 of this report it is stated that Archibald Kennedy, one of the king’s counsel in New York, and receiver general of the king, made a location, under the East Jersey proprietors, of the farm at Horsimus, which was called the Dutch West India Company’s garden, and might have been supposed to have been acquired personally by the king, as that company acted in a public capacity as governors of the country while it remained under the dominion of the Dutch ; “and he exercised all acts of ownership on the adjacent waters under his New Jersey title.” This statement is the more noticeable, because it appears, by a paper produced by the counsel of the plaintiff in this court, that, in 1802, Mr. Stockton was the attorney and agent of the heirs of Kennedy, and having by that paper assented, on the part of those heirs, to the act of the legislature, passed November 22, 1802, empowering commissioners to lay out a road to Nathaniel Budd’s dock, and authorizing him to erect a ferry from his dock to New York, counsel erroneously supposed he must have considered the Kennedys to have had no title or claim to the shore below high water mark.

Now it is not pretended that this ancient and uninterrupted usage, at the very place mow in controversy as well as in all other parts of the state, so emphatically asserted and so unquestionable, was authorized by any special grants from the crown or from the colonial or state governments. The regular common law mode of proceeding to authorize the erection of wharves or other structures on the shores of the sea, or navigable rivers, where the property remains in the crown, is to sue out a writ of ad quod damnum, and upon the return of an inquest by a jury, finding that no damage would result to the king or others by the grant, the crown licenses what would otherwise be a pourpresfure. But a license, obtained either with or without a previous inquest, does not authorize such an encroachment as amounts to a nuisance, it being held that the crown cannot license a nuisance. There is no trace of any such proceeding in New Jersey. There was, indeed, every thing in the circumstances of our people to render such a course unlikely. The erection of a wharf or dock was a public as well as a private benefit, and there has always been the strongest reasons for promoting, and none for hindering such undertakings. Even in England there is no doubt that many, probably most of the wharves, except in the great seaports, and harbors, are made on private property, It appears by the ease of Blundell v. Catterall (5 B. & Al. 268) that much of the shores, and in some eases the beds of navigable rivers, are owned by the proprietors of the adjoining lands, claiming by prescriptions or under ancient grants, and that where manors adjoin them they are usually so held. Lord lale, (liar. 27 ch. 16), treating of the shore, says, “it may not only be parcel of a manor, but de fado it many times is so.” The prerogative of the crown, so far as it gave to the king the shores of the sea and of navigable rivers, rather as private property iban as a sovereign right for the protection of the public, was not applicable to a distant province ; and, indeed, the exercise of it, so as to require in all cases a license to prevent him from seizing and abating or renting at his pleasure structures on the shores or marshes reclaimed from the tide, whether there was or was not an obstruction of the navigation, could not but have been considered as an intolerable grievance, and, had it been commonly insisted on would not have failed prominently to appear among the oppressive acts which occasioned and justified the Eevolution. According to the reasoning of Chief Justices Kirkpatrick and Taney, before adverted to, the king never granted to the proprietors of the province his jus privatum in the shores and soil of the navigable waters, but only that jus publicum which was essential to the powers of government. That the jus publicum, or, in other words, the sovereign right of jurisdiction over them is vested in the gov- . eminent of the state, and is ample for the protection of the public right of navigation and of all other public rights is undoubted. There is no evidence that the jus privatum, the right of private property in the shore to low water mark, was ever asserted in the colony as a right of the crown, or that it lias until recently been claimed by the state; but there is on the contrary, in my opinion, the strongest evidence that this right has been abandoned to the proprietors of the adjoining land from the first settlement of the province, and exercised by them to the present day, so as to have become a common right, and thus the common law.

What was the origin'of the usage, it may be difficult to say. If it be conceded that it arose from a mistaken apprehension of the doctrines of the English common law, or from what must now be admitted to have been a mistaken construction of the original grants to the first proprietors, I do not see that this concession will materially influence the result. The 'mistake was universal, and was acted on throughout the states. Mr. Griffith, an eminent lawyer of West Jersey, and especially distinguished for his knowledge of laud titles, says, in his Law Register for 1821-2, that the construction had always been, that in case of land bordering on either fresh or tide water rivers, the owners held to the middle of the channel. This construction was probably founded on the doctrine insisted on by the New Jersey commissioners of 1807, in their correspondence with the New York commissioners, that the king having granted the rivers within and bounding on the province to the proprietors, as they assumed to be the fact, they thereby became private rivers, and thus the common law applicable to such rivers was attached to them. This doctrine has been overturned by the case of Martin v. Waddell, but the usage under it is a fact that remains. The rivers are not private rivers; but so far as the citizens in general have acted for a long series of years under a usage, reasonable in itself and conducive of public good, which led them to bestow labor and capital upon property, to which under other circumstances they might have had no title, such a usage presents just that new exigency of affairs to which the common law so happily and so justly adapts itself. The mistaken origin of a usage will not necessarily prevent the courts from sanctioning it as right and lawful. Many of the most important doctrines of the common law had their origin in mistakes, one of its maxims being communis error facit jus.

A usage so universal and of such long standing, and in itself so reasonable, ought, in my opinion, to be adopted by the court as the law of the land. But this usage has besides the support arising- from the fact, that it has been sanctioned, or at least acted upon and treated as legal, by many statutes of ancient and of modern dates. An act, passed in 1782, provides that “ the owners of two-thirds of any body of marsh exposed to the overflow of the tide ” may compel the other owners to uuite with them in erecting and maintaining the banks. Here individuals are expressly recognized as the owners of property exposed to the overflow of the tide, without any restriction to cases where the property lay above the ordinary high tides; and under the provisions of this act much property originally below such tides has been reclaimed, and ever since occupied as private property. Long before this general act, there had been special and private acts of like tenor, providing for particular parcels of overflowed land. None of these acts purport to grant any rights of property. Their object is to provide a mode by which several owners of adjoining property may act in concert, and by which a minority of such owners may be subject to the will of a majority not less than two-thirds. Individual claimants of overflowed lands have always embanked them, as owners having a right to preserve their own property, according to their own views and as their respective interests might dictate.

Ferries -were established at an early date over the creeks and rivers of this state, and in several eases acts were passed regulating the tolls, that being a matter of public concern, but in none of them is there any thing like a grant of the land on t he shore necessarily used in the erection of wharves and slips. In 1765, an act was passed laying out, and establishing by legislative authority, a four rod road from Newark to Bergen point, which extends the description of the road to low water mark on both sides of the intervening rivers, and empowers the commissioners to receive donations to defray the expense of the road- and ferries; and in the seventh section provides that the proprietors of the soil at any of the places where ferries are to be erected shall have the privilege of erecting and providing such buildings and necessaries as are required, and of receiving the rents and profits. By a supplement, passed in 1768, the proprietors of the land adjoining the ferries are authorized to demand the occupation and sole management of the ferries, upon giving bond to keep up, maintain, and repair the causeways, ferry stairs, and ferry houses. One of the sections of tin’s supplement recites that a dispute is subsisting between two individuals, who are named, touching the title to the meadow on the east side of Hackensack river, where the ferry stairs is fixed, and gives them twelve months after the determination of the dispute to demand the ferry. Bearing in mind the facts already adduced showing the common understanding to have been that shore owners were entitled to the land down to the low water mark, and were in the universal habit of using it as their private property, these acts, it seems to me, distinctly recognize that usage, and treat it as a common right. The road is laid in express terms over the upland and over the land of the shore down to low water mark, because private property was taken for public use, and it was understood that the private property extended to the low water mark, and the title of the proprietor to the ferry and to the shore between high and low water upon which the ferry stairs was erected, is acknowledged and protected. There are 'several ' other acts of very similar tenor, and many creating corporations with powers to construct piers and wharves necessarily extending below the high water line, in none of which, except some of quite modern date, is there any specific grant of the land covered by water. They are all framed upon the principle, and take for granted, that every individual owning the adjoining land has a legal right to occupy and improve the shore at his pleasure, and are passed to give corporate powers to authorize what might otherwise be considered an obstruction of the navigation, and hence a nuisance, or to regulate tolls or other matters of public concern.

It is conceded, as well by those who contend for the application of the strict rule of the English common law to the shores of navigable waters in this state, as by those who think we have a local common law on this subject different from that of England, that the owners of the adjoining land in this state have the exclusive right of fishery on such shores. If this be so, then it follows that the English law is not in full force here. According to that law, the right of fishing on such shores is prima fauie a common right, and does not belong to the owner of the upland, unless he owns also the shore, that is the land between the ordinary high and low water, or has bv grant a several fishery. The case of Bagott v. Orr, (2 Bos. & Pul. 472) recognises the general right of the subject to take all kinds of sea fish, including even shell fish on the rocks and sand between high and low tide, in all cases where there is not a private right to the shore. If this common right of fishing on the shore extends so far as to include shell fish that do not swim, a fortiori it includes the right to take swimming fish by drawing a seine on the shore below the high water line where the private property commences. Indeed the right to do this was never disputed in Xngland, and I suppose is just as well established there as the right to catch them by a hook and line from a boat. The recognition of such a right here would destroy every private shore fishery in the state. The exclusive right of the land owner in New Jersey does notarise, as Judge Randolph■ supposes, (2 Zab. 491) from the necessity of drawing the seine upon the upland, for no such necessity exists, except under peculiar circumstances or at high water, when the seines, in point of fact, are not commonly drawn at all. This right undoubtedly had its origin in the uniform practice of the holder of the upland to' extend his exclusive right to the soil down, at least, to the low water mark. It has long existed, not only on the shores of the Delaware, but on the shores of all the rivers and creeks of East and West Jersey where shad and herring come in sufficient numbers to make the right valuable.

In the case of Bennet v. Boggs (Bald. R. 76) Judge Baldwin says, “ It is admitted that, from a very early period of the history of the state, shore fisheries have been considered as private property, capable of being devised and alienated with or separate from the land to which they are annexed, subject to taxation, and taxed as other real estate. It is not pretended that there ever existed a common right of fishery in the citizens of the state on or over the lands thus owned to low water mark.” In the case of Yard v. Carman (Penn. 938), decided by the Supreme Court in 1812, Judge Pennington expressed himself very strongly against an exclusive right of fishery in the Delaware, and in favor of the common right of the people to catch fish in its waters; but the plaintiff in that case obtained his verdict upon a count which simply complained of the defendant for fishing in his “free fishery,” and taking his fish, without in any way claiming title to upland or shore land or complaining of any unlawful entry upon his close. The rights of shore owners, as such, were not before the court, and the judge makes no reference to them, all his remarks being applicable to a case of fishing in the waters of the river, without interference with the shore. The decision of the court was upon another point. In other cases the right of the shore owner to the exclusive fishery has been sustained, both at the circuits and the bar of the Supreme Court.

Numerous acts of the legislature have sustained and regulated the fisheries in the Delaware and in several other rivers and creeks. The tenth section of the act of 1808 (Rev. Stat. 381) enacts that if any person shall lay out any seine into the river Delaware beyond the right angle of the shore and where his line strikes the river at low water mark a going out, or suffer it to swing beyond the right angle of the shore of the river, and where his line strikes it at low water mark a coming in, except' by unavoidable accident, he shall be liable to pay a penalty of twenty-five dollars to the person against whose land such trespass shall be committed. An act, passed in 1828, (Rev. Stat. 479) which applies to all the bays, flats, rivers, aud waters within the state, makes it unlawful for non-residents to draw a seine therein to catch fish, with the proviso that nothing in the act shall be so construed as to affect the right or privilege of any owner or owners, tenant or tenants, not resident in this state, from fishing upon or opposite to his, her, or their own shore in this state. In both these acts, which are now in force, there is a distinct recognition of an absolute ownership, in the one ease to low water mark, and in the other of the shore, which ex vi termini includes the land to low water mark, and the private right of fishery is treated as appertaining to such ownership.

But three cases of distinct grants of laud covered by water or of the shore, by the legislature, are to be found in our statute books, and these have been made since the decision in Arnold v. Mundy. One was a grant of the Pea-patch, an island in the Delaware; another was a grant, to Col. Ogden, of land in New York bay, far beyond low water mark; the third is the grant to Nathaniel Budd, under which the plaintiff in error claims. None of these purport on their face, or could have been understood to interfere with or affect the shore between high and low water mark adjoining upland in the possession of any individual proprietor. The grant to Budd, whatever may be its validity or legal extent, upon which points I do not think' it necessary to give au opinion, is contained in an act entitled, “An act vesting in Nathaniel Budd all the right and title of the state of New Jersey to a certain tract of land under water in the Hudson river,” and there is nothing in the act itself which would lead any one to suppose that it included any land above the low water mark.

Directly after the first decision of the Supreme Court in this case (1 Zab. 167) the legislature, by an act, approved March 9, 1848, provided that it shall be lawful for the owners and holders of all docks and wharves to use, possess, and keep in order the same, and to demand and recover wharfage and dockage for the use thereof. By a subsequent act, approved March 18, 1851, passed after the final decision which is now before us, shore owners are empowered to build on or otherwise improve the same to low water mark without restriction, and below that line by obtaining a license, in the manner therein prescribed. These acts conform to the interpretation óf the common law adopted by the court, and serve to show the necessity that was felt to protect rights acquired under the usage before supposed to be legal.

The facts and considerations above stated, it seems to me, establish not only a usage originating with the first settlement of this state, coextensive with its limits, and until recently unquestioned, for the owners of land adjoining to its navigable waters to appropriate to their exclusive use the.shores of such waters to the low water line, but that this usage has been sanctioned by the courts and by repeated legislative enactments too unequivocal to admit of dispute and too plain to be disregarded. It may have originated in a mistake as to the true doctrine of the English common law in regard to such waters ; but it was suited to our wants and circumstances, and eminently conducive to the public good. No one doubts that the legislature might at any time have altered the common law by a direct enactment to that effect; and I do not doubt myself that it would have done so long ago, had it been supposed to be necessary to give to a common usage the validity of a common right. What they did not deem it necessary to do by direct enactment, they have done by many indirect provisions equally effective.

Can it now be wise or just to consider improvements- thus sanctioned, so long enjoyed and so beneficial, as encroachments on the public domain, and at best dependant on future legislation or on the disposition of the courts to presume governmental grants, and thus set aside another doctrine of the common law, that time does not run against the sovereign power? I cannot think so.

I have considered this question, thus far, without reference to the usages or laws of other states of the Union, because the precise question before us has reference to the common law of this state. But it may well be regarded as affording no little confirmation to the argument in favor of a modification of the doctrines of the common law here, if we find ihat a similar modification has taken place in other states situated, in reference to the common law of England, very much as we are. In Massachusetts, an ordinance was made, at an early date, giving to the proprietor of land adjoining the sea the right to the land to low water mark, not exceeding one hundred rods below the high water line; and although this ordinance was annulled, the usage still prevails, and is held to be the common law of the state. In Maine, to which the ordinance never extended, the same rule prevails. In Rhode Island and Connecticut, the usage of the owners of the land adjoining the water to wharf out is recognized as the local common law, and the owners are protected in the exclusive enjoyment of their improvements. In Pennsylvania, the proprietors of the land have the exclusive ownership of the soil to low water, arising out of a usage similar to ours, adopted as the common law of the state by the courts, independent of the statute. In that and some other states, the great rivers flowing through them, which are not tide waters, and according to the definitions of the English common law are not navigable and public, but private rivers, where the owners of the banks would have a right to the soil to the channel, are regarded as navigable public rivers, and the same law applied to them as to the tide waters. Indeed it is doubtful if any of the states recognize the doctrines of the common law of England on the subject of rivers and other waters precisely as they are held there. Those doctrines grew out of a state of things and of usages different from ours, and cannot be literally applied to circumstances so materially different as those found to exist in the United States.

After a careful examination of all the authorities applicable to this case that are accessible to me, and upon full reflection, I am of opinion that there is satisfactory evidence that the doctrines of the common law of England in regard to the shores of tide rivers have been materially changed in this state, by a common usage recognized as lawful by the legislature and • by the courts; and that, by the comnion law of New Jersey, the owners of land bounding on such rivers have an absolute and -exclusive right to wharf out and otherwise reclaim and improve the adjoining shore to the ordinary low water line, and to the use of the same for fisheries ■and all other lawful purposes not obstructing the navigation. This right is incompatible with and excludes the right of ownership, which in England exists in the crown, and an encroachment upon which is there called a pourpresture, or enclosure of the king’s demesne, and which, it is there held, he may seize and abate, or license and rent at his pleasure, and which, if it existed here, would be vested in the state. The state, having no right or title to the premises on which the trespass is alleged to have been committed, conveyed no title therein to Nathaniel Budd, or to those claiming under him, by force of the act of November 8, 1836'. Consequently the judgment of the Supreme Court ought to be affirmed.

Potts, J. Gough brought an action against Mary Bell for an alleged trespass, in breaking and entering his close in Van Vorsfc township, Hudson county. The plea was liberum tenementum, and the judgment for the plaintiff, to review which this writ of error is brought.

The plaintiff below was a tenant of the devisees of John B. Coles, deceased, occupying a farm owned by them of over 400 acres, bounded easterly on Hudson’s river. Mary Bell claims title to a tract of 53J acres, lying east of and directly in front of said farm, and between ordinary high and low water mark on the river. The alleged trespass was committed on this last mentioned tract, and the question is, whether Mary Bell has maintained her plea. *

1. She sets up an adverse possession, as against the Coles title, to so much of this tract as was occupied by Nathaniel Budd, commencing anterior to 1802; but, in the view I take of the case, it is unnecessary to consider this part of it.

2. She sets up-a title derived from the East Jersey proprietors, through Elisha Boudinot and others. As to this, it has been settled by the Supreme Court of this state, in Arnold v. Mundy, and by the Supreme Court of the United States, in Martin v. Waddell, that since the surrender to queen Anne the proprietors had no title to the soil covered by tide waters in any of the navigable rivers or arms of the sea within the limits of the state: it is no longer an open question, and this, therefore, cannot avail her.

3. She claims under a grant from the slate. On the 8th November, 1836, the legislature passed an act vesting in Nathaniel Budd, (whose title she has) his heirs and assigns for ever, all the right and title of the state to this tract, describing it as “ a certain tract of land situate along the beach on the west side of the North, or Hudson's river, and running into the same between Powles hook and Hoboken, in the county of Bergen, &e., containing 53-J acres, which was conveyed to the said Nathaniel Budd by Elisha Boudiuot, by deed dated January 2, 1801.”

Against this title the defendant in error insists—

1. That the act is void for misrepresentation appearing on its face. But I can find no such evidence, either in the language of the act itself or in the cause, as I think could war-rent the court in sustaining this objection, even if we had the power to do so in this action on such a ground, which is, to say the least, questionable.

2. It is insisted that the Coles title to this 400 aere farm, derived from the Kennedys and the trustees of the freeholders of Bergen, embraces within its bounds this 53|- acre tract by description, and was acquired anterior to the surrender to queen Anne. I have carefully examined the descriptions contained in the several deeds under which the Messrs. Coles claim, and the maps which have been submitted with them, and have attentively considered the arguments of counsel, and the result is that I am satisfied — 1. That the Kennedy title went by description no farther than the line of the Hudson river. 2. That the grant from Philip Carteret and council to the town and freeholders of Bergen was limited to the shore line. And 3. Even if it was not, that the release from the trustees of the freeholders to the Coles was only of the Kennedy tract, and embraced nothing more than was embraced by description in the Kennedy deed.

3. But it is insisted, in the third place, that admitting the Coles title is bounded by description to the river line, .yet that by established custom and usage, a local common law in New .Jersey, riparian proprietors on tide waters tal?e to the low water mark; that in this particular the rule of. the ancient common law has been changed ; and therefore, that this 53|- acres, lying between ordinary high and low water mark in front of this farm on the river, is embraced within it. Of this opinion was a majority of the court below, and if this be so it is fatal to the plea of the plaintiff in error; for, as the case now presents itself, it is this: the defendant in error is the tenant of a farm bounded on the Hudson river, where the tide ebbs and flows. In front of him, and between high and low water mark, is a cove embracing an extensive mud flat, and of this flat the above mentioned parcel is claimed by the plaintiff in error under a grant from the state.

It is admitted that by the common law of England the strict legal title to the shores of rivers where the tide ebbs and flows, that is the land between ordinary high and low water mark, was in the crown. It is admitted that when our ancestors came from Englaud to this colony they brought so much of this common law with them as was suited to their circumstances. They did not consider it imposed on them as a bur-then; they claimed it as a right. The colonial legislature, in 1678, enacted, “That no man within this province shall be deprived of the benefit of the common law, and a free process therein, as of right belongs to every free English subject.” But it is equally true that some portions of the common law of England were purely local in their character ; other portions again respected only the royal prerogatives and revenues; and other portions still, such as right accruing by custom and prescription, never were received here as common law. Ackerman v. Shelp, 3 Halst. 130. And from the language of the 22d section of the constitution of 1776, it is clear that this was the view of the framers of that instrument; for it says, “that the common law of England, as well as so much of the statute law as have been heretofore practised in this colony, shall still remain in force until they shall be altered by a future legislature, such parís only excepted as are repugnant to the rights and privileges contained in this charter

I think it may be safely assumed that when we separated from the old government by the act of revolution, for that act effected the separation, and not the treaty of 1783, nothing remained of British laws and institutions but such as we voluntarily chose to gather up from the wreck, and use in the reconstruction of our new institutions; and if we did not readopt the common or statute law of England as a whole, but only such parts of it as had been in use and were adapted to or in consonance with our new system, it does not follow as a matter of course that all, either of the rights and prerogatives of the British crown or the powers of the British parliament, became vested in the state government or in the legislature. All power, upon the dissolution of government, originally vested in the people of the state, as the sovereigns of the country; and if this be so, these powers are to be sought for now in the institutions and laws of the people themselves. The state government possesses (he rights and powers granted to it by the people in the constitution in terms or by necessary implication only. The rights not so granted remain in the people themselves. And it would seem to follow, that whatever right or title the legislature, as representing the people, has in the lands between high and low water mark on the sea shore and the shores of tide rivers must be a right or title vested in it by the constitution which created it, or which, in the very nature of things and of necessity, is inherent in that department of the government.

The question then recurs, where is the legal title to lands between high and low water mark on tide rivers in New Jersey '? Is it in the government or in the riparian owner ? At common law it was in the crown, and not in the owner of the ripa. Before the Revolution the common law rule was undoubiedly in force. The title was in the crown, not in the proprietors, or those who held under them. How is it since the Revolution? The common law, as theretofore practised, was readopted. And it seems a lair inference that this readoption vested the title in the state government; that at least prima fade it is there, in the absence of evidence to the contrary, subject, however, to any modification or limitation which may be found in or fairly deduced from the exception contained in the 22d section of the constitution.

But the argument is, that the common law, in this respect, has undergone .a change since the Revolution, in this state. It is affirmed that the riparian owner has always claimed and exercised ownership over this species of property; that numerous docks and wharves have been erected without legislative authority ; that extensive flats have been reclaimed and banked in as meadow lands, and the titles to them recognised by numerous laws; that the right of private fishery has been admitted and regulated by the state; and from these premises, and an alleged prevalent public opinion, in the early period of the government particularly, it' is argued that there is a common custom or usage on the subject established of sufficient duration and universality to amount to a local common law.

I am unable to reach this conclusion. The weight of authority is against it. It has been distinctly held, that in this state the rule of the common law remains unaltered; that high water mark constitutes the boundary between the proprietary and the sovereign titles. Arnold v. Mundy, 1 Halst. 1; Martin v. Waddell, 16 Peters 367. And see Pollard’s Lessee v. Hagan et al., 3 How. 221. And the same doctrine was reaffirmed by the Supreme Court when this case was first before them. 1 Zab. 156. In no case in New Jersey was it seriously questioned until in the ease we are reviewing, and then with hesitation and by a divided court. Stare dedsis is a maxim of great weight where questions of property are involved. Beside the weight of judicial authority, that of legislative construction is against it. Numerous acts have been passed by the legislature, particularly in late years, authorizing riparian owners to erect docks and wharves on navigable streams opposite their lands. In 1848, Pamph. L. 217, a general act was passed authorising the owners and holders of all docks, wharves, store houses, and piers, to use, possess, repair, and keep the samé in order, provided that the act should not impair the legal rights of any other persons or authorize any hindrance to the navigation. And in 1851, Pamph. L. 335, another general act was passed authorizing the owners of lands upon tide waters to build wharves in front of the same. This course of legislation is certainly in conflict with the proposition sought to be maintained, for the grant of a right to use land presupposes title in the grantor; and I think it by no means clearly appears that the title to reclaimed meadow lands or the established rights of private fishery in New Jersey rest upon any such foundation.

4. But the auestion still remains, did Nathaniel Budd take any title to these premises under the act in question ? The grant from the stale, this act of 1836, was nothing more or less than a mere release to Budd of such right and title as the state had to this land under water, and could rightfully grant ¿o a private person for a private use. The preamble of the act says, “ it hath been suggested that the state of New Jersey hath some title thereto, and by reason thereof doubts have arisen concerning the title of said Nathaniel Budd,” and it passes all the right and title ol‘ the state to him “in as full and ample manner as the state of New Jersey hath right and title to convey and grant the same.” Pamph. L. 1836, 14. This phraseology is carefully guarded, and leaves the question before us open for discussion by its very terms.

Assuming, then, that so much of the ancient common law as was suited to our new institutions was readopted by the constitution of 1776, and that the strict legal title to lands between high and low water mark vested in the state, it is equally clear that the long established and essential rights of persons and of property, as defined and settled by that law, were also readopted and remain in force. Among these are—

1. The rights of riparian owners. The defendant in error stands here clothed with all the rights which, at common law, belong to such an owner. These rights are as sacred and inviolable as any others. They are appurtenances to the estate, constitute part of its intrinsic value, and can no more be taken from him contrary to law than any other portion of his property. lie has a right, though his strict legal title is bounded by the high water line, to the water, as appurtenant to the upland ; a right of towing on the banks; of landing, lading, and unlading; a right of way to the shore; a right to draw seines upon the upland, and of erecting fishing huts. Angell on Tide Waters 171. He cannot be cut off from the water against his consent by any extraneous addition to his upland. 2 Whart. 538. No supervening right over any part of this space can be exercised or maintained without his consent. He has the right of fishery, of ferry, and every other which is properly appendant to the owner of the soil; and he holds every one of these rights by as sacred a tenure as he holds the land from which they emanate. Bowman’s devisees v. Waltham, 2 McLean’s C. C. R. 376. And Justice McLean, in this case, adds, “The state cannot, directly or indirectly, divest him of any one of these rights, except by the constitutional exercise of the power to appropriate private property for public purposes; and any act of the state short of such an appropriation, which attempts to transfer any of these rights to another without the consent of the proprietor, is inoperative and void, and can afford no justification to the grantee against an action of trespass.”

In Harrison v. Sterret, 4 Harris & McHenry 540, it was held that placing sand, earth, and stone in the waters of the Petapsco contiguous to the plaintiff’s shore, so as to make dry land, and deprive him of the privilege of sailing with scows and boats to and from his land, was actionable. And there are abundant authorities, both in England and in this country, to show that any infringement of the riparian right to the use of the water for all purposes draws to it a remedial right of redress or compensation ; a right modified, it is true, in some instances where the doctrines of the civil law have been invoked, as in Louisiana, Illinois, and Tennessee. Bath River Navigation Co. v. Willis, 2 Railway and Canal cases 7; Ball v. Herbert, 3 Tenn. Rep. 253 ; Middleton v. Pritchard, 3 Scammon’s (Ill.) Rep. 520; Memphis v. Overton, 3 Yerger’s (Tenn.) Rep. 390.

And while the riparian owner has at common law a right to the use of the water that flows to his shore, the public have no right to the use of his shore for any purpose, except in eases of storm or distress. If, says Lord Hale, A. hath the ripa or bank of the port, the king may not grant a liberty to unlade upon that bank or ripa without his consent, unless custom hath made the liberty thereof free to all, as in many places it is, for that would be to prejudice the private interests of A., which may not be taken from him without his consent. Hargrave’s L. T. 73; Blundell v. Catterall, 5 Barn. & Ald. 91 ; Ball v. Slack, 2 Whart. 530; Chess v. Manown, 3 Watts 219; Cooper v. Smith, 9 Serg. & Rawle 26; Post v. Pearsall, 22 1 Wend. 425; 20 Wend. 111.

These doctrines, I apprehend, rest upon sound and safe principles, and interpose an impassable barrier behind which the citizen may find protection against the power of the state itself. For surely it cannot for a moment be maintained that it was ever the intention of the framers of the constitution, even by implication, to vest in the state, or in the legislature, as the law making power of the state, such a title to the strip of land, the shore between high and low water mark, along the banks of all the navigable rivers and streams in the state, as lhat it could grant, sell, or dispose of it to any private person for private use, so as to destroy every pre-existing right of the riparian owner, and interpose new owners between him and the navigable waters. Such a doctrine would certainly be received with equal surprise and consternation. As the first step in the argument to maintain it, it would be necessary to assume the absolute omnipotence of the legislature, except so far as its powers are limited by express constitutional restraints. And if this be so, and those limitations are not broad enough to protect' the common law rights of the riparian owner, what protection would the plea of usage or custom or a local common law afford him ?

In most of our sister states these rights of the riparian owner have been carefully regarded, if not extended. In Massachusetts such owners, by a colonial ordinance, passed in 1641, and a usage which probably sprung up under it, for the ordinance itself was- subsequently repealed, are entitled to the flats opposite to their laud to the channel; and in Pennsylvania, lauds on the navigable rivers between high and low water mark are held not to be within the jurisdiction of the land office, so as to be the subject of grant by warrant, survey, and patent from the proprietary. Freytag v. Powell, 1 Whart. 536. It is no uncommon thing to find springs between high and low water along the banks of the Susquehanna, and though such appendages are often matters of convenience at some seasons of the year to those who live near, yet the state never sold land below high water mark. Commonwealth v. Fisher, 1 Pa. Rep. 467. And see 2 Zab. 468—9, 3 Kent's Corn. 428, &o. In some cases, it is true, these rights have been denied. There are such cases in New York, of which Gould v The Hudson Railroad Co. is one, Monthly Law Rep., June 1852; but the current of authority in the states is the other way.

2. But, besides this, there is another class of rights which may be considered in a question of this kind, to wit, the public rights of navigation and fishery. This 53|- acre tract is part of a public navigable river, every part of which is impressed with the public servitude. Chief Justice Kirkpatrick, in Arnold v. Mundy, speaking of the title to this kind of property-, says, “ the wisdom of the common law has placed it in the hands of the sovereign power, to be held, protected, and regulated for the common use and benefit” — “though this title, sttictly speaking, is in the sovereign, ymt the use is common to all the people.” And again, “ the enjoyment of it is a natural right, which cannot be infringed or taken away, unless by arbitrary power.” And he adds, “If this be so, it will be asked, how does it happen that in England, whose polity in this respect we are now examining, we find not ouly navigable rivers, but also arms of the sea, ports, harbors, .aud certain portions of the main sea itself upon the coasts, and all the fisheries appertaining to them, in the hands of individuals? That.the fact is so cannot be controverted; but how it become so is not so easy at this period satisfactorily to show. So far as it depends on royal grants, however, it seems pretty clear that it has always been considered an encroachment upon the common rights-of the people.” And after stating the doctrine, that the legal -title to this common property, subject to the restrictions he mentions, vested at the Revolution in the people, and passed to the legislature, as their representatives, he continues, “ that is nothing more than what is called the jus regium, the right of regulating, improving, and securing for the common benefit of every individual citizen ; ” and “ the sovereign power itself, therefore, cannot, consistently with the law of nature and the constitution of a well ordered society, make a direct and absolute grant of the waters of the státe, divesting all the citizens of their common right.”

Although the law making power was granted to the legislature by the constitution of 1776 in broad and general terms, yet it was a power to make laws for the regulation and protection, not the destruction of private and public rights. It had the power of eminent domain, but its exercise was coupled with limitations; it could neither take private property for private use, nor even for public use, without providing for compensation to the owner. It was not only restrained in this respect by the constitution of the United States, but by the principles of natural justice. “ The familiar principle, that private property shall not be taken for public use without just compensa!ion, is a dictate of natural justice; it is founded in natural law; it has its origin back of political institutions.” 2 Zab. 302. Again. The right of eminent domain of all the states over the tide w'aters, and the soil under them, within their territorial jurisdiction, is undoubtedly subject, to a limited extent, to the power of the general government of the United States. It cannot be exercised in a manner repugnant to the constitution of the United States in the following particulars; 1. The power to regulate commerce ; 2. The provision that the citizens of each state shall be entitled to all the privileges of citizens of the several states. Angell on Tide Waters 59. The tide waters of all public rivers belong to the public for the purposes of navigation, not only to the people who are represented by the legislature of a particular state but to the people of all the states.

These being well established general principles, it only remains to see what their effect is upon the questions involved in this case. It seems very clear that all the rights which the Messrs. Coles had, as riparian owners, before the passage of the act of 1836, remain unaffected by it. It seems equally clear that the jus publicum, with all its incidents, remains — for the legislature had no power to dispose of the one or the other class of rights to a private person for private use. And if neither any right of the riparian owner, nor any right of the public to navigate these waters, passed to Mr. Budd by the act, there is nothing in the grant that could be the subject of individual property or enjoyment.

But it does not follow that property of this description cannot be improved for purposes and in a way consistent with the substantial rights of the riparian owners and the public by legislative authority. Free and convenient navigation of navigable waters being a primary object, the legislature of a state may promote it by artificial means, and render the water more useful to the public for navigable purposes, even though the privilege of fishing of the riparian owners may be thus impaired. Angell on Tide Waters 83 ; Hart v. Hill, 1 Whart. 136. The legislature may authorize flats in tide rivers to be raised by artificial means.above high water; may authorize the shore to be filled up and banked out to the deep water, provided it be done with the consent of the riparian owners, or with compensation to them, and upon the overruling principle of the public good. And so the legislature may authorize the adjoining proprietors to build wharves and docks in front of their lands on the shore between high and low water mark, and, subject to certain limitations, even beyond it, as they have in fact done; because the exercise of this power is expressly for the promotion, not the destruction of the public right of navigation; and this has been the principle, I apprehend, which has 'governed the legislature in the numerous grants made for this purpose, and in passing the acts of 1848 and 1851, a principle derived from the common law, and sactioned by judicial as well as legislative authority. But it has no power to divest the rights of shore owners or the public over this description of property by grants to private persons for private use, because this would be to cut off the riparian owner from the shore and take away from him rights appurtenant to his estate, and perhaps sacrifice public rights for the promotion of mere private interests. Nor can it grant such a right to others than the shore owners, even for public purposes, without their consent or compensation to them.

If a shore owner, without such a grant from the state, erects docks or wharves in front of his land, if no public rights are infringed, if the navigation and the fishery are not impaired, though at common law it would, technically, be a pourpresture, it would not be a nuisance, nor indictable as such. It is believed there has been no case in this state in which a proceeding has been had, either by information of intrusion at common law or by information at the suit of the attorney general in equity, to abate such a pourpresture, or suffer it to remain and be arrented. All owners of docks and wharves erected prior to 1848 are now protected from such a procedure by the act of that year; and since then, doubtless, all that have been erected have had the license of the state or are within the act of 1851.

These principles see.m clear of difficulty ; they treat the rights of riparian owners as property rights, to be guarded and protected, while they preserve the common law rule in reference to the rights of the public and the state, leaving to the legislature the power of regulating, improving, and securing the property they hold in trust for the common benefit of the people, and to the individual citizen his private rights. And leaving it there, it is left where it is safe to leave it.

The result is, that though the legal title of the Messrs. Coles, under whom the defendant in error holds, extends only to the line of ordinary high water mark, yet they possess rights, as riparian owners in the adjacent shore and waters, of which they cannot be divested without their consent, or compensation ; that the land between high and low water mark belongs to the state for the use and benefit of the public, but that this title cannot be granted to a private person fora private use; that the act of 1836 is inoperative and void, and that, consequently, as no title passed from the state to those under whom the plaintiff in error claims, she has failed to maintain her plea, and the judgment below must be affirmed.

Nevius, J. This is an action of trespass quare clausum fregit, by the defendant in error against the plaintiff in error. ■The defendant below pleaded liberum tenementum, and, on the trial at the Hudson circuit, the parties agreed upon a case embodying the testimony, and that the same should be submitted to the court at bar for final decision. Upon the argument before that court, a majority of the judges determined that the title to the locus in quo was not in the defendant below. To review this decision, the present writ of error is brought. As a full statement of the facts out of which the questions here presented arise has already been published, (2 Zab. 441) it is unnecessary to repeat them.

The land upon which the alleged trespass was committed lies between what was formerly high and low water mark on Hudson river, or rather on the "margin of a small bay or cove of that river, in the county of Hudson. It was formerly the shore .of the bay, but, in 1836, had been reclaimed from the overflow or influx of the tide water by the Messrs. Coles, who were at that time, and • had been before, and still are, the undisputed owners of the upland adjacent thereto, and under whom the plaintiff claims the right to bring this action.

The burthen of proof upon the pleadings and issue joined in this case devolved upon the plaintiff in error, and if she has failed to establish a legal and valid title to the lands in question, the judgment of this court must be in affirmance of the judgment of the court below. I proceed, then, to an examination of the title which she has presented as the foundation of her claim.

She first claims title to the premises under a survey from the board of proprietors of East Jersey to Elisha Boudinot for 53J acres of land, including the lands in question, dated the ,21st of May, 1803, and has shown that whatever was vested in Boudinot by virtue of that survey, by subsequent conveyances became vested in her.

Her second ground of claim is under an alleged grant from the state of New Jersey, of the 8th of November, 1836, which is a grant of all the right the state then had in and to all the land described in the survey to Boudinot.

In regard to the first, I think, with the court below, that this survey to Boudinot conveyed no title or interest to the lands in dispute. It is admitted by the parties that this survey covers what in legal parlance is called the shore of the river or cove, that is, that portion of land which lies between the lines of high and low water mark at ordinary tides.

In common parlance, the word shore is understood to mean the line that separates the tide water from the land about it, wherever that line may be, and in whatever stage of the tide. But taking, as I now mean to do, the word shore in its legal and technical sense, as indicating the lands adjacent to navigable waters, where the tide flows and reflows, which at high tides are submerged and at low tides are bare, 1 repeat, that the proprietors had no such property in the shore as would entitle them to convey it to a private person for private purposes separate from the adjoining upland, which had previously been conveyed to another. But even if any such right was ever vested in them, they had before conveyed it to the town and freeholders of Bergen by their charter of 1668.

The grant to the Duke of York, and from him to Carteret and Berkely, and from them to the twenty-four proprietors, invested the grantees with the absolute title to all lands included within the limits of the grant (which could be held in severalty by private individuals, without encroachment upon public and common rights,) and also with the sovereign and governmental authority over the whole territory granted. It is proper, therefore, that we discriminate rightly between the proprietary and sovereign titles. So far as they regard dor minion and power over the soil, and property in it, the former is absolute, subject only to the power of eminent domain in the government, the latter qualified or fiduciary. The former may be parcelled out in severalty, and granted to private individuals for private purposes, the latter belongs to the nation, and were only held by the sovereign authority for the common and public use of the nation. The proprietary title extended to such property as in its nature could be severed from the public domain and devoted to private and exclusive use without any interference or infringement of public and common right, such as all the soil above tide waters. The sovereign title extended to all such property as could be used and enjoyed in common without conflicting with private rights, such as the shores and beds of the sea, arms of the sea, bays, or lakes, where the tides ebb and flow. By the common law of England at the time of the grant to the Duke of York, the title to lauds which could be held in severalty by the subject adjacent to navigable waters was limited by high water mark, and all the soil which lay beyond that was said to be vested in the crown, as trustee, for the common use of the nation.

This, according to the opinion of C. J. Kirkpatrick in Arnold v. Mundy, “is that species of common property which the king himself could not appropriate to private use, nor grant in severalty to any one else.” The right of the crown to this property is not very appropriately termed a title, but is more properly a power over it, to keep it open and free for common use; or if approved by fencing, embankment, or wharfing, to see that it is done at such places and in such mode as best to promote public interest and convenience, and not prejudice either. It isa power or right to protect such lands for the common welfare,‘and not a right of freehold in the soil, which cannot lawfully be appropriated to private use at the will or caprice of the sovereign power. But it may be said, and the fact is so, that in England much of this species of property is found in the hands of private individuals, who hold it in severalty and to the exclusion of the public, and who claim either by express grant from the crown, or by prescription, which is founded on the presumption of such grant. The learned judge, to whom I have just referred, remarks, in the case above cited, that at this day it is not easy to explain how this became so, but supposed it originated in the usurpation of arbitrary monarchs or powerful barons before the principles of legitimate civil government were as well understood and settled as at the present day. But if such practice prevails at this time in England, or has been exercised by the government of this state at any time, it can only be sustained on the hypothesis that such grants are rather promotive of the public interest than prejudicial to it. I entirely concur in the opinion of C. J. Kirkpatrick when ho, says, “that Charles II., when he took possession of this country in his sovereign capacity, acquired the right to grant the soil of the country to settlers and citizens, extending to high water mark on the coast of the sea, and navigable rivers where the tide ebbs and flows, and no farther; and that he could not convert the shores, which were common property, into private property.

Rut I am also of opinion that he had the right, by virtue of his sovereign prerogative, to confer upon a private individual, who was a riparian owner of lands bordering on such waters, the right or privilege of excluding tide waters, by means of embankments, docks, wharves, or other contrivances, to reclaim drowned lauds otherwise useless, to improve and increase the facilities of navigation, to protect ports and harbors, or to promoie trade and commerce, so far as the same could be done without injury to the public and common right.

I am further of opinion that, by the true principles of the English common law, adopted in this state by the constitution of 1776, and adapted to the condition and requirements of our government, the owner of a freehold estate- on the margin of tide water navigation has rights appurtenant to his freehold in the adjoining shore (if not exclusive and private) paramount to those of any other citizen ; that he has the legal common law right of ferry at all times of tide, which brings him to the water's edge, wherever it may for the time be, the right of drawing seines, of passing at pleasure from his soil to the water, or from the water to his soil or freehold, of landing from or embarking in his boats or vessels at the water’s edge at all times of tide; and finally, as appurtenant to his riparian ownership, the right to exclude the influx of the tide by the erection of embankments, docks, or wharves, provided be does not impair or interfere with the common right of navigation or fishery or any other common right; that be cannot be deprived of these rights either by the prerogative of the crown or by parliamentary or legislative power, except it be upon the doctrine of eminent domain, when he is to be compensated by the government for the rights of which he is divested for pub-lie or private good. Neither the crown of Great Britain, by virtue of its royal prerogative, nor the lords proprietors of New Jersey before the Revolution, by virtue of their grant, nor the people of the state, by their legislature since the Revolution, could deprive the riparian owner of any of these rights, by the principles of the common law, without just compensation'. And if at any time, in England or in this state, the riparian owner has been deprived of these natural and incidental rights annexed to his freehold, either by the authority of royal prerogative, or parliamentary authority, or by legislative authority, it has been in violation of common law, unless compensation has been provided for the encroachment. Such I take to be the doctrine of the common law, as it is the rule of common sense and common justice. And wherever or whenever the crown or parliament of Great Britain have made a grant of shore lands to private individuals for private purposes, without the consent of the riparian owner and without compensation, it has been in violation of his rights and against the law of the land, and may be likened to other abuses or violations of common rights, which at different periods are to be found in the history of• the English government, as the granting of monopolies in trade to favorites of the crown.

My conclusion therefore is, that the proprietors of New Jersey, by virtue of the grant from Charles II., never had such a title in the shores of navigable waters as could lawfully be conveyed by them in severalty to private persons, and divest the riparian owner of those rights I have mentioned as incident to his lands.

But even admitting that originally they had such right, yet in the present case their survey to Boudinot in 1803 was inoperative and void, not only in consequence of the surrender of the government by them, in 1702, which divested them of all control over property before held in trust for the common and public benefit, but also by reason of their charter to the town and freeholders of Bergen, in 1668, while both the proprietary and sovereign titles were vested in them. This charter was made by Berkely and Carteret, the immediate grantees of the Duke of York, and contains 11,520 English acres, the eastern boundary of which is described to be “by Hudson’s river,” and the grant in express terms includes “ all rivers, ponds, creeks, islands, inlets, bays, and all other appurtenances to the same belonging.” This grant embraces the land in question, aud, as it was made to a political corporation, it may be construed to convey all the right and title, whether of soil or government, in and to the territory included in the description, subject to such reservation and limitations as are expressed in the grant. In that description Harsimus bay, with its adjacent shores covering the disputed premises, are most clearly included. Berkely and Carteret, then, having by this charter parted with all their right and interest in these lands, in vvhatever capacity they held it, either as proprietors or sovereigns, the board of proprietors could not acquire from them any title to these lands, and of course could convey none.

It follows, therefore, that the survey to Boudinot in 1803 is wholly inoperative and void, and cannot, support the title set up by the defendant below.

I now consider the second ground upon which she relies in support of her plea. It is an act of the legislature of New Jersey, passed November, 1836, entitled “An act vesting in Nathaniel Budd all the right and title of the state of New Jersey to a tract of land under water in the Hudson river, in the county of Bergen, and state of New Jersey.” The preamble recites, that it had been represented to the legislature that Budd became seized and possessed of 53|- acres of land at Harsimus, by virtue of a deed from E. Boudinot, which was surveyed to him, and located by special order of the board of proprietors, and that it had been suggested that the state of New Jersey had some title thereto — It was therefore enacted, that, for good considerations, and one dollar paid to the treasurer of the state, all the right and title of the state to a certain tract of land, situate along the beach on the west side of Hudson river, and running into the same between Powles hook and Hoboken, containing 53J acres, and which was conveyed to Budd by Boudinot, in 1804, be, and the same are hereby granted to Budd, his heirs and assigns for ever, and shall for ever be vested in him, his heirs and assigns, as fully as the state has right and title to grant the same, reserving the right of jurisdiction and sovereignty.

The defendant below traced her title also to this grant.

Without stopping to inquire whether Nathaniel Budd was actually seized and possessed of these lands at the time the act was passed by virtue of his deed from Boudinot, as is recited in the preamble of the act, or whether said lands were then covered with water or had been reclaimed, or whether the grant was obtained by any fraudulent practices upon the legislature, I am of opinion that the state had no such right or title to the soil as would invest in Budd an absolute fee simple title, not only to the exclusion of all public use, but to the exclusion of all rights and appurtenances incident to the title of. the adjacent upland.

1st. Because the king of .Great Britain, when he took possession of the country, acquired no such right to shore lands as would warrant his grant in severalty to a private person for private and exclusive purposes ; that his grantee acquired no such title, that the board of proprietors derived no such title by the grant to them ; that after the Revolution, the people of the state, in their sovereign capacity exercised through their legislature, acquired no such right or title, either in shore lands or beds of the sea, bays, or navigable rivers, as would justify or maintain a grant in severalty for private purposes to the prejudice of public and common right, or the natural, incidental, and appurtenant rights of the riparian owner. The grant, therefore, contained in this act of assembly, whatever it may be, (if a grant at all) and however obtained, is in my opinion invalid, and cannot be the basis to support the plea of liberum tenementum.

2d. Because, if upon common law principles or upon tue principles which naturally, rationally, and necessarily appertain to legitimate sovereign authority, the state would have acquired upon the Revolution the lawful power to grant such lands in severalty, yet in these particular lands that right had before been vested by a recognized conveyance to the town and freeholders of Bergen, and consequently was not vested in the state or the people of the state. The only power the state acquired over them by the Revolution was the power of eminent domain, to be exercised for public, and not private purposes, and then (by the constitution) upon just compensation to every individual whose lawful and established rights were impaired or destroyed. The charier of 1668 debarred the state from making a special grant of these lands to a private person for private purposes, and the defendant below has not maintained her plea on this title.

Much has been said, in the argument of this cause and by the court below in determining the case, on the subject of riparian title. On the one side, it is contended that the common law of England gives to the owner of land bordering on and bounded by “a navigable river or bay, widi an ebbing and flowing tide, a title to the soil only hr high water mark •” and such is undoubtedly the rule of the common law, founded upon some principle, for all below it in general is necessary for public use or convenience, and the shore itself, without being reclaimed from the overflow of the tide, is not in its nature adapted wholly to private and exclusive occupancy. On the other side, it is insisted that we have in this state a local common law, which extends the title to the soil in a riparian owner to low water mark on navig-able tide water streams. It is difficult at this day to ascertain with any satisfactory certainty at what time and upon what principle the practice originated in New Jersey of conveying lands by documentary title on the margin of tide waters to low water mark. But my own personal knowledge, as well as my information derived from reliable sources, bas satisfied my mind that such a practice has very generally prevailed throughout the state, and probably before the Revolution. If it has any legitimate origin, it is founded probably on the grants and concessions issued by the lords proprietors, in 1664, to emigrants, adventurers, and settlers. By these grants, convenient proportions of land for highways, streets, churches, forts, wharves, bays, and harbors were granted or promised as inducements to immigration and settlement. Upon these concessions, undoubtedly, was founded the practice, which from time out of mind prevailed here, of taking the lands of private persons for public highways, without making compensation to the owners; and it is not improbable that the practice of riparian owners occupying the shores to low water mark, whether by the terms of their documentary title they were limited there or not, has arisen from the same source.

But whatever may be the general practice on this subject, or whatever the extent of documentary title to lands on the margin of tide waters, or in whatever mode such practice may have originated, I am nevertheless disposed to repudiate the idea of a local common law contrary to the principle of the English common law, and to adopt the latter, with those qualifications I have mentioned, and which I believe, upon every principle of common justice, common sense, and common right, appertain to it, and are perfectly consistent, not only with the nature and elementary principles of our own government, but with the rights of the citizen and all free government.

From the views I have above expressed, and the reason I have assigned for them, I think the following propositions are to be adduced as the necessary results:

1st. That the survey frotu the board of proprietors to Elisha Boudinot, in 1803, and his deed to Nathaniel Budd, in 1804, conveyed no title to the lands in question, and that the défendant’s claim'on this ground must fail.

2d. That the grant from the state of New Jersey, by act of 8th of November, 1836, conferred no several and exclusive right to the soil of the lands described therein, and upon this ground the defendant’s claim is invalid.

3d. That while the common law of New Jersey limits the title to the soil in the riparian owner to high water mark' on tide waters, yet such owner has, as appurtenant to his title, a right to reclaim the shore in front of his lands, by embankments, wharves, or docks, if he can do so without impairing or injuring the public and common rights of the community.'

4th. That neither the king of Great Britain, before his grant to the Duke of York, nor the board of proprietors, before the Revolution, nor the people of the state of New Jersey, by their legislature since the Revolution,-had or have now the right to make a grant of shore lands in front of a riparian owner to a private person for private purposes, without the consent of such owner, or making him compensation.

I think the judgment of the court below must be affirmed.

Ogden, J. The points in this cause, upon which the arguments were made before the court, having been so fully elaborated in the opinions already delivered, I should have simply concurred in an affirmance of the judgment, if I had been prepared to adopt all the propositions which have been laid down by either of my learned brethren. Having reached a like result with them, as to the disposition of this cause, 1 will accompany my vote with as few remarks as is consistent with the view that I have taken of the questions.

The action was originally brought, in the court for the trial of small causes by the defendant in error, who was a lessee of John B. Coles and others, heirs and devisees of John B. Coles, deceased, for an alleged trespass in cutting and carrying away grass which grew upon premises in his possession; and upon a plea of title it was removed to, and after issue joined was tried in, the Supreme Court, where judgment passed in favor of the plaintiff.

The locus in quo of the alleged trespass was a part of some fast land, which had been made by the Messrs. Coles, upon the shore of a cove in the Hudson river, in front of and adjoining their farm bordering upon the river. This shore was tilled up and raised by them above the flow of the tide before the eighth of November, one thousand eight hundred and thirty-six.

I am of opinion that the plaintiff in error failed upon the trial below to support her plea of liberum tenementum, and that the judgment of the Supreme Court should be affirmed.

First. She established no title to the locus in quo through the survey and location of fifty-three and a half acres made by the board of proprietors of East Jersey to Elisha Boudinot, on the twenty-first day of May, one thousand eight hundred and three.

Although she had regularly deduced her claim to the rights supposed to have been created by that survey, yet it being now well established, by the Supreme Court of this state and that of the United States, that the right of property in the soil covered by tide waters, in all arms of the sea and navigable rivers within this state, is vested in the state as a sovereign . right subject to its dominion, the board of proprietors, in the year one thousand eight hundred and three, had no property in the subject-matter of that survey which could pass by their grant.

Secondly. The act of the legislature of this state, passed on the eighth of November, one thousaud eight hundred and thirty-six, which is a grant to Nathaniel Budd, under whom the defendant holds and his assigns, of all the right and title of the state to the fifty-three and a half acres embraced in the Boudinot survey and location, cannot support the plea.

By the common law -of England, the proprietor of lands bordering upon navigable tide waters carries his title to ordinary high water mark, and the soil beyond that line is vested exclusively in the crown, for the common benefit of the subjects, and is liable to parliamentary grants. Proprietors of such lands in New Jersey, from a very early period in her history, have enjoyed, for their individual benefit and in private ownership, privileges upon the shore adverse to the exercise of the sovereignty of the supreme power, excepting when employed for the protection of the common and paramount rights of navigation and of eminent domain.

The origin of such infringement upon the rules of the common law of England has not been satisfactorily traced ; but its existence has repeatedly been recognized in legislative enactments, and its enjoyment has been uninterruptedly claimed. One exercise by such proprietor of a right not supported by the doctrine of the common law of England regards exclusive fishery in front of his land.

Another, is an'appropriation of the shore in front of his premises (that is the space between high and low water lines) to his own benefit, by filling in and raising ground above the operation of the water, and likewise in constructing docks and piers and wharves.

Such improvements, occasioning no serious inconvenience to the enjoyment of the common rights of the citizens, but on the other hand, by aiding in the navigation of the public waters, increase the value of property within the state, have been sanctioned and encouraged by legislative action. Through long usage, the privilege of making these improvements has become a local custom in this state, and most valuable private rights in property have grown up and ripened in its exercise.

In the case before the court, the lessors of Gough, who were the undisputed owners of land washed by the tide waters of the Hudson, had reclaimed the loous in quo by filling with earth upon the mud flat of the shore in front of their land, and thus raising the surface above the dominion of ordinary tides, before the act of the legislature was passed upon which Mrs. Bell has rested this branch of her defence.

That statute appears to have embraced no public object, but it was enacted for the mere private benefit of Mr, Budd and his assigns.

If the lessors of Gongh had the privilege, under the local custom of New Jersey, of reclaiming the shore in front of their farm, without injuring the rights of navigation or invading the sovereignty of the state (which I think they had) they have, by the application of their labor and capital upon that shore, acquired a vested right in the place reclaimed ; and Mrs. Bell,' as the assignee of Budd, has obtained, by the said act of the legislature, no title to the improvement thus made by the Messrs. Coles.

I have reached this result upon the facts and the law of the case, without assuming, either that by the common law, as generally understood, an exclusive right to the use of the shores of navigable tide waters is an appurtenant to the adjoining land freed from the control of the sovereign power, excepting in matters of eminent domain, or that the legislature of New Jersey are restrained by such common law from granting for private purposes, in-the exercise of its wisdom and discretion, the soil below high water mark in beds of navigable tide streams, or from regulating the manner and-extent of wharfing out into such navigable waters.

Judge Coenelisoxt. There is so much diversity of opinion among the judges of this court upon the legal points raised in this case, and their practical importance .is so great, that it seems almost necessary that every judge should express his views- definitely on each point in writing, unless he concurs entirely with some one of the opinions presented. As I do not agree fully with any, I give my own views on each point.

The first question is, as to the power of the legislature to make the grant to Budd. If there was no such power, the defendant could have no title, as the title depends upon the grant. That the people of the state, through their legislature, have no power to grant title to mud flats like these, because below high or low water mark, was to me a strange position, more especially as there is no pretence of limitation by the constitution of the state or of the United States. My idea of our government is, that all power resides in the people; that the legislature is the people exercising that power under the restrictions of the constitution. The power of this court, and all courts, is only to determine what is the law, as enacted by the legislature, and what are the constitutional limits of their power. We are not to decide whether a law is just or wise, or that, in the government of a well ordered people, some other restrictions ought not, by the constitution, to have been put upon the legislature.

As a legislator, I might not have been willing to vote for the grant to Budd, but as a judge, I must regard a law that I may think improper. As a member of the constitutional convention, I perhaps might have said the legislature shall not have the power to obstruct the channel of navigable streams, but I never would have restrained them from appropriating marshes and mud flats, not navigable for useful purposes, because covered by water at high or low tide. I should have thought the attempt very unwise, and that the matter in such case should be left in the power and discretion of the legislature.

The people of New Jersey, in 1776, as in 1844 confided all power to the legislature without such restriction. I know of no principle on which we, because judges of the Court of Errors, can, speculating philosophically on the proper power of government, interline in the constitution such restrictions on the legislative power as we think ought to exist in a well ordered government. Nor do I think that prudence, justice or public policy (had we the power) would dictate the inserting a restriction which would prevent the improvements of the meadows, marshes, and mud flats that surround our state. Many of these, as in this case, consist of hundreds of acres, too large to he converted into wharves or roads, or to other uses of a public nature, and must be made private property or ever remain unimproved.

Why is not this a good grant? This grant is for soil under' navigable water. Is the title in the individual owning the upland ? Does his deed cover it? It is not pretended. Who, then, has the title? Unquestionably the state. The title is in her. May she not grant it? Where is the limit to her authority? The grant is no violation of the constitution; the people have entered into no compact by which they are restrained from parting with that which is theirs. We have no right to say the grant is void because it does not comport with our notions of justice. If we declare the grant void, it must be upon some sound and settled principle of law.

In Calder v. Bull, 3 Dall. 386, the court say, “ If any act of congress or of the legislature of a state violate the constitutional provision, it is unquestionably void. If, on the other hand, the legislature of the Union, or of any member of the Union, shall pass a law within the general scope of the constitutional powers, the court cannot pronounce it to be void, merely because it is in their judgment contrary to natural justice.

1 think, therefore from principle, the legislature have this power; and if I had not arrived at this conclusion from a common sense view of the case, I should have felt bound by the authority of the opinions of the judges of the Supreme Court of the United States in the case of Martin v. Waddell, and even by that of C. J. Kirkpatrick, in the case of Arnold v. Mundy, 1 Halst. 78, who acknowledges the power of the legislature, putting in an arbitrary exception, without authority or principle, in the case of the navigable waters of the state only.

A second question is, does the right of the shore owners extend to high or low water mark ? On this point the English Jaw, which we have adopted, is clear and settled. It has been recognised by all, or nearly all the states, and which decisions we consider of much authority; and I hold the law in Flew Jersey to be, that the shore owner goes to high water mark only.

Another point is, did not Coles acquire a right by filling in against his lands by the acquiescent permission of the state? If he did, and had acquired title, the grant of the state, which can give, and only did give the state’s title, did not give Budd title to the place where the grass grew and was cut, or to the land filled in at the time of making the grant.

Although contrary to my first view, I have come to the conclusion that the reasoning of the Chief Justice is right on this point, and that the acquiescence by the people of the state for a century in such appropriation of the public domain has created a rule of law that we must notice, and that where a shore owner has filled in on the shore opposite his lands with the acquiescence of the state, he owns it.

On this ground, and on this only, I am of opinion that the judgment must be affirmed.

Judge Valentine. This was originally an action of trespass, brought in the Hudson Circuit by Edward Gough against Mary Bell, for breaking and entering plaintiff’s close, and cutting and carrying away the grass there growing. The defendant pleaded title to the land in question. A verdict was taken for the plaintiff' in the circuit upon a case stated, and after-wards judgment was ordered for the plaintiff in the Supreme Court.

It is now brought here by a writ of error from the Supreme Court. It was fully and ably argued in this court at the last term, but, on account of the important principles involved, it was held under advisement until the present term.-

The court now unanimously affirm the judgment of the court below. But there is so much diversity of opinion among the judges of this court, that its judgment scarcely seems to settle any of the legal principles involved ; and their practical importance being very great, it appears desirable that each member should give his opinion in writing.

It is admitted on both sides that the land where the alleged trespass was committed was below what was originally high water mark on the bay or cove commonly called Horsimus cove, opposite the city of New York.

The controversy was in reality between the rights of a riparian owner on tide water, who had docked out or filled up below high water mark, and the grantee of the state below aud up to that line, and the cause would have been settled exclusively upon principles applicable to parties thus placed had Edward Gough, defendant in error, been willing to rest bis cause upon the right of the riparian owner; but he attempted to overthrow the title set up by Mary Bell, plaintiff in error, by the production of the following paper titles, together with a claim as riparian owner:

1. Copy of patent of charter granted to the town aud freeholders of Bergen, by Governor Carteret and council, under Carteret aud Berkely, the lords proprietors, dated September 22, 1668.

This grant begins at the north end thereof, at a place called Mordanis’ meadow, lying upon the west side of Hudson’s river ; thence running westwardly till it comes to Hackensack river; thence along said Hackensack river to Arthur Cull bay, opposite Staten island; thence eastwardly along Kill Van Cull to a neck of land called Constable’s point or Constable’s houok; and from thence to run up northward, all along the bay up into Hudson’s river, till it comes to Mordanis’ meadow aforesaid: and the grant further describes the whole tract as bounded at the north end by land belonging to Capt. Nicholas Verlett and Mr. Samuel Edsall, 071 the east side by Hudson’s river, and the south end by Kill Van Cull, &c., “ the whole, both upland and meadows aud waist land, containing, according to the survey, 11,520 acres English measure, which said limits and bounds, together with all rivers, ponds, creeks, islands, iulets, bays, fishing, hawking, hunting, and all other appurtenances whatsoever thereunto belonging and appertaining, the half part of the gold and silver mines, and the royalties of the lords proprietors only excepted, to continue and remain within the jurisdiction, corporation, or township of the said town of Bergen from the day of the date hereof and for ever, the said corporation submitting. themselves to the authority of the lords proprietors and the government of this province, to be holden by them, &c.” The ninth clause in said patent reads as follows: “ that all lands and meadows that are appropriated and patented by particular persons before the day of the date of these presents shall continue and remain unto them without any alteration, unless the proprietors thereof will give their consent to the contraryIn confirmation, &c., sealed and dated the 22d day of September, 1668.

In consequence of colonial discord, the governor and council surrendered their right of government to the crown, which was accepted by queen Anne on the 17th of April, 1702.

Afterwards Anne, queen of England, granted another patent to the town of Bergen, by which the power and authority of the town was increased and enlarged, and the inhabitants were incorporated by thé name of the trustees of the freeholders of the township of Bergen. The description of the bounds of the township is again contained in this patent substantially as in the original patent. This patent or charter was confirmed by an act of the colonial legislature, passed at Burlington, February 2, 1713, and signed by Governor Hunter, July 16, 1713.

2. A deed of conveyance from the trustees of the freeholders of the township of Bergen to John B. Coles, dated February 4, 1804, for the consideration of $11,285 for part of the land contained in the aforesaid patent, “ beginning at a post standing in the bounds or on the line between Paulus hook and Horsimus, near the side of the waters of the cove between Paulus hook and Horsimus; and from thence to run north seventy degrees fifty-four minutes west about fifty-two chains, to a stake standing on the northwest side of the road leading from Prior’s mills over Horsimus to Paulus book, between upland and meadow, which stake bears to the middle chimney of Nathaniel Budd’s house, north sixty degrees fifteen minutes east, also to the north chimney of the house of. the widow Yanderhoff, north seventy-two degrees west; thence to run to the waters of the mill creek, otherwise called Horsimus creek, with a course of N. 85° W.; from thence along the said mill creek the several courses thereof as it runs, to the westerly end of a ditch, that was formerly cut to answer the purposes of a fence from said Horsimus creek to a small creek that runs out of the bay or cove between Horsimus and Hoboken creek ; then along the said ditch to the said small creek; thence down along the said creek, as it runs, to the mouth thereof in the said cove between Horsimus and Hoboken ; then down along cove into Hudson’s river or York bay; then down said river or bay, as the same runs, till it strikes the division line in said river between Horsimus and Paulus hook; then westerly along said line to the place or point of beginning, together,” <fec., but specially excepting and reserving, as included within the limits and survey above described, the sundry parcels of land which are specially saved, excepted, reserved, and marked on the' map of the commissioners appointed by an act of the legislature of the then province of New Jersey to make a general and particular partition and division of the common lands of the township of Bergen. Reference, &c.

3. Deed of John Kennedy and Robert Kennedy (by their attorney, Robert Watts,) to John B. Coles, dated February 4, 1804, with the power of attorney to Watts, for the consideration of |20,000, conveyed “all that tract of land lying in the township of Bergen upon Hudson’s river over against New York, being that tract of land formerly called Horsimus, beginning at the fence at the northwest end of the causeway which leads from Paulus hook to Horsimus, and running from thence along the fence, as it now stands, north seventy-nine degrees west, three chains thirty-three links; thence north eighty-seven degrees thirty minutes west, four chains; thence north sixty degrees west, thirty-seven chains, to a small creek in the marsh which runs into the great creek or mill creek; thence running down the same small creek to the great, creek, and up the stream of the said great or mill creek, as it runs, to the bridge and causeway that crosses the same, which is nearly thirty-seven chains upon a straight line, and from the said bridge continuing up the stream of the said great or mill creek, as it runs, fourteen chains and a half, to a small gut that leads into a small creek which falls into Hudson’s river; thence along the said gut, south eighty degrees east, three chains, to a bridge that crosses the gut; thence along the same course one chain, to the small creek aforesaid, which runs into Hudson’s river; thence down Hudson’s river, as it runs, to a fence near the beginning corner, which fence runs from the beginning corner aforesaid, south sixty-three degrees thirty minutes east, ten chains; and thence, north thirty-five degrees ' east, to Hudson’s river, which tract of land, within the bounds aforesaid, contains four hundred and three acres strict measure.” This deed and the deed from the trustees of the freeholders of Bergen is understood to be for the same premises, some dispute having before then arisen between the trustees and the Kennedys in relation to the title of the same, and is numbered lot No. 169 in the report of the commissioners who made partition of the common lands as aforesaid.

4. The following report of commissioners :

On the 7th day of December, 1763, the colonial legislature of New Jersey passed an act appointing Jacob Spicer, Charles Clinton, and others commissioners to make partition of the common lands of the township of Bergen among the several owners thereof, in proportion to their equitable rights. These commissioners made report (with Jonathan Hampton and George Clinton, two competent surveyors,) the 18th day of January, A. D. 1764. They proceeded to survey the township of Bergen, “ beginning at the northeasternmost corner thereof at a chesnut tree standing on the easterly end of a small narrow high ridge of land, marked, &c., and the said tree, on a course from it south forty-nine degrees east, is thirty-five links distant from the northeasterly side of Mordanis’ meadow; said tree is fifty links from a small run of water, &o., and runs from said tree (1), north forty-nine degrees west, ninety-seven chains, by a line of marked trees, to a stake standing by the easternmost side of a small brook 1|- chains from its head ; (2) down said creek, as it runs, to Hackensack river; (3) along the Hackensack southwesterly till it comes to Newark or Arthur Cull bay; (4) southwesterly along said bay to Kill Van Cull, opposite Staten island ; (5) easterly along Kill Van Cull to New York bay; (6) northerly along New York bay to the mouth of Hudson’s river; (7) northerly up along Hudson’s river to the southeasterumost point of Mordanis’ meadow aforesaid; (8) northerly along the edge of said Mordanis’ meadow or marsh, where the same joins the upland, till it comes to bear south forty-nine degrees east from the aforesaid chesnut tree; (9) north forty-nine degrees west thirty-five links, to the said chesnut tree, the place of beginning. Having thus run out and ascertained the general boundary and limits of said township, proceeded to divide the same.” Lot No. 172 in said division begins at a white-oak tree standing at the edge of the bay, and runs first along Kill Van Cull to the edge of a meadow, &e.

Lot No. 28 begins at a stake standing on the bank of York bay, and runs first along the edge of the hay to a stake between two cedars.

No. 29 begins at the above stake, and runs, &e.

All the lots which are adjoining the water call for monuments on the bank, and none of their lines run expressly to low water mark, excepting two small lots within the hounds of No. 169 (the Coles lot), which two small lots the commissioners describe severally by metes and bounds; and after their description add to each of them, as appurtenant thereto, all the land in front to low water mark.

The counsel for defendant in error contended that Governor Carteret and council, at the time they granted the patent and charter to the town and freeholders of Bergen, passed the absolute power and right of government, and full authority to convey the land under water in these rivers and bays where the tide ebbs and flows; that the patent and charter were granted to a municipal corporation, giving them judicial authority and the absolute right of government, and the fee simple of the land contained in its boundary, together with all the soil covered with water where the tide ebbs and flows, including Horsimus bay, part of which is now in controversy in this suit.' This'they contend is manifest from the language of the patent and charter aforesaid. The also contend that, by a careful inspection of the report of the commissioners appointed to make partition of the common lands of the township of Bergen aforesaid, it will be manifest they considered the boundary contained in the patent extended to low water mark. As proof of this, they cited the description given by the commissioners of the two small lots contained in their report, within the general boundary of No. 169 of their report, as extending to low water mark (No. 169'being the Coles tract.)

The grant of king Charles II. to the Duke of York, his brother, dated the 20th day of March, 1664, did not only include the soil and inland streams and ordinary appurtenances, but also all waters, harbors, rivers, fishing, and all the royalties and advantages thereunto belonging, and the entire country, with the civil and political power of government, as fully and amply as he had power to grant them. Probably this grant is more extensive than those under which a number of the other colonists held.

On the 23d day of June, 1664, the Duke of York granted and conveyed to Lord Berkely and Sir George Carteret all New Jersey, including the royalties and power of civil government, as fully and amply, and in the same condition, in the bays, rivers, and arms of the sea, and the soil under water, as belonged to him under the original grant, from'king Charles.

Therefore, in the hands of Berkely and Carteret, this dominion and propriety was an incident to the regal authority, and was held by them as a prerogative right associated with the power of government, which power they continued to exercise from the date of their grant until their surrender of the prerogative right of government to the crown, which was accepted by Anne, queen of England, on the 17th of April, 1702. It is not seriously controverted at this day that.Governor Carteret and council had not. the right to make special grants to individuals for laud below the ordinary high water mark in those rivers and arms.of the sea where the tide ebbs and flows, from the date of the grant from the Duke of York to Berkely and Carteret, until the surrender of the government to queen Anne.

But T cannot find language in the patent from Governor Carteret and council to the freeholders of Bergen, which will sustain the construction put upon it by the counsel for defendant in error. Much stress and importance is given to the words contained in the last course of the boundary line in the patent, viz. “ up into Hudson’s river till it comes to Mordanis’ meadow aforesaid, so that the whole tract of upland and meadow shall contain,” &o. Mordanis’ meadow, the beginning point of the survey, and Constable’s point or Constable’s houok, the last point of the survey, are evidently both above ordinary high water mark, from which latter point the patent “ runs up northwardly all along the bay up into Hudson’s river till it comes to Mordanis’ meadow aforesaid.”

A line has length but not breadth, therefore by running a line into the river, or along the low water mark, it would not hit or reach Mordanis’ meadow, the beginning point called for ; but taking it, for granted that the neck of land called Constable’s point or Constable’s houek is at ordinary high water mark, then by running along that line Mordanis’ meadow would be readied, but by diverging from that line into the river it could not. The wording of the last line of the patent is explained by the nature of the case, and makes it very clear to my mind to mean a line to high water mark.

The beginning point of the deed from the trustees of the freeholders of Bergen is described as a post standing in the bounds or on the line between Paulus hook and Horsimus, near the side of the waters of the cove between Paulus hook and Horsimus, and runs, &c., “ to the cove between Horsimus and Hoboken ; then down along said cove into Hudson’s river or York bay; then down said river or bay, as the same runs, till it strikes the division line in said river between Horsimus and Paulus hook; then westerly along said line to the beginning, together,” &c. This deed is from the trustees of the freeholders of Bergen. They show no title to land under water in the cove or Hudson’s river. If they were only riparian owners, their deed conveys no land beyond ordinary high water mark. But by the description of this deed, according to the testimony of Robert C. Bacot, a surveyor, “ if the lines are run into Hudson’s river, the last course cannot intersect the line between. Jersey City and Horsimus (that line runs nearly north and south, or nearly parallel with the course of the river,) if you run the last course along the shore of the cove or ordinary high water mark it will intersect the line.” But this deed must be absurd without those lines, which appear to be at variance with each other, can be made to accord.

The deed from Johu Kennedy and Robert Kennedy to John B. Coles does not purport to extend at any one point beyond high water mark. The commissioners appointed as aforesaid, who made partition of the common lands of Bergen, evidently understood the line along the bay and Hudson river to be a high water line. They were very particular in the description of the beginning point of their survey, describing it as a chesnut tree standing thirty-five links from Mordanis’ meadow: from said tree they run the several old lines of the patent till they come to the mouth of Hudson’s river ; “ thence (7) northerly up along Hudson’s river to the southernmost point of Mordanis’ meadow ; thence (8) northerly along the edge of said Mordanis’ meadow or marsh where the same joins the upland, till their line comes to bear south forty-nine degrees east from the aforesaid chesuut tree; thence (9) north forty-nine degrees west, thirty-five links, to the said chesuut tree or place of beginning, having thus run out and ascertained the general bounds and limits, proceeded to divide.” &c. The commissioners, in running their eighth line along the edge of the meadow, when they come opposite the beginning point, find themselves twenty-three feet southeasterly from it. Hence they say they ran (9) north forty-nine degrees west, twenty-three feet, or thirty-five links, to the beginning point of the survey.

Now it cannot be believed that the commissioners would be thus particular in describing the eighth and ninth lines of their survey, and yet run their seventh line into Hudson’s river, or even along low water mark, and when they get opposite the southernmost point of Mordanis’ meadow arbitrarily call their position the southernmost point of Mordanis’ meadow, when it is evident the meadow does not run down to low water mark. The shore between high and low water mark is not meadow. If they had run their line along low water mark, when they diverged to the meadow they would undoubtedly have made mention of that fact, the same as in their ninth and short line.

These facts taken together, I think, abundantly prove that the commissioners ran their lines along the ordinary high water mark, and considered that the boundary. It may be asked why the commissioners did add and assign to the two small lots all the land in front of each of them to low water mark, if they considered the ordinary high water mark the boundary. The following reservations will be found in the ninth article of the patent and charter from Carteret and council to the freeholders of Bergen, viz. “ all land and meadows that are appropriated and patented by particular persons before the day of the date of these presents shall continue and remaiii unto them without any alteration, unless the proprietors thereof will give their consent to the contrary,” by which it appears that special grants had been made to individuals previous to the date of the patent to the freeholders of Bergen. Previous to the surrender of the government of New Jersey by Governor Carteret and council to the crown, in 1702, they undoubtedly had the power and authority to make special grants to individuals for land below ordinary high water mark. We have not the date of the grant for either of these two small lots; they must have been of those contained in the reservation mentioned in the ninth article of the patent, and the grant may have extended to low water mark. Hence the report of the commissioners in' accordance with the grant. The grantees evidently did not claim as riparian owners.

I do not consider it material, in the settlement of this cause, whether Governor Carteret and council granted full power of government to the town and freeholders of Bergen or not; hut, as it was insisted upon by counsel, it may be well to examine it. In the latter clause of the first article of said patent and charter, we find the following reservations: “ the half part of gold and silver mynes and the royalty of the lords proprietors only excepted.” And then the following clause is immediately added: “to continue and remain within the jurisdiction, corporation, or town of the said town of Bergen from the day of the date hereof and for ever, they, the said corporation, submitting themselves to the authority of the lords proprietors and the government of this province.” This language does not appear compatible with the grant of sovereign power to a corporation. It is extremely doubtful whether Governor Carteret and council had the power and authority to sever the government of New Jersey, and grant absolute power of government to a municipal corporation. But to prevent any improper construction to the grant, the grantors expressly reserve all the regalia and royalties, together with half the gold and silver mines, with a declaration, that the said corporation should submit themselves to the authority of the lords proprietors and the government of this province; which language is so incompatible with the idea of a grant of full power of government, that I consider comment unnecessary.

The defendant in error, having failed in this branch of title, what right had he as riparian owner ?

In New Jersey, the title of owners of land bounded by the sea, or by navigable rivers and arms of the sea, extends to ordinary high water mark only.. .The title to the shore between ordinary high and low water mark and the land under water belongs to the state. High water mark, therefore, is the boundary between the proprietary and sovereign titles in New Jersey, which doctrine is well settled in the case of Arnold v. Mundy, 1 Halst. 1; Martin v. Waddell, 16 Peters 367; also reported in 3 Harr. 495; 3 Kent 427.

The riparian owner has the right to the alluvial deposit, if it is imperceptibly made, because it cannot be identified and separated from his soil. But he has no right to extend and fix his own boundary at pleasure against the interest of the state or her grantee, and convert any amount of property to his own use. The state cannot be divested of her property in that mode, and be made subject to the will and avarice of riparian owners. A contrary doctrine would allow the laud owner the right to fill up to any extent in front of his bank, and at an enormous expense convert any amount of property rightfully belonging to the state to his own use. And should the state afterwards require this property for public use, she would have to pay for the labor and expense thus bestowed upon it, even if such labor and expense should render the property thus reclaimed of less value for public úse.

There are three modes by which a sovereign may acquire title to a country — by conquest, discovery, or purchase. Ours was acquired by discovery, according to the principles of international law, as then understood by the civilized powers of Europe. The Indian tribes of America were regarded as mere temporary occupants of the soil, and the absolute right of property and dominion were held to belong to the European nation by which any particular portion of the country was first discovered. Whatever clemency or forbearance may have been exercised towards those Indians, either from humanity or policy, yet the territory they occupied was disposed of by the governments of Europe at their pleasure, as if it had been found without inhabitants. The grant to the Duke of York was not for land won by the sword, nor the government and laws he was authorized to establish intended for a conquered people, but was to be in conformity to the laws, customs, and manners of the English government. It is manifest he brought with him all the notions and prejudices incident to the common law customs of that country.

At the discovery of this country, according to the prerogative of the king of England, he held all the waste land and territory for his private benefit; and the sea, the arms of the sea, and all the navigable rivers, and the soil under those waters, as trustee for the public. He bad the right to build wharves, docks, forts, light houses, and fixtures of every description, for the public good and convenience. He had the right to appropriate the whole shore of those waters for that purpose, if necessary, or such part thereof as he might think proper and needful. Did he lose that right by a grant of the land ? After a grant of land on a navigable river, measures may be taken to improve the navigation, though productive of remote and consequential damages to the banks. 2 Hilliard’s American Law 90 ; 3 Kent 432, note b.

Then the sale of laud to private individuals does not impair the right of the state in those improvements ; it remains valid for ever, as limitation or non user does not impair the right of the state. At the Revolution, all those sovereign powers became vested in the people, where it now remains (excepting those surrendered to the general government of the United States), and where it will of necessity remain, until the people in their sovereign power shall decree otherwise.

The state of New Jersey, by virtue of her sovereign power then, had the right to build wharves, docks, and other works of a public nature on the shores of those waters up to high water mark in front of the riparian owner, and he had no right (previous to the passage of the act of March 18, 1851, Pamph. L. 335,) to anticipate the public, and fill out in front of his land and construct those works.

A man’s water rights are held by as sacred a tenure as he holds the land from which they emanate. But the question is, what were the rights of a riparian owner, on those rivers and arms of the sea where the tide ebbs and flows, as against the rights of the state previous to the passage of the act of March 18, 1851 ? If a large number of vessels should be riding at anchor, or be afloat'On the public water in front of the land of a riparian owner, he would have no right to order them off because he wanted to sail or land his own vessel there or moor her at anchor in front of his land ; their rights are equal to his. As soon as he steps over his boundary he has no individual rights. His rights there are in common with other citizens ; he has no right to order or regulate the movement of vessels on the public water in front of his land.

The learned counsel for defendant in error appealed to the sympathy of the court on account of the large amount of money that had been expended in reclaiming the land in controversy, and the rebuilding long dock in front of those lands; but it will not do for the court to allow their sympathy to pervert their judgment because large sums of money have been expended under misapprehension of title, or because any other large amount of property may be put in jeopardy by reason of a correct judgment of the court. Thestatewill be slow .to divest the owner of the shore of lands he may have reclaimed in front of his bank even for agricultural purposes, but more especially for building wharves, docks, and store houses for the public convenience, as well as for individual gain and enjoyment. But that does not disprove her right to do so, if she thinks proper. The court cannot interpose their authority ; that power is in the people, and they will in due time, through their legislature, correct all these matters.

Iu this view of the case, the defendant in error has shown only a possessory title.

Edward Gough, the defendant in error, being in possession of the land on which the alleged trespass was committed, it became incumbent upon Mary Bell, the plaintiff in error, to establish her title to said laud; in support of which she relies first upon a survey, made to Elisha Boudinot by the proprietors of East New Jersey for 5S¡¡ acres, dated on the 21st May, 1803, and title deduced from thence through a regular chain of mesne conveyances to herself.

This survey lying entirely below the ordinary high water mark in the Hudson river or Horsimus cove (opening into the river) where the tide ebbs and flows, the proprietors had no right to make the survey, and their grant conveyed no title to Elisha Boudinot to the shore between ordinary high and lo-vv water mark nor the soil under the water.

The plaintiff in error, in further support of her title, relies upon a grant from the state of New Jersey, by virtue of an act of the legislature, passed on the 8th "of November, 1836, (Pamph. L. 13) and title thence deduced through a regular chain of title to herself.

Two questions present themselves in deciding this branch of her title.

1st. The power of the legislature to make such grant.

2d. Whether title to the premises in dispute passed to Nathaniel Budd under the act of November 8, 1836.

The ancient rule of the common law. is, that the title of owners of land bounded by the sea or other navigable waters where the tide ebbs and flows extends to ordinary high water mark only.

The shore between ordinary high and low water mark and the soil under the water belongs to the sovereign, as trustee for the public. In England the crown, and in this country the people, have the absolute pi’oprietary interest in the same, though it may, by grant or prescription, become private property. 3 Kent. 427.

It would seem clear that in every government, whatever may be its form, there must .be vested some ultimate dominion. If the legislature of this state may dispose of the property of each individual member of the community for public good, it would seem to be no greater exercise of power to dispose of the common rights of all the people for the same end. The legislature is restrained by constitutional provisions, and its powers abridged by fundamental laws. But there is no constitutional restrictions imposed upon the legislature in making those grants; in making them, the legislature acts as the representatives of the people, and in their name. The act of the legislature is the act of the people, not that of á mere trustee holding the legal title for public good.

I think there can be no doubt but the legislature has the right and power to grant and convey (for individual enjoyment) the laud between ordinary high and low water mark and the soil under the water in the arms of the sea and those navigable rivers where the tide ebbs and flows, unless such grant will impair the compact with the United States regulating commerce or the trade and navigation between the states. If the grant is for private purposes, it loses its regalia and sovereignty, by which it is suri’ounded in the hands of the state, and the title of the grantee is put on an equal footing with other individual titles. And the grantee would have no right to convert and change the nature of the soil to such purposes as would materially injure the rights of adjoining riparian owners.

The only question, then, to settle is, did the premises in dispute pass to Nathaniel Bndd under the act of November 8, 1836 ?

The tide of said act purports to be “ An act vesting in Nathaniel Budd all the right and title of the state of New Jersey to a certain tract of land under water in the Hudson river, in the county of Bergen and state of New Jersey.” From which it would appear the legislature intended to convey only such land as was at that time under water or below the ordinary flow of the tide. As further evidence of that fact, part of the first section of said act read as follows, viz. “all the right and title of the state of New Jersey to a certain tract of land situate along the beach on the west side of the North river, or Hudson’s river, and running into the same between Paul us hook and Hoboken, in the county of Bergen in the state of New Jersey, containing 53J acres, which was conveyed to the said Nathaniel Budd by Elisha Boudinot by deed,” &c. If the provisions of the act had been such as to grant and convey to Nathaniel Budd, his heirs and assigns for ever, 53J- acres of land, agreeably to a conveyance from Elisha Boudinot to Nathaniel Budd, by deed bearing date, &e., his, Budd’s, grant from the legislature would have enclosed the land in question, and Mary Bell, the plaintiff in error, would have been entitled to judgment in her favor. But the testimony abundantly proves that, previous to the passage of the act of November 8, 1836, the land in controversy had been reclaimed, and the beach on the west side of Hudson’s river (by manual labor) had receded from its original location. Yet as the act of 8th of November, 1836, makes the beach a boundary, (from the language of the act) it must be the beach as it then was, not as it had been at the date of the deed from Elisha Boudinot to Nathaniel Budd. Although the beach had been recently altered, it was before the grant from the state to Budd, and of such a character as to control the boundary.

I am therefore of the opinion that the act of the 8th of November, 1836, did not convey to Nathaniel Budd the title to the land from which the flow of the tide had been excluded by improvements previous to its passage.

Therefore the judgment below must be affirmed.

For affirmance — Elmer, Nevius, Potts, Ogden, Schenck, CORNELISON, ARROWSMITH, VALENTINE, and WILLS — 8

For reversal — None.

Judgment affirmed.

Cited in Cobb v. Davenport, 3 Vr. 380; Assoc. of Jersey Co. v. May., &c., Jersey City, 4 Hal. Ch. 724; Del. & Rar. Can. Co. v. Bar. & Del. Bay R. R. Co., 1 C. E. Gr. 366; M. Can. & Bkg. Co. v. Cent. R. R. Co., 1 C. E. Gr. 431; Keyport Sbt. Co. v. Farm. Tr. Co., 3 C. E. Gr. 23; Stevens v. Newark & Pat. R. R. Co., 5 C. E. Gr. 135; Atty Genl. v. Del. & B. B. R. R., 12 C. E. Gr. 8.

* The commissioners were Aaron Ogden, Alexander C. McWhorter, William S. Pennington, James Parker, and Lewis Oondict.

1 * The other commissioners were John Butherford, Theodore Freiinghuyseo, James Parker, and Lucius Q,. 0. Elmer.