22 N.J.L. 441 | N.J. | 1850
To an action of trespass for breaking and entering the plaintiff’s close, and cutting and carring away the grass there growing, the defendant pleaded liberum tenementum, upon which plea issue was joined.
Upon this issue, it became incumbent upon the defendant to establish her title to the locus in quo. It was not necessary, however, that she should prove title to the whole close described in the declaration. The plea of liberum tenementum is construed to mean, not that the whole close described in the declaration is the soil and freehold of the defendant, but merely that part of the close in which the alleged trespass was committed. And the rule is the same, whether the close is described in the declaration by name or by metes and bounds; and the record of a judgment upon such issue, in favor of the defendant, will be evidence, not that the whole close, but that part of it only where the trespass was committed, is his freehold.
The inquiry, then, upon the issue in this cause is, not whether the defendant has shown title to the entire close described in the declaration, which she obviously has not done, but whether she has shown title to the particular place where the trespass is shown to have been committed.
I. In support of her claim of title, the defendant relies— first, upon a survey of 53£ acres, strict measure, made by the proprietors of East Jersey to Elisha Boudinot, on the 21st of May, 1803, and title thence deduced through a chain of mesne conveyances to herself.
In the survey, the tract is described.as “all that tract of unappropriated land situate along the' beach on the west side of Hudson river, and running into the same between Powles Hook and Hoboken, and adjoining land of Robert. Kennedy.” Upon the evidence, it appears that the entire survey, at the time of the location, was below ordinary high water mark in a cove or bay, commonly called Harsimus bay, opening into the Hudson river between Jersey City and Hoboken. The locus in quo, at the time of the location of the survey, was between ordinary high and low water mark; but at the time of the alleged trespass it had been filled up, .and raised above the flow of the tide, by the owners of the land adjoining the shore, and was occupied by the plaintiff as meadow or grass land.
This evidence shows no title in the defendant. The right of property in the soil covered by tide waters, in all navigable rivers and arms of the sea within the limits of the state of New Jersey is vested in the state. At the date of the survey to Boudinot there was no title in the grantors, to the premises therein described, which could pass by the grant. This can
II. The defendant further, in support of her claim of title,’ relies upon a title derived from the state of New Jersey, under and by virtue of an act of the legislature,' passed on the 8th of November, 1836. Pamph. Laws 13.
In deciding the effect of this act upon the rights of the parties, it will be necessary to consider—
1. The extent of the title of the state to the soil of navigable rivers, and its limits.
2. The power of the legislature to convey that title.
3. Whether, in fact, title to the premises in dispute passed to Nathaniel Budd under the act of 1836.
1. The ancient rule of the common law is, that the title of owners of land bounded by the sea, or by navigable- rivers where the tide ebbs and flows, extends to ordinary high water mark only. The title to the shore between ordinary high and low water mark, as well as the title to the soil under the water, belongs, prima facie, to the sovereign. Hale de Jure Maris, part 1, cap. 4 ; case of the River Banne, Davies 152 ; Woolrich on Waters 20; 3 Kent Com. (2d ed.) 427, 431 ; Arnold v. Mundy, 1 Halst. 67; Martin v. Waddell, 16 Peters, 367; Pollard’s lessee v Hagan, 3 Howard 212.
This title, which by the common law of England is vested in the king, upon the revolution, became vested in the people of the state. With this modification, growing out of the form of government, the rule of the common law prevails here, except so far as it has been modified by statute or by local common law. In this state, the rule of the common law, as to the limits of the right, remains unaltered. High water mark constitutes the boundary between the proprietary aud the sovereign titles. This point is fully settled by the cases already cited. Arnold v. Mundy, 1 Halst. 1; Martin v. Waddell, 16 Peters 367.
It has been suggested, with truth, that the question, as to
In Arnold v. Mundy, the premises in dispute are stated to have been below ordinary low water mark, although one of the counsel, in argument, represented the fact differently. 1 Halst. 2, 44. And in Martin v. Waddell, the special verdict states that the premises in dispute are situated beneath the waters of the Raritan river and bay, where the tide ebbs and flows, but whether above or below low water mark, does not appear. In the argument of Pollard’s lessee v. Hagan, 3 Howard 218, counsel insisted that the decision in Martin v. Waddell did not touch the question of title to the land between high and low water mark, and that such construction of the decision would be a surprise to the people of'this state.
In Arnold v. Mundy, the question, as to the limits of the right, was fully argued, and the question came directly before the court, under a claim of the plaintiff to the possession of the premises in dispute by virtue of his possession of the adjoining land; and upon that point the Chief Justice explicitly recognised the doctrine of the common law. He said, “ that a grant of land, bounded upon a river or other water which is navigable, and where the tide does ebb and flow, extends to the edge of the water only, that is to say, to high water mark, and no farther. All pretence of possession, therefore, in this case, as being connected with and appurtenant to the adjacent land, must fail. The grant for that could extend only to high water mark, and it could, therefore, carry with it no part of the adjacent land covered with water.” I regard this case as authoritatively settling not only the title to the soil under navigable waters, but also the limits of that title upon the shore.
The title to the shore of navigable rivers, where the tide ebbs and flows between ordinary high and low water mark, being vested in the state, have the legislature a right to convey the soil so as to invest the freehold in an individual ?
It is said in the books, that the title to the soil of navigable rivers, and to the shores of the sea, and of the arms of the sea, is a branch of the king’s prerogative, of which he cannot divest himself; that the title is in him. in trust for the public;
The authorities, upon this point, are by no means uniform, though the better opinion appears to be, that, since magna oharía, the English sovereign has no power to alien the public domain.
Whatever doubts may exist in regard to the power of the king to dispose of common rights, there exists none in regard to the power of parliament. Parliament not only may, but does exercise the power of aliening the public domain, of disposing of common rights, and of converting arms of the sea, where the tide ebbs and flows, into arable laud, to the utter destruction of the common rights of navigation and fishing. Lowe v. Govett, 3 Barn. & Ad. 863 ; The King v. Montague, 4 Barn. & C. 598.
This power is attributed to the omnipotence of parliament, and it is said that no such omnipotence is vested in the legislature. The legislature, it is true, is not omnipotent in the sense in which parliament is so. It is restrained by constitutional provisions. Its powers are abridged by fundamental laws. But it would seem clear, upon principle, that in every political existence, in every organized government, whatever may be its form, there must be vested somewhere ultimate dominion, the absolute power of disposing of the property of every citizen. Iti this consists eminent domain, which is an inseparable attribute of sovereignty. This constitutes the omnipotence of parliament. If the legislature may dispose of the property of each individual citizen for the public good, it would seem to be no greater exercise of power to dispose of public property or the common rights of all the people for the same end. The objection to an alienation of the public domain by the king is, that lie is but a trustee for the community. But the legislature are not mere trustees of common rights for the people. These rights are vested in the people themselves; the legislature, in disposing of them, act as their representatives, in their name and in their stead. The act of the legislature is the act of the
The principles regulating the alienation of public property to individuals are thus clearly stated by Vattel:
“ The nation, being the sole mistress of the property in its possession, may dispose of it as she thinks ■ proper, alienate it or lawfully mortgage it. This right is a necessary consequence of the full and absolute domain. Those who think otherwise cannot allege any solid reason for their opinion, and it follows, from their principles, that no safe contract can be entered into with any nation, which attacks the foundation of all public treaties. But it is very just to say, that the nation ought to preserve its public property with great care, to make a proper use of it, and not to dispose of it but for good reasons, nor to alienate or mortgage it but for its manifest advantage or in case of a pressing necessity. This is an evident consequence of the duties a nation owes to itself. The public property is of great use, and even necessary, and it cannot dissipate it improperly without manifestly hurting and injuring itself. I speak of the public property, strictly so called, or the domain of the state. Alienating its revenues, is cutting the nerves of government. As to the property common to all the citizens, the nation does an injury to tliose who receive advantage from it, if it alienate it without necessity or without good reason. It has a right to do this, as proprietor of these possessions, but it ought to do it only in such a manner as is agreeable to the duties.of the body towards its members.”
“ The prince or the superior of the society, whatever he is, being no more t.han the administrator, and not the proprietor of the state, his authority, as sovereign or head of the nation, does not of itself give him a right to alienate or dispose of the public property, as to its substance.” “ The nation, having the free disposal of all the property belonging to it, it may convey this right to the sovereign, and consequently confer upon him that of alienating and mortgaging the public property.” Vattel, book I, c. xxi, § 257, 258, 260, 261.
In Arnold v. Mundy (1 Halst. 78), the Chief Justice said, “ The sovereign power itself cannot, consistently with the law
If, by this proposition, it is meant only to assert that a grant of all the waters of the state, to the utter destruction of the rights of navigation and fishery, would be an insufferable grievance, it is undoubtedly true. It might have been added, that such grant would have been an infringement of the constitution of the United States. But if it be intended to deny the power of the legislature, by grant, to limit common rights or to appropriate lands covered by water to individual enjoyment, to the exclusion of the public common rights of navigation or fishery, the position is too broadly stated.
The contrary doctrine is supported by numerous authorities. ‘‘ We cannot doubt,” says Chief Justice Shaw, in delivering the opinion of the Supreme Court of Massachusetts, “ that a navigable stream may cease to be such, by the appropriation of the soil under legislative authority to other purposes,” as if the legislature were to erect a solid dam across a navigable creek, and permit the laud to be wholly filled up and converted into house lots. Charlestown v. Middlesex, 3 Metc. 202 ; Wilson v. The Blackbird Creek Co., 2 Peters 245.
The view, moreover, expressed by the Chief Justice, in Arnold v. Mundy, is incompatible with very numerous acts passed by the legislature of this state. The acts which authorize the erection of dams or bridges-across navigable streams, which are found upon the statute book from a very early period, the laws authorizing the erection of piers and docks, and the laws authorizing the exclusive appropriation of oyster beds to private use, are all grants or appropriations of the waters of the state destructive to some extent of common rights.
In Martin v. Waddell, Justice Thompson, in reference to the view of the Chief Justice in Arnold v. Mundy, remarked, that “ if this be the received doctrine in New Jersey, in relation to the navigable waters of that state and the oyster fisheries, they remain common to all the citizens of New Jersey, and never can be appropriated to any private or individual
These views in relation to the title of the state to the' soil under navigable rivers below high water mark, and the power of the legislature to grant it, were expressed, as the opinion of this court, when this case was formerly before us upon a motion for a new trial. I should have deemed it unnecessary at this time to add any thing to what was then said by Justice Randolph, in whose views I concurred, but for the great importance of the questions in their influence both upon public and private rights, and the fact that they were discussed by counsel upon the argument, as open questions.
It remains to inquire, upon the evidence in this cause, whether any title to the locus in quo did or could pass to Nathaniel Budd by operation of the act of the 8th of November, 1836.
It appears, by the evidence, that the heirs of Coles, under whom the plaintiff occupied the premises in question, are the undisputed owners of the upland adjoining the cove above high water mark; that John B. Coles acquired the title by the union of two conflicting claims, in 1804, and that he and those claiming under him have since been the undisputed owners of the soil bounded by the river; that, as early as 1814 or 1815, he commenced the erection of a wharf, extending from his own land'towards the channel of the river a distance of over one thousand feet, which was completed before the passage of the law in question. He also reclaimed a part of the mud flats in front of his land lying between high and low water mark, by filling them in with earth and raising them above the level of the tide. -The spot where the grass was cut, which forms the subject of dispute, was filled in between April and November, 1836. At the time of the passage of the law, the place where the trespass was committed was not subject to the flow and reflow of the tide. No complaint is made of these erections as nuisances. There is no pretence that they were so: a useless mud flat had been reclaimed, and a wharf beneficial to commerce erected, and the question presented is, whether title to the land thus circumstanced passed
Was the title to the locus in quo in the state at the time of the passage of the act? The answer to that, question involves another, of much more moment, viz: whether the title to all improvements hitherto made in the state of Hew Jersey by the riparian proprietors, below the original high water line on tide waters, without the expressed assent of the legislature, still remains in the state, liable .to be aliened at the pleasure of the legislature; whether all wharves, store houses, dwellings, improvements of every description, made upon lands reclaimed from the tide, or below the original high water line, are held without title in the supposed owners, who are mere squatters upon the public domain. It is obvious that the inquiry affects property to an incalculable amount, and involves vast interests, which ought not to be disturbed, except upon the clearest principle. If the title to land thus reclaimed remains in the state, and if it be true, as was held by the Chief Justice in Arnold v. Mundy, that there can be no title by prescription in Hew Jersey, it is clear that no length of quiet enjoyment will perfect the title in the hands of the occupant, for lapse of time is no bar to the state.
Undoubtedly every such intrusion into the public domain may, at the common law, be relieved against, whether it amount to a nuisance or not. But it is worthy of notice that the claim of the state of Hew Jersey to land flowed by the tide is in no sense proprietary. It is strictly a sovereign right. The proprietary rights were at an early period severed from the sovereignty, and were vested in the proprietors, in whom, and in their grantees, they still remain. The only title which the state claims to the soil is by virtue of its sovereignty, for the protection of the public or common rights. But where the soil of navigable rivers is permanently appropriated without prejudice to the public rights, and where the state tacitly acquiesces in such appropriation, there would seem to be but little reason in her setting up a title as proprietor of the soil for no public use.
notwithstanding the acknowledged title of the state, in her
‘ The convention of 1783, between the state of Pennsylvania and New Jersey, for settling the jurisdiction of the Delaware, guarantees to each state the right of guarding the fisheries on the river annexed to their respective shores. The act of the 13th of June, 1799, (Pat. 416, § 9,) shows clearly that the legislature of this state understood this clause of the agreement as relating to fisheries below the head of tide water, which were the subject of private ownership and individual occupancy. ■ It subjects the person having command of any ship, vessel, or raft, who shall anchor upon-any fishing ground where shad are usually taken, and shall not immediately remove from the fishing ground, if such removal can be effected with safety, upon the request of the owner or occupier of such fishery, to a penalty of $60, to be recovered, with costs, by said owner or occupier. The right of the riparian proprietors to fisheries in the river Delaware are also clearly recognised by the act of 26th November, 1808, (Bloomfield 204), of 9th February, 1819, (Rev. Laws 65), of 15th February, 1819, (Rev. Laws 659), and by the existing law of 26th November, 1808, (Rev. Stat. 480). The tenth section of the last mentioned act provides, that if any person shall cast or lay out any seine into the river Delaware, within the jurisdiction of this state, beyond the right angle of the shore, of the river, and whet'e his line strikes the rivet' at low water mark 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 coming in, except by unavoidable accident, every person so offending, and being thereof convicted, shall forfeit and pay, for every offence, $25 to the person against whose land such trespass shall be committed.
The act of 27th December, 1826, (Rev. Stat. 479) which prohibits nonresidents from fishing in any of the bays, flats,
In the case of Den ex dem. Bispham v. Rice, which was decided in this court at September term, 1825, the principal object of the action was the recovery of a valuable fishery on the river Delaware. Part of the premises are described in the declaration as “ a fishery.” The plaintiff recovered, although this cause was tried after the decision in Arnold v. Mundy, and was earnestly litigated under the guidance of the ablest counsel, most of whom were engaged in that cause. I am not aware that a doubt was expressed as to the right or title to the fishery, in either of the parties, by reason of the paramount title of the state.
In Bennett v. Boggs (Baldw. 60), the Circuit Court of the United States recognized the existence of rights of fishery in the riparian proprietors upon the river Delaware within the jurisdiction of this state, and sustaiued the validity and constitutionality of the laws regulating and protecting them.
This right of fishery, so far at least as it regards the river Delaware, cannot rest upon any actual or supposed proprietary grant. The title of the proprietors of New Jersey never extended beyond low water mark upon the Delaware. The title of the state previous to the revolution was limited by that boundary. Bennett v. Boggs (Baldw. 60.)
Nor does it depend upon any statute law of the state con- . ferring the right. The earliest legislation upon the subject of
Nor can the claim rest on prescription. If a title by prescription can exist at all in this state, many of these fisheries are of modern origin, and cannot be prescribed for.
This claim, it is clear, is totally irreconcilable with the roles of the ancient common law touching the properly in the soil and shores of navigable rivers. In Yard v. Carman (Penn. 936), Justice Pennington expressed himself strongly against the existence of an exclusive fishery in the river Delaware, as a violation of the principles of the common law. If the claim rested for its support alone upon the principles of the common law of England, it cannot be sustained.
The right of the riparian proprietors to an exclusive right of fishery iu the tide waters of New Jersey in front of their land must rest, it is apprehended, in custom or local usage variant from the common law. There is then, I conceive unquestionably, in New Jersey a local common law affecting the title of riparian proprietors upon tide waters, and conferring upon them rights and privileges unknown to the common law of England. I use the term riparian proprietors, not in its strictly appropriate common law sense, as indicating the owner of the ripa or bank of streams not navigable, but in the sense in which it is frequently used in the books to indicate the owner of the land adjoining the shore of tide waters above the ordinary flow of the tide.
It remains to inquire whether this extension of the rights of the riparian proprietor, in derogation of the principles of the common law, is limited to the right of fishery, or whether it extends beyond it. It is a fact, not controverted, that, from a very early period in the history of the state, the riparian proprietors upon navigable streams have enjoyed the privilege or exercised the right of appropriating the shore in front of their lands between high and low water mark to their own use, by the erection of docks and wharves, and by filling in and reclaiming the ground from the dominion of the water. These improvements are found upon the shores of the Hudson and the Delaware, of the Raritan, the Passaic, and the Hacken
The practice must have originated here. It had no common law origin, nor could it have been derived from the Dutch settlers, for by the civil law which prevails in Holland the title of the sovereign extends as far as the highest winter flood. It may possibly, as was suggested upon the argument, have had its origin, as in other states, in some early ordinance or statute which is now lost. It is, perhaps, more probable that the practice originated in the fact, that all titles were derived from the proprietors; that their grants upon navigable streams, in some cases in express terms, extended to low water ium);, and were always understood to cover the entire shore. Tiiv proprietors both of East and West Jersey, by their original concessions, granted convenient portions of land for wharves and keys, as well as for streets and other public purposes. Leaving & Spicer 20, 391.
And in East Jersey these public landings and ferries were laid out and appointed, as were highways and bridges, by persons in the several counties, designated for that purpose by the legislature. In these grants, made when the sovereign and proprietary titles were united in the lords proprietors, the public wharves and docks undoubtedly had their origin.
Prior to the decision in Arnold v. Mundy, no instance, it is believed, can be found of a law passed for the mere purpose
The very numerous meadow acts, both public and private, to be found upon the statute book, are not regarded as an exception to the truth of this remark. They do not purport to authorize the riparian proprietors to appropriate to their use any part of the public domain. On the contrary, they authorize the owners of meadows to improve their own land, and for this purpose they subject a body of landholders to common regulations, and, in some instances, authorize the construction of dams across navigable streams. The great body of meadow thus to be improved lay above ordinary high water mark, or did not properly constitute the shore of navigable streams. These acts, therefore, cannot with propriety be regarded either as a recognition by the legislature of the title of the proprietors to lands lying between high and low water mark, nor, on the other hand, as a grant of a right to the exclusive appropriation of the public domain.
There are also laws creating corporations with extensive powers and conferring upon them the right, among others, of constructing piers and wharves, and otherwise occupying the laud below high water mark. Aside from these acts, which, I repeat, constitute no exception to the truth of the remark, upon a careful, examination of all the statutes, public and private, under the proprietary, the colonial, and the state governments, I find, prior to the decision in Arnold v. Mundy, no statute conferring upon the riparian proprietor the right of appropriating the shore between high and low water mark to his own use, by reclaiming the land, the erection of wharves, or in other modes.
During this period, there are found repeated recognitions of . the existence of wharves constructed by the riparian proprietor. Thus, by the preamble of the act of 22d November, 1802, it appears that Nathaniel Budd, who then occupied, the shore adjoining the premises now in dispute, had built a dock and ferry stairs on the river, and the legislature thereupon authorized the construction of a road to the dock, an'd the erection of a ferry from the dock to the city of New York. It does not
The earliest act which authorizes the riparian proprietor to build a dock in front of his land, was passed on the 28th of February, 1839. This act, as well as most others recently passed, confers upon the proprietor the right of constructing a dock or pier below low water mark, or some other power, for which legislative sanction may be deemed essential. The right of the riparian proprietor to occupy the shore in front of his land, does not appear to have originated in any legislative grant, public or private, nor has legislative sanction been deemed essential to its exercise.
On the trial of Arnold v. Mundy, the Chief Justice, in charging the jury, said, “ the intermediate space between high and low water mark may be exclusively appropriated by the owner of the adjoining land, by building thereon docks, wharves, store houses, salt pans, or other structures which exclude the reflow of the water.” This remark, it is true, was made in connection with another, which proved to be erroneous, viz: that the title of the adjacent owner extended to the water’s edge, and fluctuated with the ebb and flow of the tide. But the remark is entitled to much consideration, as exhibiting the view of that learned and experienced judge, of what the law of the state was, before his impression had been affected by a reference to foreign authorities. Indeed it does not appear that he ever changed his opinion upon the particular point in question.
In Griffith’s Annual Law Register 1292-3, (1821-2) it is said, that “ when the original proprietors of New Jersey have, by conveyance, survey, or otherwise, alienated any part of the proprietary or common land, such grantees possess the soil, whether dry land or land covered with water, (when the grants or surveys extend to or are bounded on rivers or waters) in as full right as such soil, rivers, and waters were held by the duke of York, or Berkley and Carteret, in 1663-4, subject to the jus publieum. All property in New Jersey, and
In a note to this passage, Mr. Griffith, in reference to the proprietary grants, says : “ These grants describe the premises, and convey the fee, with all the rights and privileges of the original proprietors; but lands bordering on rivers, bays, and streams of water are usually described as bounded by such river, &c., or up or down the river : and this manner of describing boundaries is common to all rivers or waters, whether fresh or tide waters. The construction, as to the extent of such boundaries, has always been the same, both as to fresh and tide water rivers, in respect of private ownership and privileges, viz: that tlie middle of the channel was the line of property between them.”
These opinions were overruled by the decision in Arnold v. Mundy, and they are not cited to show what the law is. But they are important, as showing the prevalent view of the profession in regard to the legality of the claim of the riparian proprietor to erect wharves, and to occupy the land to low water mark, without legislative authority for that purpose.
The counsel for the state of New Jersey, in arguing the case of Martin v. Waddell (16 Peters 387), said, “ the right of the ¡riparian proprietors to wharf out to the public river is a local custom in New Jersey.” He also said, that, “ by long usage, the shore fisheries have grown into private rights belonging to the ¡riparian owner •” and these facts were relied upon in support of the view adopted by the court adverse to the claim of the proprietors.
This modification of the common law exists in other states, and the right of the adjoining proprietors to appropriate the shore between high and low water mark to their exclusive use is recognised and protected. It rests in some instances upon statute, in others upon custom on local common law.
Thus in Massachusetts, by an ordinance in 1681, it was provided that the proprietor of land adjoining the sea should hold to low water mark where the tide does not ebb and flow more than one hundred rods. The ordinance was subsequently an
So in Rhode Island, the custom has been general for the adjoining proprietor to augment his land by embanking in the water, without reference to an early colonial law, which has been ascertained to exist, sanctioning the custom. Angelí 234.
In Connecticut, there is no statute abrogating the common law, yet the usage of the owners of the land to high water mark to wharf out against their own land, forms a part of the local common law, founded on immemorial usage. Chapman v. Kimball, 9 Com. 38; 1 Swift’s System 341.
In Pennsylvania, the proprietor of the adjoining land has the ownership of the soil to low water mark. This has been adopted as the common law of the state, independent of the statute. Hart v. Hill, 1 Wharton 124; Ball v. Slack, 2 Wharton 508 ; 2 Smith’s Lead. Cas. 147, note.
Most of the Atlantic states have, either by direct legislative enactment or by force of local usage, adopted the principle, that the title of the riparian proprietor extends to low water mark, or, the title remaining in the state, that the owner is entitled to the exclusive appropriation of the shore by wharfing out of by raising the land above the tide, and that upon such appropriation the title vests in the adjoining proprietor.
In Yew Jersey, as we have seen, the title of the state extends, as at common law, to high water mark, but it is to high water mark as it actually exists. Where the waters have receded by alluvion, or by the labor of the adjoining proprietor, the title of the state does not extend beyond the actual high water line. That any encroachment upon the shore, or other part of the public domain, may at all times be restricted and controlled by legislation, is admitted. That any erection prejudicial to the common rights of navigation or fishery may be abated, is not denied. Rut in. the absence of such legislative restriction,
I am of opinion, therefore, that the act of the 8th of November, 1836, did and could convey to Nathaniel Budd no title to soil from which the flow and reflow of the tide had been excluded by the improvements of the riparian proprietors at the time of the passage of the law; and inasmuch as it appears, by the evidence, that the place where the trespass had been committed had been reclaimed prior to the passage of the act, and was not then subject to the flow and reflow of the tide, that the defendant has failed to sustain her plea, and that judgment must be rendered for the plaintiff. I have arrived at this conclusion' not without anxious solicitude, increased by the fact that the bench are divided in opinion. It is a source of real satisfaction to know, that if I have fallen into error, that error may be redressed in a higher tribunal.
Carpenter, J. I do not suppose that any title has been successfully set up by the plaintiff, except what depends upon his rights as riparian owner. It is not necessary, on this point, to add to what has already been said in the opinion delivered by Justice Randolph on a previous occasion. The different grants, the titles to which became vested in J. B. Coles, under whom the plaintiff claims, extended to the river, but they were as clearly limited to the edge of the river. The plaintiff then stands, in relation t® the premises, simply in the position of a riparian owner.
On the other .hand, the title of the defendant rests solely on the validity'and extent of the grant of the legislature, by the act of November 8, 1836. It is obvious that the survey to Boudinot is to be laid entirely out of the question. If titles derived under proprietary grants can, under the local law' of this state, extend to low water mark, the survey can be of no avail in this controversy, for the plaintiff shows a prior title. If they
The premises described in the plaintiff’s declaration include some land not comprised within the bounds of the survey, as claimed by the defendant, being land which was above high water mark in 1804, when the survey was laid. The plaintiff seems to suppose, the plea of title being general to the whole premises described in the declaration, that he will therefore, at all events, be entitled to judgment in the present suit. But it is well settled otherwise, and the very point has, not long since, received the consideration of this court. The plaintiff is not bound to carry his proof of trespass to every part of the close mentioned in the declaration, nor is the defendant bound to support his justification to all parts. It is sufficient for the defendant if he show title to so much of the premises as includes that part on which the alleged trespass was committed. The record, it is said, would be decisive evidence in a future action ; but it would be evidence only as to the part of the place in dispute, and it would be necessary to show by proof which part it was. Phillips v. Phillips, 1 Zab. 42; Bassett v. Mitchell, 2 B. & Ad. 99 ; Smith v. Royston, 8 M. & W. 381; Dorman v. Long, 2 Barbour’s (N. Y.) R. 214.
The plaintiff, then, is a riparian owner, and it will be necessary to examine the extent and character of his rights to the shore, in order to test the validity of the title by grant set up by the defendant. This inquiry involves questions in whicli not
It must be admitted that, in the country from which we have chiefly drawn our rules of law, the doctrine now to be considered has long been well settled. According to the common law rule, the boundary of the riparian owner, in streams above the tide, extends ad filum medium aquae: he is prima facie the proprietor of half the land covered by water. If the same person be the owner of lands on both sides of the river, he owns the whole river to the extent of the length of his lands, subject to the jus publicum, if the river be navigable and a highway. Again, on the seashore, the bays and arms of the sea, and in navigable rivers where the tide ebbs and flows, the title of the riparian owner (meaning by this the owner of land bounded by such waters), unless by royal grant or prescription, extends only to the shore or high water mark. The shore, or space between ordinary high and low water mark, as well as the bed of the river or arm of the sea, is said to be vested in the king, in trust for the common benefit of all his subjects. Whatever opinion may have formerly been entertained, it seems to be now settled, that though held by the king, and subject to be transferred by his grant since .magna charta, the right of property in the bed or shore of the sea and its arms can only be transferred subject to the jus publicum, the common right of navigation, &c. While the soil of the shore is said to be the property of the crown, and has been communicated, in many instances, by grant to the subject, yet it can only be in subservience to the public right of the subjects of the realm. The private right of the crown may be disposed of, but the public right of the subject cannot, even if it be' within the terms of the grant.
This prerogative notion of the jus privatum, which has for its object the personal aggrandisement and emolument of the
But while in England the king holds the right of property in the beds and shores of tide waters, as the trustee of the people, and his grants are subject to public rights, yet parliament represents the people themselves, and, uncontrolled by any supreme constitutional law, may grant the rights of the people. Acts of parliament have, it is believed, in some instances been passed, by which the public rights to the shore have been transferred to individuals; in order to be reclaimed, the effect of which has been to cut off the adjacent owner from all access to the water. One instance of such legislation gave rise to the case of Lowe v. Govett, 3 B. & Ad. 863, in which not the validity, but the precise extent of such parliamentary grant was drawn in question
But the omnipotent effect (if I may use the phrase) of an
Independent of technical ownership, there are dieta, if not decisions, to show that the riparian owner in this country has peculiar rights, incident to his position, which will be protected
If the doctrine, as thus propounded, can be maintained, the right of fishing upon his shore, the right of ferry, the right of access to the water, aud even the right of accretion, belong to the shore owner, as incident to his position • it would seem to follow, that no grant for a mere private purpose can be supported which interferes with the established rights of such owner: it would simply be to take the property of one citizen, in order to transfer it to another. But I do not intend to discuss whether this doctrine, as thus broadly stated, can be supported, as I believe it to be clear, that under the local law of this state, to which I am about to refer, the plaintiff has a title which is beyond the reach of such legislative grant.
It has, undoubtedly, been the policy of this state (as of other states in this country) to encourage embankment and improvement upon its shores, and particularly of the marshes aud fiats along its tide margin, which are entirely useless in their original condition without the aid of art and industry. The safest and best encouragement has been given to the expenditure of labor and capital, by permitting the riparian owner to extend
To the same policy we owe our successive meadow laws, which seem like so many recognitions of the right, as well as of the custom of the riparian owner, to embank the low grounds on the margin of our tide waters. They apply, in very terms, to those grounds “ usually overflowed by the tide.” Rev. Laws 82.
This right or privilege to wharf out or embank is undoubtedly subject to all the restrictions necessary to secure the rights of the public. Public rights, as of navigation for instance, are undoubtedly paramount, to which those of the riparian owner must yield when they come in conflict. The absolute rights of the state to control, regulate, and improve for public purposes the navigable waters within its limits, will not be disputed, by which the rights of such owner may be incidentally affected,
In England, if a wharf or other structure be extended into the stream below high water mark, it is considered a purpresture or encroachment, which, by the aid of legal process in the appropriate court, he may demolish or seize and arrest at his pleasure. It may not be necessarily a nuisance, though a purpresture. Hale de Jure Maris, Hargr. 85. The king may seize upon the encroachment, not, so far as I have been able to ascertain, by the direct action of himself or his alienee, but by information filed in the Court of Exchequer, for the protection of the jus privatum. The remedy for purpresture, it is laid down, is either by information of intrusion at common law, or by information at the suit of the attorney general in equity. The attorney general then, on the part of the crown, may proceed for the purpose of protecting either - the jus privatum of the crown from purpresture, or the jus publieum from nuisance, by information in equity and personal decree. See Angelí on Tide Waters 200; Eden on Injunc. 223, 260, and eases.
Undoubtedly here any encroachment may be prevented or arrested by the proper action of the state; or if made, and it interfere in any manner and to any extent, even the least, with public rights, it may bo declared a nuisance, and abated. But rejecting the mere prerogative notions of the jus privatum, the state, after she permitted and encouraged the erection of wharves, docks, and other additions to the upland by the riparian owner, cannot then convert them to her own use without compensation, or transfer a title to some third person as her alienee. If wharves and clocks be erected under the sanction of the local law of the state, it seems equally clear that their
It is sufficient, to dispose of this case, to establish this modification of the common law, and that, under this local rule, the accessions to the upland of.the plaintiff were lawfully made. In this I fully concur in the opinion delivered by the Chief Justice ; but I do not feel at liberty to stop here. I am strongly impressed with the belief that, under our local law, the title of the riparian owner, as derived from proprietary grants, extends to low water mark. Of course, if so, it is to be understood in a qualified sense, and subject to the public rights of navigation, &c., as already more particularly remarked upon. If the local rule can be shown to go to this extent, the plaintiff shows a prior title, which it will- not be pretended can be destroyed by mere legislative grant to another.
The common law in regard to the shore has been much modified in this country, not by statute merely, but by usage. I) is not necessary to recur to the cases cited, which are mostly collected in Angelí on Tide Waters, to show in how many of the states of this Union the title of such owner, subject to the jus publicum, is held to extend to low water mark. In many, the title of the owner on the margin of tide waters is held to reach to that extent, in so many indeed, that perhaps it may not be improper to state it as the general rule of this country. I am not aware that in this state, prior to this cause, the point has ever been distinctly presented for judicial consideration. In Martin v. Waddell and in Arnold v. Mundy there are dieta, but in neither ease was it necessary to consider the title of the riparian owner, whether it went to low water mark or not; and the remarks of the judges in regard to the common law rule were merely incidental to the principal question, and ought not, therefore to be considered as governing this case. The common law rule, as to the ownership of the shore, was correctly stated ; but whether it had been adopted in this state, did not arise in either of those cases, and cannot therefore, in my judgment, be considered as decided. It will be seen, from the statement of the case in Arnold v. Mundy (1 Halst. 2), that the oyster bed which gave rise to the controversy was
In Bennett v. Boggs, Baldw. 60, it seems to have been taken for granted, by the counsel on both sides and by the court, that the rights of the proprietors, as riparian owners, extended to low water mark in the Delaware, though no farther, and that to that extent they might claim title. The same rule has been sometimes otherwise incidentally recognised, in regard to which the meadow laws may be again referred to.
Shore fisheries belonging to the riparian owner, and annexed to his soil, except as separated by conveyance or devise, and thus turned to an easement, have by long usage become the unquestioned subjects of private property. They are closely connected with the local law in regard to the shore, and the title to this species of property has been repeatedly recognised by legislative acts and judicial decisions.
But all this is referred to merely in corroboration of the inference which I would draw from the universal understanding of the profession and others, as to the local rule previous to the construction lately given to the eases of Arnold v. Munch and Martin v. Waddell. Until of late, it was universally supposed that in this state the title of the riparian owner extended to low water mark. The usage in regard to proprietary grants, so far as I have been able to learn, has been in accordance with 'that understanding. In the many original surveys and subsequent conveyances of land bounding on the tide waters of the Delaware and its tributaries, which have come under my observation, I have no recollection that I-have ever seen an instance in which, if the margin was defined, the document did not call for low water mark. I have made considerable inquiry of experienced surveyors and scriveners in the lower part of the state, and have been informed that in that section titles to land on tide waters extend to low water mark, and that such is invariably the ease when the description defiues the margin,
The origin of this local rule does not seem difficult of conjecture. The first surveys were made by the proprietors, when they held both the government and ownership of the soil, and when their power to grant to low water mark will not bo questioned. The royal grants to the proprietors, through the duke of York, conveyed a title to low water mark on the exterior tide waters of the province, certainly on those of the Delaware. As a question of jurisdiction, those grants were unquestionably to that extent, and subject to the jus 'publicum. I suppose the right of the proprietors to the soil, to the same extent, to be equally clear. They granted titles to the same extent. The policy and usage of the state I have before referred to. In 1702, the proprietors surrendered to the crown all the powers of government, but reserving all their rights of property in the soil. The construction of those grants aud of this surrender is to be found in the uniform practice of the proprietors, never questioned by the state from that time to the present. The proprietors, and those holding under them, have so made grants to the present day, and, until of late, without question as to the title conferred. Vast improvements have been placed on the shore upon the faith of that title. It will astonish and alarm owners of land bounding on the tide waters of the state, if, after a usage such as I have referred to, they practically learn that they hold them only by the forbearance of the state. I have no personal knowledge of the usage in East Jersey, though from the character of two small surveys, in the survey of the common lands of Bergen, brought before us, as well as from other obvious considerations, I infer it to be the same as on the Delaware.
The act complained of in this case as a trespass, aud justified on the ground of title in the defendant, a title resting on the alleged grant by the state, was done on ground reclaimed by the plaintiff, or those whom he represents. Large sums of
But another point has been urged by the counsel of the plaintiff, which, perhaps, ought not to be passed without notice. It is said that the title set up by the defendant under the grant of the state must fail because of false suggestion, and the consequent imposition practised on the legislature, apparent on the face of the act.
It appears that Budd, who applied for the law, held, in 1802, under the heirs of Archibald Kennedy, a part of the premises now belonging to the plaintiff. The title of Kennedy was controverted by the trustees of the town of Bergen, but the titles
But, passing by what might be said as to the construction of the act in this respect, which it is unnecessary to consider, it is urged that the material matters so suggested were, as appears by the case, entirely untrue. Budd was never seized or possessed of the flats covered by that survey, either in fact or in lawhe had no actual possession, none such is pretended, and the survey conveys no title upon which a possession by construction of law could be supposed to rest. But it is not upon this merely that the point is pressed. The preamble suggests, in direct terms, that the survey was located in front and on each side of the ferry wharf of Budd. In this connection, it is asserted that this is equivalent to an assertion that he was the owner of that wharf, and, as such, placed him before the legislature on strong grounds when he asked to be confirmed in his title to the flats in front of that wharf. If this be taken as the meaning of the suggestion, the evidence in the case certainly shows that it was utterly untrue, for Budd did not own that ferry wharf or one foot of the upland adjoining. The wharf which he had once held in possession for the use of the ferry, already referred to, and then projected, he had long before abandoned. The wharf, as well as the land adjoining, was the property of John B. Coles. It is alleged that a grant by private act obtained from the state by such misrepresentation is void.
Grants by the state by private acts, in regard to their validity, seem to stand much, on the footing of grants by the king,
If it appears on the face of the grant that the king was deceived by false suggestions the grant may be treated as absolutely void, whenever the title is incidentally drawn in question, as in Legáis case, 10 Co. 109, where it was so ruled on ejectment. It does not seem necessary that it should be set aside or declared void by direct proceeding. See Parmenter v. Gibbs, 10 Price 412; 2 Rol. Abr. 191 S. pl. 2, cited Chit. Prerog. 330, note.
This doctrine in regard to private laws, when obtained by misrepresentation, is here of great importance, where special legislation is so readily obtained without notice to other parties to be affected. The mischief is one-scarcely to be avoided under the facility which attends the most enlightened legislation, and private rights seem to need for their protection the application by the courts of these sound principles by which its inadvertencies may be corrected. In this base it seems difficult to resist the conclusion which is the object of the argument so presented to the court; but it is not necessary to express any decided opinion upon this point under the view taken of another part of the case.
Randolph, J. When this case was before us on a former occasion, it merely appeared that the locus in quo (where the alleged trespass was committed) was below what was formerly the high water line, and the conflict was between the rights of a riparian owner, who had docked or filled out below high water, and the grantee of the state below and up to that point. 1 Zab. 156. The court decided in favor of the latter, and allowed a new trial upon the common law principle, that the rights of the riparian owner did not extend below high water, and that the grant of the state was good and effectual to cover the premises. Neither of these positions, as I understand, are directly controverted at this time by the court; but; as the case now comes up from the circuit, the point of the alleged tres
Although the opinions delivered in the cases of Arnold v. Mundy, Martin v. Waddell, and Gough v. Bell, covered this question, and considered the whole matter settled up to and below high water mark, yet, as the right to the shore between low and high water mark was not necessarily strictly involved in either case, it cannot be considered as definitely settled. If the case really depended on the priority of time between the date of the defendant’s grant and the time of the filling out the plaintiff’s dock, I should have some hesitation in giving judgment for the plaintiff on that ground ; for the defendant’s grant, which covers the loom in quo, is dated the 8th of November, 1836, while the evidence of plaintiff’s right, acquired, if at all, only by filling out, reads thus ; “ Where the grass was cut, was done (i. e. filled out) between April and November, 1836, it was done by the 10th November, at any rate.” But, according to the view which I shall take of the case, it will not depend on this question of priority. It is certainly correct lhat several of the states have adopted a rule different from that of the common law, in extending the rights of the riparian owner to low, instead of to high water line; thus in Massachusetts the rule has been adopted to extend the line to low water, provided it is not more than one hundred rods from high water mark ; but this rule or law was settled by a colonial ordinance of 1611; and although it did not extend in terms to Plymouth or the province of Maine, and was in effect repealed by the repeal of the charter, yet it established the rule, which has ever since been followed in both Maine and Massachusetts. Angelí on Tide Waters 224, 226. A similar rule was established in Rhode Island under the sta
These are all East Jersey deeds. With regard to those in West Jersey, I have not been successful in my investigation, but think it not improbable that some, perhaps many, may there be found which call for the low water line, for this reason, that the boundary of the state under the grant from the duke of York is different on the western, from what it is on the eastern - side of the state. With the latter, it embraces all the water and water rights that a state can claim under a general boundary on the ocean, arm of the sea, bay, or navigable river, whereas on the west it is the land or country lying east of Delaware bay or river; and this description only extended the right of the proprietors or state under the grant to low water on the Delaware bay and river, though, by the declaration of independence and the compact with Pennsylvania, it was subsequently extended and settled to the middle of the bay or river. 1 Chal. Opinions 59 ; 4 Wash. C. C. 384, Corfield v. Coryell; 1 Bald. 140, Bennet v. Boggs; 5 Wheat. 374
Then, as neither the sovereignty nor propriety of New Jersey on the Delaware extended beyond low water mark, it is not improbable that deeds would be made or considered as extending to that line, for the proprietors would have no object in leaving the shore without owning the land or river to which it might be attached. The common law jurisdiction would extend to low water, and convenience would extend the right of
These remarks have been made for the purpose of showing, that although along the Delaware there may be some reason, for supposing that the common law rule may not prevail to its fullest extent, yet if it does not, that there are some special reasons operating, which do not exist in other parts of the state, particularly in the part where this controversy arises; and also, as showing a sufficient reason why the impressions of professional men and others in the western part of the state was, that the rule, as regarded the land owners, was the low, instead of high-water line. Indeed, prior to the decision of Arnold v. Mundy, it was their impression that the entire bed of the river was private property. Griffith 1291.
It has also been urged, that the right of fishery, which exists in the Delaware, and perhaps some other rivers in the state, and the sanction which has been given them by the legislature, and also the legislative acts for the protection of low meadows sometimes covered by the tide, afford at least a persuasive evidence of the existence of a rule.different from that of the common law. After a very full consideration, I am unable to give the argument the weight which is claimed for it; so far as it applies to the Delaware it may be embraced in t-he considerations already stated ; in regard to the whole matter, the very fact that the authority of the legislature was constantly invoked, would seem to raise a doubt of the general or special common law authority. But although the right of fishery, like the .right of way or the right of common, may be severed from the farm or manor, and any appropriate suit or action may be brought respecting it, yet it is dependent on the upland for its existence, and does not in fact exist, in gross or
Whether a man’s land extends to high or to low water, he has the exclusive right of fishery and ferry appendant thereto, that is, the right of hauling seines or landing thereon. Any man may fish or sail his boat opposite; he only can fish and land on it, and without this latter privilege the fishing and boating are of little value; and hence his right of fishery. Whatever regulation the legislature may make does not affect the question under consideration: and so of the acts respecting the meadows, and perhaps some other statutes; although reference may be had to rights to low water mark, they must afford but weak and defective evidence of an existing, permanent^ and general custom or rule of the place different from the well settled principles of the common law. But it is said the rights of the riparian owner extend to and in the water; that they are vested rights, of which he cannot bo deprived. In the language of Judge McLean, in Bowman’s devisee v. Waltham, 2 McLean’s C. R. 376, “the right of fishery and ferry, and every other right which is properly appendant to the owner of the soil,” the riparian owner holds “by as sacred a tenure as he holds the lands from which they emanate.” No doubt a man’s water rights are as sacred as those to his freehold, and a railroad or canal company, or an individual, can no more cot him off from the enjoyment of the one than from the use of the otherj both are alike under the protection of the law and the constitution. But the question is, what are these appendant rights in salt water or navigable streams ? Because a man bounds on the ocean or a canal, it does not follow that he has any greater right to -appropriate the subject of his boundary in the one case than in the other. There is a vast difference between a right and a privilege. The owner of a newly created cottage may enjoy the privilege of opening his windows opon a view of his neighbor’s beautiful gardens, lawns, and privacy, but he has no right to do so, and his view may be shut out at the pleasure of the owner. So a man bounding on a fresh water or non-navigable stream, may have not mere privileges, but rights to the stream and in the stream, of
The land owner has a right to the alluvial, if its accretion be imperceptible, but if otherwise, in a body it belongs to the state, (Angelí 149, 165) unless, when created by a sudden revulsion, it may be identified, as the case of the Goodwin estate, when it would still belong to the original owner. Shulls on Aquatie Rights 116. And yet, in either case, the owner of the upland would be cut off from the water without remedy for his loss. Has the owner a right to fill or dock out in front of his upland, or will the sanction of time give him the right? His rights are circumscribed by his boundary, which is the high water line; any filling up or erection below that amounts to either .a nuisance or a purpresture; if it interferes with the public rights of navigation and fishing it is a nuisance, which may be at once abated, or the individual causing it indicted and convicted ; any building or encroachment, or intrusion, below high water, though not amounting to a nuisance, is a purpresture, which the state may demolish or seize at pleasure, or proceedings in chancery may be taken to prevent ■ the wrong. Angelí 199, 200. All these proceedings are based upon the idea that the land owner’s rights terminate at high water; and although below that point is public property, he is just as liable for an injury done to that as if it had been private property,, though the remedy may be slow and of a dif
This suit is brought by the riparian owner in the possession of the land filled up against the grantee of the state for a trespass. Had it been against any body else it might have been sustained, for the possession only is good against all the world, exceptiug the state and its grantee, the rightful owner, and as against his title the plaintiff, in my opinion, has failed, judgment should be rendered in favor of the defendant.
Judgment for plaintiff.
Affirmed, 3 Zab. 624.
Cited in State v. Jersey City, 1 Dutch. 528; O’Neil v. Annett, 3 Dutch. 293; Cobb v. Davenport, 3 Vr. 380; Stevens v. Pal. & Newark R. R. Co., 5 Vr. 537; Paul v. Hazelton, 8 Vr. 107 ; Nooley v. Campbell, 8 Vr. 166 : Barnett v. Johnson, 2 McCar. 489; Del. & Rar. Can. and C. & A. R. R. & Tr. Co’s v. Rar. & Del. Bay R. R. Co., 1 C. E. Gr. 367; Keyport Steamboat Co. v. Farmers’ Trans. Co., 3 C. E. Gr. 22; Atty. Genl. v. Del. & B. B. R. R., 12 C. E. Gr. 8-10; Atty. Genl. v. Del. & B. B. R. R., 12 C. E. Gr. 642.
The surveyors general of East Jersey and of West Jersey, it is understood, have made like answers to inquiries addressed to them by the Chief Justice. T. P. C.
See Den v. Camp and Jessup, 4 Har. 14S.
