Martin v. Lessee of Waddell

1842. TERM, 367 error, in v. The others, Plaintiffs Martin Merrit C. in Waddell, Defendant error. H. of William Lessee one acres of Raritan in the land, covered with' Ejectment water, bay, hundred .in state of lies of Perth in the New The land claimed beneath Amboy, Jersey. township arjd navigable the Raritan river and ebbs flows; waters tide of where bay, right was -the in in fisheries dispute property oyster public principal of The of East was made under the charters rivers Jersey. bays claim his brother the of 1664 and for the 1674, the Second to Duke in York, Charles enabling on the continent .of America. The of to colony him plant purpose the boundaries of the and in in charters, land within territory controversy grant, The thé now of New in which forms the state suc- Jersey. territory by ceeding of East who- vested in the became Jersey, con- proprietors conveyances, The to the defendant in error. in .the veyed proprietors, by premises controversy rights govern- grant originally of invested all the of were with them, terms conferred on the of York. ment and which were Duke in Afterwards, property government, of surrendered the crown all the retain- 17,02, proprietors powers ing rights their of The defendant in error claimed the exclusive private property. right granted in take the- virtue of his title under the him, oysters place by grantees The as the error, of the state New plaintiffs .in Jersey, gtate a law of that in and a claimed the passed thereto, exclusive supplement right to take in the same The oysters between the place. point dispute parties legal the construction and effect of the letters depended upon to the Duke of patent of the surrender, deed of York, made subsequently by proprietors. right King grant The of Great to make Britain this York, the Duke of prerogatives government, all of its cannot at powers day questioned. English right The America were not claimed but possessions by conquest, by According to the of international as then under- discovery. law, principles stood the civilized the Indian tribes in the new world were by powers Europe, regarded rights soil; as mere of the and the absolute temporary occupants property belong were held to to the nations and dominion which European by any portion was first discovered. country grant to the Duke of was not of lands won nor York were the sword, by authorized,to govemmenband he establish laws was intended for conquered people. granted King Charles the Second to the Duke of was held York, country by king regal in his character, nation; as the public representative acting trust for them. The discoveries made under the authority by persons according were for the "benefit of the and the nation; crown, n organ British was the constitution, principles proper dispose public Johnson M‘Intosh, domain. Cited, Wheat. sovereign; When became took state Revolution each themselves place, people navigable and in that character held the absolute all their and the waters, soils under subject their own them, since sur- use, only grant, general government. rendered constitution to the A made by-the therefore, SUPREME COURT. et al. «.

.[Martin different must tried from those authority, principles determined grants single British where the title is held crown, indi- apply in trust for the whole nation. vidual navigable being waters and the lands under The dominion held them, property as a to an individual of ah trust, exclusive public fishery of is much taken from the common fund to it, so intrusted his care for any portion ' the common In such whatever does cases, benefit. the remains in pass by advantage the for the and of the' crown benefit of that Grants whole.community. construed it therefore, and will not be that the are,, strictly; presumed description intended to of the unless and domain, any portion clear public special words are used to denote it. prerogative of the and all the sea, The hnd arms within the limits rivers, bays, King of York, charter Duke and Charles, the of the undoubtedly, passed of. those saved in the letters intended to pass, except patent. w.ere conveying The this charter are different. It is not a deed ate questions very upon pr.; that, to cases of It to be the rules description. interpreted by applicable property, great to be the of a instrument, was an which was founded institutions upon political light regarded and in that it should be and construed. community; object in view of the on the were made The letters face"ofthem. They patent appears enabling the for the of the Duke of York to establish a colony upon newly purpose n governed to be as discovered circumstances would ac- continent, nearly permit usages England; cording the laws and of and in the his and Duke, heirs, which assigns, king, government to stand'in the of the and administer the were place ' according to the of the British and the who were to constitution; principles people this and to form over which he was to rule, this were plant colony, political body governed according usages subjects of accustomed to be to its Britain, Great laws. navigable land under to the The the waters within the limits of the charter passed grantee, government, and were as one of the incident to the of royalties powers navigable that the be held him in the same and for the same manner, by purposes England waters of soils them held the crown. The and the under are by policy (cid:127) England, Magna of been since the last six hundred Charta —for years carefully —has jight of the to secure the of for the benefit It .public. piscary preserved; language Djukq York, of would the letters in persuade require plain patent navigable fishing in which waters, the Court that the and common public long guarded England, has so in been in preserved carefully and so. which-was ’ other intended in this one in- on was borders, Atlantic every the. colony-founded nothing be There is con- stance in the charter that this away. requires .to taken clusion. The the -1702. all the Queen Anne, in surrender “ proprietors powers, by privileges of of the concerning authorities, and the province;” and. words are privileges. in No used the case was one of these dispute withholding of its well-known ordinary from the crown any purpose mealing, (cid:127) according object and prerogatives. evident its restored surrender, tp The originally came hands plight same them the condition which.they n took of New Jersey Duke When possession, York. people sovereignty, the government, own hands-the reins of into-their took JANUARY-TERM, etal. v.

.[Msurtin n belonged regalities either or the before crown . arid which parlia- prerogatives rightfully vested the state. became ment, immediately- meaning riot of instruments question depends upon Whether' on. Quere. ’ of a .: or but letters sta formed .people, by authority, upon patent rights under which certain claimed granted -, British on crown, state, on the if the Coürt of individuals, hand, other, one by private Supreme had been face of the charter the of New state Jersey opinion upon ques- holding óf the state, favour tion was' clearly .the 'rights been of their'just judgment had the erroneous (cid:127)létters deprived patent n thgt 'could maintained the decision the Court state Court, 'State construction bound'the Court of the bnited States. letters'patent Supreme decision of the' State Court which the was ori- patent-by letters province granted King ginally great of Great entitled to Britain, uriqúestionábly weight. If words of the letters had been if more doubtful, Quere, patent n decision great State of a Court on their made with construction, deliberation ' ought regarded research, .. conclusive. error- the Circuit Court

IN United dis- States trict New Jersey. the lessee of William C. H. Waddell, in .'error, defendant to,

instituted, term, 1835, the April Court Circuit of the'United abaction, district New States the of Jersey, for of ejectment, against others, for the Merrit recovery land covered certain Martin.and the ih with situated below Water, bay, Raritan high-water mark; Jersey. The state of defendants appeared to the suit; term,. Í837, at causé was and April by tried who jury, found on which' special'verdictj judgment entered afterwards froth-which judgment .plaintiff; defendants prosecuted this writ of error.

The Wall, Mr. Mr. argued by Wood,-for and case'.was in'error; and Mr. plaintiffs Ogden and by for the Wright, Mr. defendant. Verdict found that special on the March, 12th day letters

certain patent, duly- executed,.were Charles granted by Second, then James, York; Duke King England, and set at forth letters letters stated that patent large. patent “ For divers iis thereunto King, causes and considerations good moving, having of our special knowledge, certain and grace, motion, given us, and granted, mere and these- presents, heirs successors, our and do dearest and unto our bro- give COURT. SUPREME WaiJJeli.] et.ali». - James, York, Duke his heirs and all assign^, ther, part- of New at a England, beginning main-land certain place next, Croix, the-name St. or known to 'New adjoining called Scotland, America; .-.extending along and thence seacqast, place called or unto certain Betuaquine, so. Piemaquid,'and úp thereof, tend,eth the river farthest-'head the-same/as thence; . northward; and to' extending river'-of Kenhe- Cánada; and so .beque, shortest course to the upwards by river of - northward; and-also all.that or islands,-commonly island called ór name námes situate,, several Island, Long Matowacks.or Cape and towards west of toe lying being Cod, and Narrow the main land between the two Higansetts, abutting upon rivers (cid:127)there, or- known called several .names .Connecticut -riverpalled also Hudson with the said Hudson rivers;-together river, and-the lands from west side-of Connecticut east of Delaware And also several bay side islands called all.tho.se names or known of Martin’s tucks, -and Nan Vineyard or otherwise Nantuckett, (whereof aforesaid; with'the tenements aforesaid declaration appurtenances mentioned parcel;) lands, together islands, soils, rivers, all the. mines, harbours, minerals, quarries, woods, marshes, waters, lakes, fishings, ha'wk huntings, fowlings, all' ijrgs, other royalties, prófits, hereditaments,to said islands, commodities several lands,-.and with, belonging appertaining, .and every premises alb our estate, their appurtenances, -right; title, interest,, .bemé and demand) or fit,-advantage) óf, ifc, claim said lands and n part, thereof, and the parcel reversion premises, arid n reversions, and remainders,'together with the yearly remainder- revenues, rents, singular .other profits, of dll' and and of every thereof, said premises,- parcel'- and- singular'the said lands, islands, hereditaments, hold their, and premises, every appurtenances, herteby or mentióned, and- hereinbefore given granted; to be given.and opr York, unto James; Duke of granted heirs dearest brother his forever; to be us, holden of our andtossigris successors, heirs and Kent, of our rhanor -East Greenwich, as in our county knight and-common not in soccage, capitie, free and nor ser vice, and yielding rendering. James, And Duke of same (cid:127) doth for York, himself; his heirs and covenant and assigns, pro TERM, 1842. et al. v.

[Martín Waddéll.] . successors, our for render unto heirs and and to .yield mise a/and when 2r-skins, bea: year, and same, every forty yearly And., we after. do demanded, days or within ninety be shall and mere knowledge, certain' mor' grace-,' our special further unto our and said successors, and give our heirs tions, us, heirs, his York, deputies, agents, James, Duke of brother dearest full and these' assigns, by presents, and commissioners absolute and correct, govern, rule punish, pardon, authority and shall successors, as heirs and oiir us, such the subjects or the parts places into any themselves to time adventure time hereafter inhabit within or at time shall do aforesaid, or that orders, ordinances, directions laws, to such same, according his or assign, said brother dearest instruments, and as our in case of thereof, necessity, and .in defect established, shall.be commissioners, his deputies, discretions' (cid:127)according good as in all causes and matters well' assigns respectively; dr officers others, so civil, both marine and criminal, always and capital as. be and not contrary ordinances said.statutes, proceedings, be; to the laws, conveniently tíiay agreeable near as to, but as statutes, of this realm of arid and 'our government England; our'heirs, the receiv successors, and us, saving reserving of all oí hearing, determining appeal appeals or ing, of, in, or territories or or persons -belonging any person n in or sentence to aforesaid, touching islands any judgment-nr arid be law given. further, ¿hay thére made shall o.r .Arid said his brother, our dearest heirs and ful, and for assigns, time, nominate, make, constitute, time to these presents, from' stile, stiles such name or as to ordain, names, and confirm' revoke, shall sdem and likewise to good, them discharge, him alter, well all ánd change officers singular,-the governors, hereafter, ministers, shall be or them thought him to be made or used within the aforesaid parts fit needful .and also to make, ordain and establish islands; all'manner of directions,. orders, laws, forms and ceremonies of instructions^ fit and government magistracy, necessary concerning islands aforesaid, of the territories and so always laws, same be not arid statutes contrary our realm of but ás thereunto, as near iriay agreeable England, the same at'all execution, times héreafter put or abro-. court. SUPREME et al.

[Martin Waddell.] revoke, or not within precincts said change', oniy gate, seas, and islands, going or but also coming territories they in their same, good he or discretion shall to and from as and the adventurers inhabitants to be fittest for good think certain know further, we of our own there; special grace, and do ordain, motions, mere and declaré grant, and ledge, such time shall be ministers, as time to and from governors, officers aforesaid,’shall form and in manner' and authorized appointed and have full and to use mar and may authority exercise law, rebellion, insurrection, mutiny, tial in cases of and as large as our counties within our manner lieutenants our ample and have, realm of force their have or com England ought realm; of this our mission of or law or statute lieutenancy, any successors, and our heirs further, us, and we do these for presents, Dulce of James, unto our said gr York, dearest brother ant his-heirs and that it shall and lawful and for assigns, may be James, the said in his or York, his heirs and assigns, Duke - discretion, time, time to so to admit such and many person or said territories trade and traffic and-within the persons unto islands and or into or there every any parcel .and aforesaid* have, and to of, and lands or heréditaments in possess, any enjoy aforesaid, fit, as shall parís according think places laws, orders, brother, our said constitutions, and ordinances by his heirs, commissioners, and from time to time deputies, assigns, made, to be of, vi’rtué thetrue according established intent and- these such condi under- meaning presentsmid n tions, brother, said his heirs reservations, and bur agreements or shall set direct and not down, order, assigns, appoint, and we do our otherwise, further of special grace, aforesaid* certain and mere heirs and succes knowledge, motion, pur for us sors, give and unto brother, our said dearest his heirs and these assigns, presents, that it shall and be lawful may him, or them, and times all, them at time any every and. hereafter, whatsoever, out of of our to' realms or dominions any take, lead, carry, in and into then transport voyages-, pur and towards the ahd.islands, said plantations of territories such and so other many of our-loving subjects, strangers pur not being will become prohibited restraint, that' loving subjects, willingly live under as shall allegiance* our TERM, 1842. v. al. et together the said all such voyages-; them accompany other furniture, things usually clothing, implements, trans as shall be for the necessary inha prohibited, ported, territories, and the said islands and for use of and bitants and thereof, and on the trade with carrying managing defence and there; fro, and to and passing returning the people yield us, our heirs and successors, and the customs paying and- ing the laws duties, due and payable, according and customs of realm. heirs, our and us, successors, we also, And our said James, of his heirs York, Duke and assigns, dearest brother and or such or other governor governors, and officers or to all every his heirs brother, as our dear or assigns, shall by ministers said and to have of authority and appointed, said, over the in or inhabitants of command territories or them, of shall and islands, they-and every may lawfully áñd all times time, hereafter, forever, time for their several encounter, and and safety, expulse, resist, defence repel, force by land, sea as well and all' arms, by as'by means ways of and what- all and soever, person such as without the persons, license special dearest, his brother, our said or shall assigns, attempt .heirs several within and limits inhabit of our said precincts terri- islands, and all also tories such every person per- whatsoever, as shall or sons at enterprise, attempt any time hereafter, the destruction, invasion, detriment, or annoyance 'the or islands parts, places, aforesaid, and, or any thereof; part our is, will and we do lastly, pleasure declare and hereby that these our letters or the shall grant, patent, thereof, enrolment good law, to intents effectual and purposes whatsoever, notwithstanding or reciting mentioning the.not or atjy part thereof, or the premises thereof, metes or or bounds former any or other letters patent or heretofore made Or grants or of granted premises, or any thereof, us part any our unto progenitors, other whatsoever, or any person persons bodies politic or restraint, or corporate, law, or other any act, or uncertainty, imperfection whatsoever, contrary any- wise notwithstanding; although mention of true express value or yearly or or of certainty them, premises, ány other or gifts any grants us, ot or of our by any progenitors XVI,.—2 I You.

$74 COURT. SUPREME at al.

[Martín made, the said James, heretofore predecessors York, Duke of made, statute, act, or any ordinance,' (cid:127)in tírese presents pro- made, enacted, heretofore vision, had, restriction or proclamation, matter, cause, or ordained, or other what- thing provided, - soever, notwithstanding.” to the thereof in contrary anywise' " June, that, day found on 23d verdict further special The. York, indenture to Lord 1664, James, conveyed Duke sum Carteret, competent money, and. Berkley George Sir tract all that land to New adjacent England, lying being Island, Island, westward and Manhitas Long east, the main sea and bounded part Hudson’s west, river, Delaware extend- river, bay having upon at May, ocean far main Cape southward ing tp as far as the northward of Delaware bay, mouth Delaware, said or river bay branch of the northernmost latitude, minutes of and cross- is in degrees forty forty-one Hudson’s river, line to straight forty-one over thence in-a ing so tract of land latitude; which as aforesaid de- degrees of said was, indenture, of said to be mised, terms thereafter was a Jersey, New Cassartea or New and and portion part called land, so granted by said tract of as aforesaid tire said York, of James, Charles the Second to the said Duke of and aforesaid, demised, the tenants said tract so as aforesaid mentioned, the- aforesaid in declaration with the appurtenances John,.Lord the said Berkley, and to hold to (cid:127)are To have parcel. day next before Carteret, day and from the Sir George next whole thence ensu- the' indenture, year of said one date and Sir John, Berkley, Lord whereof, said virtue ing. By so as aforesaid demised with into the tenements Carteret, George thereof, for were entered, and possessed the appurtenances wit, afterwards and so thereof aforesaid, possessed, being term June, the same month of of year 'on the twenty-fourth day between a indenture made the said aforesaid, last certain John, and the said Lord Duke of one James, York, part, and Carteret the other date part, bearing Sir (cid:127)Berkley, George aforesaid, the same and last for and consideration day year good England, a arid lawful money competent'sum James, Lord York, John, said Duke said paid Berkley, he, James, and Sir said Duke of Carteret, the said George TERM, et al. [Martín sold, bargained,- leased, and

York, confirmed to said granted, and Sir Berkley Carteret, John, George Lord and .to- their heirs foreyer, then being their actual assigns and possession, aforesaid,- last the appurtenances, tenements as aforesaid, so New Cassarasa called rivers, to be Jersey; also, New. and minerals, woods, fishings, fowl- hawkings, huntings, mines,/ profits, all other royalties, co'mfriodities, ings, heredita- whatsoever, to the said land and or in belonging, ments premises (cid:127) with their arid appertaining, of their anywise appurte- every as full and nances, ample manner as the ‘same were granted James, York, Duke the said the' letters before-recited to have and to hold the' tenements last with the aforesaid, patent, of. unto the said every them, John, Lord Berk- appurtenances Carteret, Sir their heirs George and assigns ley, forever. further found

-The special afterwards, on 29th verdict June, 1674, day King Charles James, the-Second granted n Duke, York, and on the 28th and 29th days July, James, York,.for Duke of sum of competent money granted to Sir conveyed Carteret, all that tract of George adjacent land England, lying being westward Long Island and bounded on the east, and Manhitas part by main Island* river, Hudson’s sea) extending southward far as a creek, cahed Barnagat, certain about being the middle between and, Point Sandy Cape May, 'bounded on: west, in .a from, line said creek, called straight Barnagat, to a certain creek river, Delaware called Renkokus and thence the said' up Kill* iriver,to the Delaware northernmost branch thereof, in latitude degrees forty-one forty minutes, and .the north, crossing over in line to. straight river, Hudson’s forty-one degrees latitude, which said tract of land and (of last premises, mentioned demised, tenements the aforesaid, and with the appurtenances in aforesaid the declaration are mentioned with all parcel,) together minerals, woods, rivers, mines, hawkings, fishings, huntings, and all and fowlings, royalties, profits, commodities, and heredita- .whatsoever, to the said ments last-mentioned tenements belong- or. anywise ing, appertaining: with and their every in. in as full and appurtenances) a manner as ample the same were James, said granted Duke York, the before-recited letters patent; -to and to hold the last aforesaid tenements COURT. SUPREME.

n et al. w.WactdeH.] them, unto Sir the.said every .and appurtenafices, theWith Ahd, further, his and Cartaret, assigns forever.. George heirs last-pientioned said execution the- letters that previous indentures several herein ahd said before-mentioned patent, June, in the wit, samé, day-of following thirteenth six and seventy-four, one our year of thousand hundred Lord same onthe day and.promulged certain proclamation published the-Second; he, the the said last aforesaid,„by and Charles year .Second, and.charge persons said did command Charles of "New whatsoever, said Caesarasa -inhabiting province' tenements, aforesaid, with appurte- whereof Jersey, mentioned, declaration are parcel, yield nances aforesaid fo were or shbuld laws and obedience the said Sir in the said province,-by George thereafter established had the Carteret, in the words said (who, proclamation, him, Second, settle and the said Charles sole- as' such terms and.conditions said dispose'of province,upon him, Carteret, said Sir should George fit,) appear o,f- Charles said pain incurring high displeasure Second, and of being proceeded against law.. according n further that afterwards jury by conveyances from found persons, Sir fo divers and George by conveyances from Carteret Lord and the will of -Sir Carteret- and George Berkley sundry and deeds set‘forth in the conveyances partition, .mesne spe- cial'verdict, a deed of confirmation b.y Duke of -the. York, of; the' of. New part province Jersey, called East New of which the ejectment- Jersey, part, became premises.in n 'and vested in and all rights, benefits, twenty-four proprietors, islands, and all and every isles, advantages, rivers, mines, minerals, woods, fishings, hawkings,, huntings, fowlings, .all forts, franchises, other royalties, governments, powers, harbours, hereditaments whatsoever, unto the commodities, profits, said the said of New easterly .part province Jersey, belonging or their, of their anywise every appertaining, appurte- title, interest,-claim estate, and all nances; right, as in whatsoever, well in law advantage, equity, said them, in, of, unto, and out of grantors, every each said the .said of New Jersey, and of easterly province part thereof, ahd reversions, reversion every parcel TERM, 1842. 377 v. WaddelU al. et [Martin same, and and of. and remainders, every pari remainder rents, services, thereof, duties, all the resferved upon and parcél the said estates made by qny grants Berkley Lord theretofore or Carteret, estate, and Sir or George any persons claiming any interest, from, or or under of by, them, either of authority, any of the said said Sir unto .the part premises thereby conveyed and to to have hold to-the said Car- George Carteret; George Sir. teret, and his’ and héirs assigns severalty, and to. sole use of said his Carteret, heirs only George assigns Sir. and forever; and that it was further and agreed covenanted in said the' indenture, said province .that quintipartite, said Sir of New therein to the Carteret Jersey, conveyed George distinguished, known should thereafter be and the name of East New Jersey. March, further fourteénth jurors found on-the day the Duke York, in consideration of sum competent of all such and better claims de- extinguishing

money York, as the his heirs might mands said Duke and anywise or haVé, of, called East appurtenances, with premises, sell, release, as aforesaid, did’ Jersey, grant, bargain, convey, and confirm their heirs twenty-four unto said proprietors, aforesaid, so all with the assigns, appurtenances premises, thereof, to- called East New and parcel Jersey, every part forts, rivers, waters, mines, minerals, all islands, géther bays, whatsoever, franchises, belonging, same quarries, royalties, the free use of all also, bays, or anywise appertaining, said last- between the rivers, unto, waters or lying leading trade, them, navigation, mentioned or for free- premises, otherwise, hold, twenty-four to have said fishery, use only proper their forever proprietors, assigns heirs heirs and twenty-four proprietors, and behóof the said last- said York, said forever. And Duke assigns the said transfer, and assign did also indenture, grant, mentioned assigns, heirs to their twenty-four proprietors, being, said time .and Jersey East New province govern- such, jurisdictions, the same authorized powers, every said whatsoever, .the ments, and things other matters Se- said Charles letters patent, several above-recited them, were.granted or either cond, York, said Duke of 48 SUPREME COURT. a, al. éi York, intended to be be exercised the said Duke granted-^ or in or his or their officers or heirs, assigns, agents, his indenture, last-mentioned- or the said by said confirmed premises, held,, confirmed, them, and to be to be thereby every intended the said exercised, and executed twentyrfour proprie- enjoyed, and the said last-mentioned -heirs tors,their assigns, proprietors to- intents, all con- amply, time being, fully, for-the premises, York, his Duke or heirs as-the said structions, and proposes, exercise, or execute same hold, or ought enjoy,-use, could virtue of said several above-recited letters force and otherwise, or patent howsoever.. Second, found Charles further jurprs that.King November, 1683, an instrument writ-

twenty-third day executed, the said and last-mentioned ing, duly reciting indenture, York, to the said twenty-four proprietors, from D'uke paid. government did their to the soil and said recognise and did .com- Jersey, strictly charge" and province .East inhabitants, and all other persons and concerned planters mand all due obedience to the and laws same, yield to submit their the said heirs, and twenty-four proprietors, government and as'absolute and who governors assigns, proprietors thereof, instrument, the said the sole writing, in the words of had right, York, and derived under said Duke him Charles Second, said settle and dispose said province of East- New such terms and conditions as to Jersey, upon and their heirs should assigns, seem twenty-four proprietors, also, or meet, agents, lieutenants, -as deputy deputies, and them, commissioned by according powers officers lawfully to them. granted and conditions that, on the-fifteenth afterwards, further found day The-jurors'' and the other the said twenty-four proprietors, of April, interest in title, and estate, right, the whole in whom persons, last- were vested at said Jersey, of East New- said province thereof, writ- an mentioned date instrument and day date the same- seals, bearing ing, under their and hands surrender themselves, their heirs, .aforesaid, last did and year „of Queen &c., and her Anne, England, and yield up unto in the said heirs successors, -powers -all authorities rule correct, pardon, govern, furnish letters patent granted,-to TERM, et al. of her any others, or or majesty’s subjects aíí who then were as said or might, inhabited adventure thereafter within into or-inhabit East New said and also to province Jersey; nominate,make, ordain,- constitute, orders, confirm laws, di- any ordinances, rections, or purposes any them, instruments for-those n nominate; or revoke, constitute appoint, or discharge, change, alter or any governor or were governors, ministers, officers should be within make, or appointed said and to province, ordain, establish, directions, any orders, -laws, instruments, forms ceremonies' of. or con- government magistracy, for cerning same, or sea to dr going on-the coming from same, execution or revoke or such 'put-.in abrogate, change of, as were made for or already such concerning them; and authoñtiés powers' the'-said- .also letters to use martial law patent granted, exercise' said -admit, of East New Jersey, and-to or person province per- or there; to trade traffic and encountering, sons if repelling arm's, or to any person resisting by- persons attempting forcevof c them, there without the licer the inhabit of proprietors, said the authorities, héirs and and all other powers, assigns, the last of, and of concerning'the government province privileges which were aforesaid, thereof, or the granted inhabitants above--recited to the said several letters granted by mentioned Queen them., Anne, same after- that the of And either patent, of the same month April, seventeenth wit, day on- the wards, the the said-surrender did aforesaid, last of of accept the year in the said so by made of said government, powers proprietors last and over the premises aforesaid.., 'that, on the afterwards, the found jurors

And further 25th..of the state New November, Jersey' of 1824, the of legislature an act that the shore land covered declared passed the river, in township the waters of the sound and Raritan the planting set for Amboy, apart purpose Perth should be of New state paid a rent to be oysters, subject growing law, commissioners, acting .the authorized Jersey, off lots within stake land to adjacent the owners permit land súrveys of the commissioners;...which surveys to make. were directed water, covered with commissioners in the ejectment,having The found jury that defendants com- SUPREME COURT. al. et the regulations of the act of plied were Assembly, in pos- water, session the lands covered with for the recovery of which was ejectment brought. found the are jury premises dispute situated beneath the waters of the/Raritan river and where bay, the tide ebbs and flows. That plaintiffs claimed ejectment title under those to regular from conveyances whom of East proprietors deeds Jersey had given fee-simple for the claimed premises them.

The cause was argued large, at the counsel for plaintiffs and the defendants, but decision of the Su- many points; Court preme having been on the given questions exclusively pre- sented on the and effect letters construction patent, East the effect proprietors Jeisey surrender Queen counsel on these Anne, ques- arguments tions only given. error. Wood,

Mr. was Mr. plaintiffs whom (with Wall,) n Se- Britain, Great Charles the It is admitted the .Ring as cond, pri- territory Jersey, had the power it, rivers, so grant including private vate he did property, held, was mines, &c., This discovered ordinary territory colonization settlement. After revenue, grant, but for was held detached property lands This and not demesne government, government. sáles of territory usage. conformable proceeds not ap- purse proprietors, went into the private Taxes were of the government. to the'fiscal plied, purposes raise revenue. resorted the. proprietary, under . to create had colonial admitted, It is also that the king power This palatine governments, jurisdictions. but this not 1688; did denied after the Revolution of disputed as already were such destroy operate retrospectively, patents granted. Queen embraced Anne is surrender to

It admitted also to the was all reserved the same no but that private prbperty; proprietors. be able he must recover,

To helow to enable the plaintiff title That he lias a 1st, possessory maintain two positions, TERM, 1842. et al. v. water: navigable soil of this and, 2dly, question, premises right in the a at there was not fishery people That in question. large premises of the soil, must recover possession ejectment, party

1'n. a title. he must show therefore possessory there a common If was in of'New people Jersey right could,un- plenary sovereignty fishery, legislature exercising dispose exercise it, it, lease it, of modify every questionably course, it. lease over Of of it act control ownership would under the use and statute to the defendant good. defendant, commensu- only occupancy premises by .the rate with that He does to take pretend absolute right. qf the soil. He possession a ejected cannot possession his with right. commensurate

Has the a title soil ? shown possessory plaintiff Jersey All titles in back to the Charles the go Second to of York; the Duke and much the sound depends upon construction of in reference to the grant, question. premises that, There are, errors in according view, our two prominent of which we it opinion a complain; contribute' to may understanding of the argument out at thres- point them hold. In

First, grant by king of to a prerogative rights subordi- nate governor, the thus regalia granted continue attached to the government, in the same as when way were in the hands of they be-, the crown. In the grant of the individual, an come mere private The distinction, franchises. property private— be shown, will was in the mind of the Court; Circuit but did not make such vivid impression to induce Court to it out carry to its legitimate results. (cid:127) It Secondly, is.thought the Court erred in clothing too despotic power over the territory him question-r-treating as'an absolute in consi- despot, independent parliament, dering grant as absolute duke transferring such powers. It is admitted this royal grant has a aspect double public . —a and a private aspect. below plaintiff bring- must succeed his ing claim second if he at all. point succeed This was held country conquest. by right and not discovery, It was only retaken from the the ground Dutch claimed COURT. SUPREME

382 . et al. v. Waddell.] Smith’s New Laws, discovery. Jersey 36, 37; of this prior Constitution, 136; Chitty’s Prerog. 29, 30; 1 on the Canal Story Commissioners, 445; 5 Wend. v. People, Bogardus Trinity 4 Church, Paige, 178. to this

The inhabitants carried emigrating country, with them the laws so as far situ England, they were applicable 4 75; ation. 2 P. Wms. 2 178; 411; Salk. Clark’s Colo Paige, 17; 198; nial Chalmers’s 2 Chalmers’s Law, Opinions, Opinions, as rivers, 202. The use of fisheries common property, was to their situation. peculiarly applicable n conquést, English If claimed when invited settle their own laws there, would with them and constitutional carry cases cited. Constitution, Story rights. even as to the conquered, conquest, If claimed

Again, or otherwise, is introduced proclamation law English moment Here it was intro- R. 213. Cowp. king. it is irrevocable in the royal duced grant itself. considered, must be as of British liberty

The great principles and it must construed ac- charter, this royal accompanying cordingly. Stuarts, encourage emigra- that the history,

It is matter of the broadest colonies principles these into tion, introduced of New York constitutions The fundamental British liberty. (cid:127) to Magna Charta. always appealed The people this. show as well as British liberty. of American foundation as that will sea pass in this royal grant no language There is as property. private its arms if the had way same treat here must We be- plaintiff to a individual. private land tract of granted of territory public grant, its being aid from no low can derive and- ádmit, the rivers passed; sense, we' In and government. they passed. how will presently.show its were part arms sea contend, first, that (cid:127)We crown. prerogative regalia or construction a sound could'not, And, . secondly, his Duke charter, private property pass' capacity. Case, Banne called royal always First, They rivers. Aquatic Pre- 1 Bl. Com. Rights, 264. Shultze, 155; Davies’ Rep. TERM, et al. v.

[Martín are such as are in the rights pre-eminently, king rogative by way Such, over' his as subjects. mines, of preference royal wrecks, royal fish..

Such as are on the same rights by king common held _(cid:127) aas holds and aré not ground subject- prerogative rights. Such, instance, -as rivers and demesne ordinary lands of the crown. 4. Chitty’s Prerog. rivers Royal pre- are rivers in Private are eminently king. presumed be owned so Not with adjacent proprietors. public rivers: they are, at common law,'in the king. The sea-and its arms are

Again,' peculiarly pre-eminently in the iri to their all of uses; at king, which, respéct law, are held public, they for the king public benefit, viz., navigation, fishery, mooring vessels, which is subject to the tionis. jus preven Tide-waters, 158. Angel

The after the arise character private rights onty is as changed, in the case of alluvion, out, &c. wharfing Such draining, rights until consummated are mere possibilities. n The in the sea and its arms centres for con- king , is servation of the use. As called highway in the public law the king’s highway.

The counsel Arnold Moody contended there was no distinction between the rights king, inasmuch as were all held under his king, prerogative politi cal 1 Halsted,- capacity. 58. This argument confounded the dis tinction between the in which the capacity holds, king and the held he rights him. holds in his Though political capacity, he as some regalia royal holds pre-eminently rights. General “ words, mines,” rivers, &c., rivers, do-not pass royal royal mines. Cases 333, 334, Wood’s Mines, 336; Case, Plowd. 1 Alton Co. 46 16 Vin. sec. b; 27; 392 Prerog. Ka. Prerog. ; Chitty’s Canal 5 Wend. 451. Commissioners v. People, n Case, Nothing against implication. Banne passes 200. Coronæ, 117; 7 Conn. Rep. Davies’s 157; Jure Rep. term 154. The soil. terms Davies’s Rep. “rivers” will not .pass “ the,con never have the effect to ex s'eientia,” &c., enlarge certa terms, in such rights, as to embrace general struction so prerogative 16 1 46 and the above case in Case, b, Co. Viner. Alton Wood’s will not have-the as “all effect. royalties,” Such terms general SUPREME COURT. et al.-V. 200. Conn. But grant question, .the it is Rep. all royalties the premises granted. appertaining “Appurtenances” will pass things- such as are nothing, except strictly appurtenant. Chitty’s ' It will not Prerog. be pretended that royal-rivers are appurtenant land... adjacent private These doctrines were maintained in this fully Court, case River in 11 Peters. It will Bridge, Charles borne- in also to be mind, that ancient construed m reference to the then undérstood prerogative, shall view this We now charter its other royal aspects state transfer of great containing paper, territory the British powers government, according principles of constitution. it principles this be construed liberal

In respect case, the re aspect We admit that under public .law. contain if the did that, And we grants contend galia passed.- bewill they on technical grounds, sufficient to them pass language government; to the duke as regalia construed to pass as the king them crown, he in the to hold standing of the .place arms, its or ffie sea and them. such as held All regalia, held the duke &e., were rivers, mines, wrecks, &c., royal royal - as attached him, proprietory government The the king respect diike government. being place 1 Halsted, 77, them. 78. cha- by considering,.First, This construction is supported The was held for which the territory racter and in and purpose - grants» The Secondly, design royal king. be held for settle- only, was and could

First, The held territory idle, held there If or otherwise. lie ment colonization' the Indian it as to .title. same would objection and settle Second, was grant The colonize design and .ex- the title with in order consummate British subjects, was, The tend the purpose British dominions. and the law, British on its to introduce British

purports face, constitution. all, To effect these objects, indispensable great they here as were' in should be regalia -royal -held rights or. the benefit- for attached England, to the government, the people. 385 TERM-, 1842. et al. Waddell.] v. of thé the benefit community; held Prerogative use, as royal with the common charged those especially mofe Elisha, 5 Rob. 410; The 4 T. 4; Prerog. Chitty’s R.

rivers.' the sea and of the grant, to this view According Rep. 159. Adm. to the govern tó be be said appurtenant correctly may arms its domain. ment, as a colonial territory by the cases of counties pala- is illustrated

This construction tine. from his stand name, his pelatio,

The count palatine derives indictments are charged against king, place, ing in a lands Hence county.palatine, Inst. 204 . when peace. hi? 4 Inst. 206. Lands within count, livery. pass granted pri be óf a though, cannot of him capite, be holden may Rep. 181. subject. vate Davies’s would, be, in the hands of as they not private, áre regalia count can establish palatine subject.', an- Courts ordinary . .ofjustice. ‘ are incident to me gover a county palatine .regalia The. . It is suf Durham, 2 Bulst. Bishop Boss nment franchises not showing granted by ficient prescribe — Franchise, D. 7. Dig. Com. palatine county . -is an inferior subordinate county jurisdiction A palatine judicial mere with administrative kingdom, heart 'powers. colonial A and is governmentsextends.over territory, large and executive as well high legislative clothed subordinate judicial complete, though sovereignty. —with If in a regalia sub- pass county palatine, incident ordinate them as reasons for incident jurisdiction, passing the colonial to be held benefit government, applied to. the colonists, with tenfold force. applies Queen

The surrender proprietors government Anne, included a wrecks, of all the such as surrender regalia, rivers, &c. royal 1st, 2d, In Impliedly. express terms. 1st, above- Impliedly. view taken of the be ebr- —If

rect, this follows of course :—

If these were regalia .royal grant converted into mere franchises in the hands of individuals, as private property, detached altogether from the government, we have admitted XVI. —2 Von. K 49 SUPREME COURT. et al.

{Martín with the case soil and private rivers, to be in the then were they n notsurrendered. If they concomitants of the govern continued then were' surrendered. ment, clearly they Whát is a surrender a retfansfer?' If regalia pass but incidentally by creation .will, of the sovereign or transfer power, they course, pass by , the surrender thereof. A de facto retransfer takes the . Chitt. Prerog. 205. regalia jure there, surrender are in express terms, But apt "suffi- crown. regalia to retransfer-the cient all powers,'authorities, and surrender privileges of They and. inhabitants Leaming concerning government, thereof. 615 . Spicer, “ in théir Privileges” régalia hands.- It embraces was-so understood Sec. 13. is so It at proprietors. used law. Com. D. Dig. Prerog.

If the high pnly government were political powers designed surrendered, to be: was this why inserted in language surren- The der?. government itself embraces these high political and is powers, senseless without them. All minor jure re- concerned galia the inhabitants. the< is referred to, protocol Leaming Spicer, 590, wherein it stated that the in the seas well rights cannot be cir of the seas wrecks, cumscribed. there'referred were rights tp, fish, &c. royal one

Now, familiar with of New jurisprudence Jersey knows that the claimed or proprietors never after pretended, surrender, these The error claim here rights. arises from instead of attending protocol negotiation, the surrender itself. The for a reservation those negotiated rights, like the Duke But of Athol. were .though commissioners at first some disposed them,"yet- to.concede finally none- them were But this reserved in the on the surrender. attempt, shows reservation, such a proprietors to procure were crown, satisfied that the would them the pass surrender unless an express could be obtained. reservation

In the more instruments, construction of all but ancient espe- cially of public grants, usage continued should long great influence.

Next aá to the arms.. sea and its TERM, 1842.

JANUARY. et al. v. (cid:127) regalia, is one of minor respecting This wrecks. As to 1. as a franchise. subject vested often Lords and.is property, - it. Yet sea claim frequently bordering manors subject repeated regulation has been surrendered, and was - what and under circumstances statutes providing when n the state- Patterson’s exchequer. .into shall be paid proceeds 385. Laws, wharves, piers, &c., ferry-stairs, when Ferries

2. established — river, If over a rivers. bays. private into the stretch would-have land of owner purchase of the ferry owner set such to the -rivers has been up claim public of-the river. No the proprietors. connected with Toll bridges, bridges turnpikes, 3. Bridges. river, established over a railroads, &c.,when public occupying (cid:127) the soil, be an encroachment would upon pro- such river. owned the bed of Compensation if they prietors, made to the owners rivers private cases is always such has to the owners but none been made land; fast rivers. of the public n out into the- The wharf riparian proprietor 4. a local custom How cán the river, Jersey. is. .New

.public with the such a -reconciled idea that the soil custom be growth were the waters private fisheries those public property ' lords proprietors. the state have two waters of kinds of In all the 5. public fisheries, fisheries—and shore be- fisheries —common is confined to owner. The latter fishe- longing riparian taken were usually fish which hauling kinds of ries for those shore fisheries. By long and are called shore, net into have grown .private rights, these of fisheries' kinds- usage, have been owner, recognised by belonging riparian 1 Baldwin’s Rep. v. Boggs, acts. Bennet legislative repeatéd are all fisheries fisheries and riparian Those common several who, such of.the proprietors, the claims with incompatible -rivers, all the and dis- several fisheries had would have claims théir grantees. of them to posed law declared an early was by Delaware Pennsyl- controversy out. But this

fishery. grew vania, against the assertion -them. SUPREME COURT.

{Martín, et al. v. existed, . have all the other rights .common same fishery 480. Spicer, of the state. Leaming waters the, in all rivers Thé fisheries are common oyster and,bays .6. have, state, such. protected been always acts recite the Of the poor oysters, pro take citizens states; .ofother all tect encroachment by them founded 1 90, idea 1 Halsted, 91; on the of.common right. Allison’s N. Laws, 1 1 57, Preamble; 203; Nevile, Pat. J. 87. not

It is that pretended have ever or possessed since the regalia surrender. any have enjoyed They a few grants made have occasionally extended ovér these waters, have been Their very few. have grants but public or confined invariably almost been margin bank rivers. 4 Law See Griffith’s 1292. But Register, public made, it is that'the grantees few have grants they pretended, set- several fisheries or fish; ever up oysters, floating an other right way. claimed exereised exclusive . One would if claimed the proprietors had suppose, regalia Would at once have surrender, they after asserted and exer- title, the Indian a right cised extinguishing prerogative But this has right appertaining private never property.' been or exercised claimed of license from the' independently royal in- New then, government. usage is Jersey, General decidedly to this hostile claim of the extraordinary proprietors. has arisen whether the

A question King England, can grant ¡sea-and its arms, soil so' as to destroy prejudice this, Not at rights. public considering question material I have the main it out. argument, kept purposely had not a however, If he such it power, serves to strengthen the construction of that.-he royal grant did not intend thus the sea its It convey arms-by charter. has shown been all the to which these public uses waters can be- applied .' and common. public n It only is when the waters are excluded from the soil' by allu- vion, &c.,that it wharfing'óut,&c., becomes private; and'thenthe whole character is changed. Udall v. The Trustees Brooklyn, 19 Johns. Rep. 175. soil,

To grant the so an individual to take give right to. ii a has change, áfter such been a nice has question; made and it 389

JANUARY TERM} et al. to.' .[Martin Wáddéll.} a this effect sfatéd that to have rnüst be grant been specially- 2 609. But need 18; why formed. Anst. so Harg. be. if the Can at once so ; grant formed as to specially vest soil, an .individual all common*use and-divested before takes change place.?. is fishery-

Common which may specially pleaded, Orford, be traversed. Richardson v. The Mayor of H. cannot S. C. 4 182; Rep. 437; Creswell, Black. Term Ward Willes’ Rep. 268. A soil the common .cannot,destroy fishery, Bl. Com. 39. The 142; Chit. drawn by distinction Prerog. fisheries, no,t several free and the latter Blackstone between soil, buy ah exeldsive fishery an requires ownership river, See granted Chitty, by private person. on Fisheries, cannot 11, admits rg. .fishery p. 243—269. Ha be destroyed. (cid:127) -, The books áre grants pre-emptive, spoken .of claims grants prescriptive rights, arising prescription, or to to also prior Magna arisen presumed Charta. See 149; 16 5 Vin. b. Siderfin, Piscary, 1; Book, Mod. Year 148, 73; 195; Magna Charta, 1 East, 16, ch. 23. 8 ed. 7 18;. Inst. London, of the river Thames opposite The is-founded on Shultze, No case an 56. can ancient he grant. prescriptive showh Charta and its confirmation, of a Magna not.founded grant.since, . an ancient right on prescriptive The fisheries in river Banhe were róyaí special royalties, of"the crown resting ancient'inheritance old upon charters, from the Rolls; Pipe collected evidence which as-there have,been adduced, .superfluous, would if has the n over waters here navigable, contended for. effect,

The only remaining question considered.is-the be Mundy Arnold, v. 1 Halsted, fne decisions of 1 1; and Penning. 391.

Rep. The cáses these whole The occupied suit ground. .first on location made under the with a view brought Ih the case other inci try right. question came up dentally. was, of this

The suit review and over- object unquestionably v. turn the decision Mundy Arnold. that,

There is no pretence for alleging ally tinder the question 2 k 2 COURT. SUPREME

S90 et al. ». [Martín ."WadáelUJ v. Arnold. Mundy States the United arose Constitution laws, resting construc unwritten local ofwas question The real, property, affected' applicable ancient charter tion of an state. usages cases where an- Court over this citizens jurisdiction concerned, aré suit arises the one which than other state in' Courts; applying federal that the ground rests undue influence. law, will be more free alter, review, riot apply, aré it state law they But' is n remodelstate law. controlling reviewing. is not this Court The jurisdietion is-, It law, equal. of state settling not, so far respects

It.is (cid:127) (cid:127) follow, not-lead. and do Courts subordinate. federal Their ten nót' thousand one Perhaps is occasional'. jurisdiction of this are under the jurisdiction, question, waters in public óf Court at all.. acquainted Court of this cannot expected

The members and mo usages opinions with enter into' .those-local law. Hence this state; the laws of its unwritten dify especially best to Court state judiciary presumed decided had- law, its own and is organ appropriate expound kn'ow settle, it. 10 Wheat.; Morrison, Elmeridorf Bell v. v. Taylor, Peters, 359, 360. Hence Court follows changes Neal, Peters, the state law. Green v¡ , isIt said the in Arnold was not carried decision Mundy up arid in the Court of .decided The true to be as- Appeals. point certained is whether that decision is law; state has whether been so far acted a of its adopted upon to form un- part arid as written law..

There are two branches of law in relation unwritten to. .this subject.

1. Those old-and well-established about which there doctrines can be no and which ¡dispute, be modified or changed can.never without as legislative .interference, such the law of .descents. n (cid:127) 2. Adjudications arising, .cases attended upon constantly with new It of circumstances. is in reference to combinations this.se- cond branch, that the rule the.máxim, Under stare applies. decisis, these adjudications form law. unwritten part But be they may when found not to occasionally, work well3 TERM, 1842.

(cid:127) [Mártinjít O.WaddelL] aL. with the is made flexibility stability modified. This harmonize (cid:127) maxim., of the above The.'power resulting from .application reconsidering bewill and new-modelling adjudications .exercised once and caution. delicacy Adjudications deliberately great forming as settled notwithstand- made, law; are- held with' this occasional interference rule. ing An-occasional the- a does the character of fixed deviation not rifle. When impair a made Court deliberately- ah adjddication competent once pr settle law, disturbing remodeling does not of a belong foreign government, tribunal (cid:127) . Court of Supreme. If suoh- came other up any a point sta,te and it Jersey, might the local law come upon .of up decision as in Arnold Mundy ..such a would be incidentally, at Westminster im- The.Courts implicitly followed. flail.-would the decision This Court,’under follow it. plieitly Green it. follow v. Neal,would implicitly Npw

. Jersey.competent Court of settle lav/; Is the Supreme ? Court of Appeals appeals must it be carried .The up - There are no occasional.’ reports théir- only to that Court are. Court Supreme off qre The decisions reported decisions. he law and Usage, have force law; authority they in the when from. appealed state of-binding precedents cases, other even in the Court of When cited in Appeals, they law; and- as state more respected precedents are especially have- become the when haVe’stood years’, basis action, transactions- and of legislative present business case. been, has but one decision

It is also that there .objected, investigated One decision fully thoroughly may this point. a considered. slightly more than half dozen decisions effective There of arithmetic. This not to be made ought question decision, than one be fully-discussed seldom case more case, not, hear a Court will unless in second very special cause on the same point. another cause in the same or -in argument to, but can add alluded cases, It incidentally may, other wanted, we that is If the decision. little the force of weight'to incidentally passed upon case. The' doctrine it'in .-this Court, held there Tide-waters were Penning. Rep. rivers. navigable counsel, all the to be public admitted by COURT. SUPREME et at. was deemed to be and com there, public oyster fishery only Tiré been, account; It decided has nowhere mon decision, be more than one or a decision Court, that of. there.must such Court of those they thé states where Appeals Courts; in order to introduce a case into the settled law the doctrine, if unsettle a' vast state; out, body- such a carried would stares law, would be of infinite in those mischief productive' Court .a an legislative where branch forms body occasional them, made Court in case before Appeal. Remarks be in reference to where' taken the circumstances. must In case State it said was Court of by'the may-be decision Appeals, of the settled so where there have been <a' law: to form seve ' cases, sometimes bemay ás' in will they happens ral decisions* follow that one effect; same but it does not have the deci said to Peters, Peters, same In 5 151, have the may not effect.- sion Courts,, followed decision this Court "State single doctrine would lead unfortunate-conflicts between contrary A state and If- should judiciary. federal this'Court attempt '«. could be Mundy, Arnold 'binding upon overturn .not Theré would then be decision here-. And only-one -State Courts.- already Court, settled in this would principles decision of State respect bound to follow own Court this Court If should believe 'that the .-soilwas in in preference:- but there below, a common plaintiff was fishery, stated, should, reason above judgment in favour of the below. defendants the defendants' in error. Ogden Mr. in, questions First, Theré are two the extent of this' cases_ Charles, Second, the Second:

grant King operation Queen-Anne. in 1702, effect the-surrender The question now the United country, States, Whether is" acquired of no discovery moment in this cafce. conquest, The question! passed the Duke.of the letters York,-by what patent,, divides itself into two properly portions. 1. What was Had- thing granted?' thé maké grant it is ás construed error. defendants in - n is of lands, soils, rivers, &c., and of all other “ Soil” regalities. the- is. word land pásá- appropriate TERM, 1842. 393 et al.

[Martin term, but an .is not one to general apt proper water.. It a when river; used, soil' and therefore passes by under a- pass all that is prerogative right king’s grant king. heirs, the Duke of York and his to be holdeu fee-sim- by- It is Now, and common deed soccage. in free suppose ple, stop- would doubt of its here, be construction ? It there ped then civil of government, military. grants powers York, Duke of Charles the grant King Second By with all the included within and. also premises grant, parted all his or of sovereignty power government, with óf rights the new so as the laws made condition, government long a to the laws of England; reserving only right were not contrary from hearing provincial judgments'and of receiving appeals with, sentences.' n rights He all his parted prerogative decrees because the-territory grant: having parted contained with the he must with sovereign necessarily parted power, crown, rights all oi He with his sovereignty. parted rights with.all the rights attached to and he had no it; prerogative those remaining him, expressly exeept reserved.

The Duke and the of under York, Jersey proprietors' all the him, King were of- rights seised and possessed both of England, government. property to sucha This had the make presents power point, ? grant error, seems to the counsel for to be

It the defendants placing on too narrow a to of this question ground, put validity this king’s rights. rights were, prerogative Those grant, confined, nature, and must England. the soil, This not with but grant, only govern- parting with him, ment of the transcends all granted by preroga- his. 'country He, rights England. tive common law of king, ,of a England. cannot over sovereignty any part. This tó with and convey property sovereignty this must be territory, great prin- .'of traced law; nation, of national sove- applicable ciples every every whom is the reign any property disposing has acquired nation either conqjiest discovery. of, must judged sovereign power, view b.e correctness law, but the law nations. according SUPREME COURT. et al.r. Waddell,] It is considered cession a one sovereign of his subjects, territory is intended vest in that but'it subject with- all the it government; must construed as arid if it were a to another cession sovereign. By 1783, the treaty King Great- Britain ceded ail his right- over sovereignty States. not the United. Did rivers and soil under them pass words to without include ? a.pf special- his-regalities : was a acquired' wilderness; This newly territory, then (cid:127) settlement and of-it-were improvement great objects, .this,- crown. In order to effect intended to hold out great and others inhabit inducements to come over and Englishmen it; was the a favourite with Self-government always object were people England, imbued with love strongly who of. liberty, and in furtherance of object, this grant, apd- it, -in were made and granted -included power property .to were their king.-. people, subject allegiancé

the crown; but not tó be to all vested subject prerogatives common law. king by same, extent, this,<was;a To a certain one na- war, tion. The enemies of in timé England, were their ene- and in time of mies.; were at with peace, they every nation peace with whom at England But to a great was extent peace. they independent were an government'; laws, their Own making hold- citizens, treaties with the ing Indians,-naturalizing and exertising legislative full duthority;-restrained by the'condition only con- tained in- the with an exclusive -patent, power taxing their inhabitants, &c.

To that- assert held-all they their rights, and all; exercised their to the common law power subject prerogative' the King of England, woúld to common sense. 'To contrary one preroga- tive; -and; peculiar situation, anomalous were 'they suhject,-the to declare war-and to power.of.the.king made péace; (cid:127)but to else. nothing n exercise of royal prerogative .The cases had-in'many been of; considered leading, acts tyranny "England; and-to dvpid being no longer, it, within was no doubt- One great induce- to leave that many- toment never kingdom'; could be- ah.d lieve that those were prerogative- rights- to follow 'them in their homes, new m TERM, 1S42. at al.«. Waádéll.] with, important this it.is argument, in. point

In.connection refer' dates ; wasdated, to the Duke of patent Second York Charles duke-conveyed Berkley -The mid March,j. l'2tp the- 6.64/ On June, agreement 24th The concession-and 1-664. Cartereton adventurers, Carteret with all and every made-by Berkley plant 10th there,-bears as shall date the settle such February, this'yras of-York, it If Duke is. grant before probable .the king, were known before .approved

the concessions duke, therefore, Whether, grants,, these he made- the. concessions, made and,agreements Berkley-and-Carteret were or before the-letters ..of no patent,'is consequence.. after 'article, find the pro of' By twenty-fifth wb the'concessions owh, with acting a‘government erecting prietors of their three king, 'depart knowledge, distinct and.consént free, ments, appre legislative,'executive, judicial; crown law hended, prerogatives, all the comnion óf from: to one of mak England, subject only, great'prerogative, and. ing peace. war , doctrine, in confirmation of are referred to -Sal Court “.The law of whpre, England Lord Holt does'not keld, says, law.is what the In ; king her Virginia pleases.” extend unlimited; ré Holt, of Lord opinion law.,. strained, no principle governed He. -common reference to then, a New right, grant Jersey any had to. without or to his under those-laws. .prerogatives the England, laws*of evidence,of than by his the stronger pleasure He could no give York. to the Duke of made the him words to strictest is the according this- case to determined ifBut most, examine law, the us now let rules technical in the law, questions will the upon and see what result 'this case. error, that the .plaintiffs the counsel for

It contended the rivers, to which tide king ebbs rights the the.prerogative soil under sea', to the inlets the flows, to the bays the use the in trust for fisheries, are him rivers, to held an indi- him-to be transferred ; subjects alUiis and cannot SUPREME COURT. et al. [Martin' which, were these the'trusts vidual. If upon the king held these that the it is state of rights, presumed must, New Jersey now them the samé trusts. hold upon By Revolution, the state all the' which belonged to the acquired rights crown, but none If the all the others. rights upon held trusts mentioned, state must hold them the same trusts. But of New legislation Jersey, such trusts are de- legislature, Acts of New Jersey nied. of November 24, 87,1818. These acts authorize and December the leasing of land, or or soil' the water to flats, those under any individual, and of-the soil owners but to only, one riparian who shall state, certain annual and have rent; a pay leased actually in error the for a premises in-dispute term plaintiffs, of years, to be the owners whom are stated none of adjacent shores. If the. have legislature Jersey the’power to lease for fee; so life or in years, do for they may long . Sio interest or convey any estate premises in- continuance, dividuals,,the of the estate nature to be conveyed must granted depend entirely exclusively legisla- tive discretion. what do the counsel reasoning course for the'

By plaintiffs in that the state error arrive at the conclusion have now the power a disposition made property purposes, and to the Revolution that the crown anterior had no such power or right. intended to consume the time the Court

It is riot by reading to in the argument, referred addressed to already the cases defendants, in error. The counsel for the Court by priricipies stated. All rivers, will be authorities bays contained these sea, arms'of tide cailed ebbs which what are which mark, under below high-water the soil them flows, facie river's, belong in these prima of fisheries a he but however, belong subject; must king. They may, show, actual grant, either an his title to them. He may show a supposes show a may always he title by prescription, grant. it, soil river, passes and the king'of

A grant.from some made was, time, It grantee. fishery TERM, 1642. ét ai. whether could be á several right there withe question, fishery cases on that soil; out neces ownership subject of soil be vested that the under sarily right may admit river añ There are but two cases from individual. which contrary 6 Modern, doctrine can are the 73, deduced. cases be. They Court, it is and 5 Adm. 159. But this be Rep. confidently Rob. lieved, will these two cases to overrule the not suffer mass error, nor the authorities cited for defendants authority of Hale, Sir Mathew one of the most learned and accurate lawyers lived. ever what were surrendered To to the second point; proceed crown,- of surrender of by the. proprietors deed 1702? grant

It will Charles the original be recollected that but of the was not-'only property, Second government . civil and was military power- All granted. territories . granted In their government, the proprietors surrendered was retained was a of property whatever else; and-nothing was necessary government, them. was .Whatever surrendered them. ,the never intended abandon Certainly surrender It enable the it. has queen property, been.sh.own and'to those that the in the soil was held under property granted who Second, the letters It is, then, Charles patent property.. evident that it never was surrendered to crown. If it never but was poWers govern- granted property, it, then it was not ment necessarily appertaining surrendered. cited, As has been shown the soil river may cases to a and the granted subject, still crown This goes on: establishes the fully position retaining such in the to. the existence crown is hot property necessary of the government administration exercised which are' privileges essential- '

every government. established A fort They forts. was .erected at after the surrender and ex- Amboy.- They continued to .use for its territory and. ercise’all.rights property protection law, of local is not a cáse advantage. de- This entitled cisions of New are not Jersey, authority Courts XVI.—2 L Yon. COURT. SUPREME et al. v. Waddell.]

[Martin States, the would be of United on the the Courts con- in This Court statutes New will of the of at Jersey. struction look with but them the yield decisions will to respect, these deci- Court. The Court are of the before the now question called sion the a to a King construction from of patérit England, give upon of well the limits what is now territory which related aa within This is a local question* as New .not York, Jersey. the Court are now called For construction upon give the will look at the interpretation these patent, they given letters The of of the Jersey. people part. territory them in West used letters the of. always the patent, granted by. This Delaware. has been derived river in from fishery of West Jersey. the proprietors of grants in error. the Mr. defendants Wright, statement of the facts concise of the case. following was the Circuit Court ejectment An action .in instituted of New Jersey, by States for the district in United defendant water, covered- title to land situated in the error, to try mouth, of the Raritan river. The de- near bay Amboy of. below, obtained a error, being plaintiff judgment in fendant verdict; on a writ Court,, of error was special Circuit the defendants. prosecuted Court, the ejectment

In claimed title- plaintiffs the Circuit Charles from Second to his King England, patent York, then executed 10th James, March, Duke- brother state now the territory which whole New Jersey, with other large bodies of. question, including premises,in from, land, were the Duke York. By granted conveyances others, the the Duke of arid property claimed to-be York in érror. the defendant the land patent vested in describes of such conveyances England, form from crown of usual reservations, with without exceptions any certain-islands “and the from the west side of Connecticut coast, the séa lands to the side east Delaware bay.” river duke, to the it’ was the from the arid property king This is not mesne frorti duke down that the questioned, conveyances in the have been broad equally to- the ejectment plaintiff Jn title to in question. premises comprehensive carry TERM, JANUAK* et al. civil' government, full

subsequent part patent, powers duke, granted in and over the territory, are. military, an ap- heirs, assigns,”,reserving only “his agents, deputies, person “.touching any judgment in favour peal made or to be them given.” sentence 1702, the East twenty-four On 15th of April, Anne, York,” of Duke of surrendered .'“assignees New Jersey Queen granted of England, powers then was made very surrender king, patent made, and that so the patent; terms of the surrender grant, two after was made. by the,queen days was accepted controverted, in this facts, questions Under this state (cid:127) case made: law conformity -First, Could the King England, 1664, England,, convey, of nations the law's of year the water a valid title lands covered by his-realm subject of flows, rivers, or arms of the where the ebbs and bays, sea, tide province Jersey? establish the following of nature nations pro- laws : to this question positions, pertinent as well of the rivers seas

1. proprietor nation is Every Law of Na- within its territorial limits. as of the lands Vattel’s tions, 120, sec. 266. extent, and for certain itself, to certain sea purposes,

2. The exclusive as well as property and become be may appropriated Rutherford, 1, book 5, 76, ch. Vattel, 127, 287; p. land. sect. 3. sect. in,its possession, may dispose property The nation

3. Vattel, 117, or mortgage it. lawfully may alienate it pleases; 261, sect. 262. with the title to its

,4. sovereign invest may The nation him the to alienate or rights confer and thus property, 261, 262. 117, sect. Vattel, it. mortgage ma following propositions establish of England The laws the, law vests First, England this point:

terial 8, 1 ch. Black. Com. all property. public the title the king Tracts, 15, 261, 262; Hargrave’s Com. Black. Law 298, ;299 2 11, 12; 6 Com. title 10, Prerogative, Maris, 4, Dig., Jure ch. de COURT» 400 SUPREME ei al. .vi [Martin, WTsdMJ ; b, 63, Tenure, 5 60; Dig., Navigation, title 107; Com. 337 Reports, 5, 3 109. Coke’s A the* subject 2. may acquire rivers proper.ty-of navigable soil, itself, and of localities in Specific the- by grant sea ..the as he other king of-the prescription, may inany prerogative of a like character; grants king-may make these Tracts, de Maris, 4, 11, 13, Law ch. subject. Hargrave’s Jure Rep. 3 315, 319; v. Mulligan, ch. Caines’s 5, 17, 18; Palmer 195. Platt, v. 17 Johns. Rep. People

The Massachusetts equally recognise authority .cases jn So, law tracts in that state. other too, are decisions states. 180.; 1 2 Rep. 481; Pick. Conn. 2 475. Rep. Binney’s Rep. rivers, it has been no As said that and the grants navigable soils and fisheries since thereof, Magna Charta, made have-been . 155; made following references are v. Rep. Donegal Darr. 3 Hamilton, Cases, 276 — 328. Ridgeway’s Parliamentary , authors, authorities English English Other elementary of. jn the cases, Lord Hale sub positions adjudged sustain.. has a acquire can these ject rights, make 'the make has been them. accustomedto 1 Black. grants,and tit. 54, sec. 45, 10, King’s Grant; 5 286; Dig. Com. Cruise’s 4 Murcat, 2163; Burr. S. 262; 3 C. Dig. Cruise’s v. Rep. Carter 108, 1 Com. 2165, ; tit. Navigation, Mod. 5 2164, Dig. Rep. 105 7, 4 Coke’s Rep. tit. Com. Dig. Prerogative; p. 19; Gooden, Burr. All the following authorities Ballbrook Tracts date later than the publication Hargrave’s give to of a Case, Skinner’s highest, authority. the Banker’s Rep. them 4 Richardson, East, Oxford v. Dumford 601; The Mayer 3 285; 556; Creswell, Barnwell Modern, 875; Burr. 5 439; 5 Cresswell, 268. ; and Pull. 472 5 Barnwell 2. American Bos. the the make such 2 grants. sustain to king Binney’s cases ; 144; 1 3 180; Mass. 522 Pick. Johns. ; Rep. Rep. Rep. 476 4 90.; 20 Johns. 1 131; 195; Johns. 357, 6 Johns. 17 Rep. Conn. 2 1 Har. ; Rep. 486; 481; Conn. Conn. Rep. 7 M'Hen. 284 564; 8 Wheat. 577 — 597. Rep.

Mr., to the cited for the Wright plain- proceeded examine cases in for by error of the tiffs -contended them. support principles cases he that none-of those impugned He doctrine argued had civil,, Some Were taken cases from the claimed. not- TEEM, et al. v. WaddelL] commqn to which must law, only look for pdrties fromthe The difference controversy. between to govern principles law and between the law rights, and common civil law, are laid down Bracton. Barnwell civil 292, 293, 309, 311. Cresswell, 290, Black. Com. 39) supposes Charta, (2 Magna

Blackstone king free 16, had restrained granting ch. fishery; by “ intends exclusive he evidently fishery, navigable Which wa is ters, when soil he it is kingbut different as says because that must in, to several either be fishery, or be derived owner from, the soil. then, had the Kings England, .right, the laws na- at the laws of least until the

tions and statute of 1 Anne, England, 1701, fee, to to a grant in the subject, crown year lands franchises, portions and various royal inherit- property crown, ance of the within the realm; and the subject take, could hold, in full possess, enjoy, propriety, grant, according so lands and to him conveyed the' franchises sovereign. ' to resort to surely necessary It cannot argument authority that the to his power, king make grants.to subjects, prove franchises, either -of 'lands wilderness waste and pro- 1664 or vince of Jersey, 1674, was at least as extensive he then power make grants oossessed similar within realm of England. n Still has it been objected' that title of the' defendant in efror is Hot authorities, sustained these principles esta- power ; because it is said the blish óf the king is confined alienation of his private his property, revenue,” “ ordinary “ lands vested in him upon feudal and does not principles,” extend public- property, held property by virtue of his prero- “ “ gative,”-in way only alleged lie holds the allodium of the soil of rivers navigable and the sea.” The authorities already answer, cited this objection.

All the cases establish the make the grant, or the right of the subject hold by which' pre- prescription, supposes a grant from the crown as the lawful commence- only ment title. Cited, 3 Franchise, Cruise’s tit. Dig. 1; 5 Cruise, 46, sec. tit. Grant, King’s 7; Black, 265; sec. Com. 4 Burr. Rep. 2165. 51

2 h 2 SUPREME COURT. et al. v. Waddel!.] however, has no foundation in 'the objection, This English - law, but is subversive of one of its oldest entirely common settled holdá principles. king nothing best private pro f‘ thing but in coronas. Even that which was every jure perty,” he was king,-the his before moment the crown private property jure coronse,- held him, descends is as his upon not tit. 64); Skinner’s Dig. Prerogative, property. Comyn’s (D. Rep. is, 16 and 23 second of the statute-

A objection chapters Magna Char,ta, adopted by parliament Eng- Third, land in the A. ninth D. year the'reign Henry S, the to the soil of navigable the-king 1224— sea, restrained, was iivers, havens, and arms of the ports, so- that exercise of it as new-grants entirely pr'ohibitedj any to. statute, are to contrary such made to that its grants, subsequent provisions, and therefore void. admits

This of several conclusive but objection very answers; first one to itself as in as if present order, which'seems sound must importance, 1, That relate, neither these at Charca Magna chapters soil to title of the ill, act, which' they contain any whatever of soil either against grants prohibition anywhere, or a subject. in the 'sovereign, broadest-con- They merely them, struction which one has any give prescribe sought restrain use of soil of beds of rivers, banks and it relates navigation and that fishing; obstructions whether the equally of that propriety soil subject, king; be obviated, This will not if the position Court shall be of the of these that, by statutes, virtue opinion of fish- which cover waters ery premises.in question- to' all the' secured and has subjects king, passed the peo- the- state Newof ple Jersey; because the plaintiffs error do defend under such claim of common but right, under a' title in state of New adverse Jersey, to-the-titleof the defend- error,- ant in virtue of which by- claim several fishery, the waters and put defence, put banks down wears thereon, not obstructing navigation, exclude, 403 1842. TERM;

JANUARY- v. Waddell.] al. et taking New Jersey of inhabitants other all the of years, terma there. fish is a Charta is, Magna that to this objection answer Another 2. confined local and its application statute, mere it was passed Parliament for which England, of realm extended subsequently expressly unless legislature, local authority. by competent the .colonies ' The pre itself. the statute the face . is shown upon This 1, vol. Institutes, part Cited Coke’s this language. contains amble ed. 1817. 1, 1, English p. the sixteenth construction to show the further proper order

In Com. 2 Black. also cited Mr. Charta, Wright Magna chapter of of Somersett v. Duke 261, Franchise; title 39; Cruise’s Digest, Britain and Great 1 Statutes of 875; 2 Barn. & Cress. Fogwell, 2, 644, Rep. 7 vol, 242, 688; 579, 718, 213, Coke’s Ireland, 35, 36. 13, p. both the above* enumerated objections

It is believed pre- and authorities the considerations effectually disposed esta- is fully before arrived at sented, and that proposition “ viz.: That the had the blished, King England right, statute nations, and the laws least until the at England, laws crown Anne, year 1701, fee, 1 subject, lands, various franchises, of the royal portions property of the crown, inheritance within the could realm; and subject hold, take, in full possess, enjoy propriety, according-to and franchises, so the so- him grant, conveyed lands vereign.” Court has

This of the the’se as-to the adopted principlés, over his distant and and has conquered dominions; applied them American colonies, relate to *so far as especially of the soil of this grants in'a decisions. country, variety of great of the One cases, if not so, the most Johnson v. that of' leading M'Intosh, in which the of the opinion Court was pronounced the late Chief Justice Marshall. Wheat. M'Intosh, Johnson v. 543, 573, Rep. 574, 595, 597.

Whatever then may been, or be the power may King of England to grant-lands within the it is believed realm, question main now with which this may commenced argument be safely answered. conformity That King England, SUPREME COURT. al. et

[Martín laws the laws of England, could convey, nations ..the á realm, his a valid title to subject lands year rivers, and arms of.the sea, covered water'of where bays, flows, the then tide ebbs and province Jersey; of the United States cannot, according the Courts the well- nations, of the laws of established principles Eng- laws States, and of the laws of the land, United applicable grants States, of land within United such a pronounce conveyance void, for want of constitutional legal power hr the king to make the grant. is,

Second, The do the letters question frqm.the 'next' patent York, to the Duke of king verdict, in the-special found fact the claimed the in. by error; and to convey premises .defendant. recover which action brought.

This niust.be answered principally inquiry from the letters themselves; the and them are found patent following grants, read the Wright Mr. from Charles the King charter- Second to in the York, the Duke as set forth special verdict: and cited on 2 charter, 347, 348, 346 the construction of the Black. Com. ; 7 Con necticut 186; Hicks, Palmer v. Johns. Rep. 133; Rep. 7 Connecticut 199, Re 200. p.

These letters do then, patent, to the convey Dulce of York the premises suit, in this so far as the quéstion propriety thereof was vested in the . at the time of the- Under grant. these letters the Duke of patent, York took and held de territory and scribed unto him in the conveyed when year, he same the saxhe to assigned and Lord Berkley transferred Cartaret. thus became the owners They property government, of. rights' exercised’ same.' Mr. Wright then referred to the grants purchasers from Lord Berkley and Cartafet, as stated jury, -proceedings of the after, twenty-four East proprietors Jersey, they became owners of the He territory government. cited Leaming 77, Spicer, 227, 362. 153, 138, Third, Queen Did this

. surrender to the of England'include, carry it,-a surrender who it, made of the of the soil (cid:127)propriety .covered 'by waters the navigable rivers, bays, havens, and arms of ports, sea; within terri- TERM, 1842. et al. v. King to them the letters- Charles granted patent tóry ? the Second face, its surrender, upon reconvéy

1. Does the deed of title in' that to, part territory Jersey property to the charter, are situated By which ? premises reference "were be seen granted by will powers o'f the that of and the grants instrument’ from soil different two in nowise connected. grants classes it. .appurtenances 615. 609 to Lea ming Spicer, in these"

No construction of the can language employed patents be made to legal which fair adopted, interpretation can item of amount to a conveyance single granted property in the first letters patent.

isIt denied that the deed of surrender in, intended grantors crown, surrender and of the réconvey soil or to them of property conveyed patent of letters - is shown King Charles Second. terms This 588, 589, 590, 594, surrender. Leaming 613, 593, and Spicer, The residue of the of Mr. argument Wright was, upon Ques- tions on the charter arising surrender, no opinion was the Court; and this given.by is, there- the,-argument omitted. The fore, opinion Court power of the the as soil claimed.under the charier, error, defendant in under the holding twenty-four East as the under the Jersey, grantees Duke óf York.

The last question consideration is on the effect of the deci sion of the Supreme Court of New in the Jersey, case of Arnold v. 1 Mundy, in Halsted’s reported Reports, 1. Does that deci sion bind this Court in present case ? (cid:127) .The cases in which principal this has question been raised and considered-or decided,-in-this Court, are the following: M‘Kean v. 5 Cranch, v. 82; Wendal, 9 Polk Delancy, Cranch, 87; That cher v. Powell, 6 Wheat. Rochester, v. 119; Blight 535; 7 Wheat. v. James, 8 Daly Wheat. 495; Elmendorf Taylor, v. 10 Wheat. 11 152; Wheat. 361; 12 Peters, Wheat. 1 153; 571 .

The principles deducible decisions, from these and which are to govern the of the fol- application rule, would to be the seem ' lowing: COURT.

406 SUPREME et al.tv Waddell.] which its Court, upon to this 1. That the point presented substance and ib shall be -law ipvokedj decision identical in: Courts, to, decided by State. point the. presented to this Court.. guide being are-relied upon whose decisions legislative of a' must arise point upon construction 2. the construction state, given whose Courts relied have act pf state, relating law as to what is the that upon;'or local case. to real in the property given title decision, presented, the point State Court upon 3. remained, , toas so uniform so and have must been long, peo- 'the presumption acquiescence authorize decisions of to have made state, authorities of the ple law, rule these Courts that point settled established the state. lands within titles case then into a examination particular wént Mr.'Wright Arnold, did not decision that the Pf v. contended Mundy, stated, had he comey manner, within the principles In this examina to. referred which'are sustained -cases Maris, ch. 5; Tracts, p. Jure he cited de tion Hargrave’s Law 1 Mod. case, he said: this' after the examination Upon point, decision,of the reasons, Supreme each and

For these the. Mundy, case of Arnold Jersey Court New. cannot to real property a rule of law as establishing be considered.as of this this Court decision cause. binding upon that state^ Vat Peters, 656; Hind and wife v. al., et Wilkinson v. Leland tier, case, Peters, report-of 401. After the'analysis that that Court will made, which- has: been it is believed before . two cases, say rulé laid these follow down.in Circuit Court of New case Jersey, question, bound the, have decided same decide,-as State ought Courts' In great them presented-to .decision. questions,'when case, and not thosé of law, rules of the English th.e law,;will civil to a here. décision guide Taney Court. the opinion Mr. delivered Chief Justice error, the Circuit -is writ of This cáse here by brought It of. Jer-sey. New for the district United.States, Court decided, was it was not then But fully at the last term. argued TERM, 1842. et at.«. -it, involved important principles proper because made.it Court; determined the case be heard should bv full as some at justiceS'Weie hear- present former ordered; pursuance á was In- mg, of'this re-argument oidef, having has been discussed s ’counsel and again elaborately bythe beeii Court,;! considered carefully am instructed deliver n their opinion. n The before us arise questions an action ejectment, of in*' error, plaintiff the defendant in who stitiited-by was the in the to’ below, recover one hundred land, Court acres covered with township water, Amboy, of Perth in the state of .situated n At trial iii the Jérseyi New Circuit Court, found a 'jury the. verdict, forth, among special setting things; other that the land navigable claimeu lies beneath the. waters of the Raritan river ebbs, arid the tide bay, where Arid it appears'that the' flows.. matter in is the dispute, principal right to-the' oyster thé fishery rivers East .public New bays.of Jersey.

-, makes title under the plaintiff The charters granted by.Charles the Second to his York, Duke of brother in 1664 1674, for’ the purpose enabling hipa plant on this colony conti (cid:127) nent. The last-mentioned is' .similarto the precisely former and was far every respect, purpose made removing which had then arisen doubts as to..fhe validity the-first.

The two boundaries chartersi are the same, and'they the" forms the state territory embrace of New now Jersey, known,'as territory, East .part Jérsey, afterwards,. deeds and conveyances,.'which it is by"sundry not- necessary enumerate, trarisferred to twenty-four who were persons, proprietors -called East New who Jersey; the terms .of were grants invested, within portion con- territory to them, with'all. the veyed rights property been which' conferred originally had the Duke bythe York of. Some king. serious-difficulties, letters patent however, -in a short' took time between these and- the place authorities; and after some British negotiations upon-the' subject,- in-1702, surrendered tó the crown they, govern- the powers all. ment, retaining private .property. land, water, defendant in error claims the covered.with

mentioned in the declaration, by virtue ouryey .made COURT. SUPREME al, et ti. [Martin and recorded in the the proprietor^, duly the authority'of under were authorized make this And, grant, if office. proper soil, as and has the owner an premises he entitled in The in error fishery plaintiff to the question. right exclusive take, in the same fight oysters place; an exclusivé also claims law the state of New his title Jersey, and derives thereto, and supplement passed same passed year. therefore, between dispute parties, depends point and effect letters' legal the construction to the patent

upon deed of surrender York, and of the Duke made subsequently the proprietors. by to the duke included very.large

The letters patent territory, Atlantic coast from the river St. Croix to the extending along rivers, and within bay, containing many navigable Delaware sea; ol and after tract of granting and arms coun bays, with described, “together lands, all and islands therein try harbours, mines, minerals, woods, islands, soils, rivers, quarries, lakes, hawkings, huntings, marshes, waters, fishings, fowlings, commodities, and hereditaments profits, and all other royalties, islands, lands, and premises S8 several to the id ap belonging with their all every appurtenances,- pertaining title, interest, benefit, and advantage, claim, and estate, right, land and premises;” in the said letters the king, demand heirs, his him, deputies, agents, confer' upon- patent proceed with a commissioners, assigns, powers government ordinances, and established statutes, proceedings, that the proviso " to, but contrary nearly not be might his should authority of the realm laws, statutes, be, agreeable (cid:127) cases, all king, also an appeal England; saving might given colony, sentence which judgment any to lead and trans heirs and assigns, his duke, and authorizing to the country granted, the king realms of out of port prohibited, strangers such of his subjects and so many, ‘ loving subjects’ restraint, would become or under who should under, willingly who his allegiance, live king, assigns.’’ heirs and duke, his accompany its all of prero- this grant, to make right of be ques- at this day cannot gatives powers government, TERM, 1842. et al. v. Waddell.] to determine the nature and to enable us .in order But tioned. duke, it is conveyed proper which it the interest extent claimed British the character into inquire on this continent; its subjects, discovered in the country crown out and which it was parcelled granted. principles (cid:127) were not claimed in America The English possessions For of' discovery. according right, but by of conquest the civilized as then understood law, of international principles re- in the new world were the Indian tribes of powers Europe, soil, of the and the absolute as mere temporary occupants garded Eu- belong were held the and dominion of property the of country portion which any particular nation.by ropean have been may forbearance Whatever was first discovered. either the aborigines, unfortunate towards sometimes practised was the territory they Occupied yét policy, from humanity at their of pleasure, Europe of the governments by disposed The to the without Duke grant- inhabitants.. if it had been found sword; lands won the nor not of therefore, by was York, laws he was establish in- authorized were the government for a conquered people. tended was the letters held by patent,

The mentioned country as the character of the regal representative in his public discoveries made and in trust for them. nation, by persons benefit, were under the for the acting authority crown, nation; according of the principles constitution, was the organ dispose British proper public charters-and, these rest the various domains; upon principles on this continent. The made upon grants territory doctrine of Johnson Intosh, is stated in the case v. M clearly subject Court, after it In that case to be stating Wheat. 595. 8 dis law that an uninhabited- if country, universal principle allegiance owe no individuals who a number of by covered discoverers, of the pro the property becomes government, taken be made that, the-discovery possession “If ceed to say which -acknow of an is authority existing government under the well settled to be equally it is supposed lédged emigrants, by nation; whole is made for the benefit the discovery that of the go organ that by soil is be disposed vacant to dispose has power which the constitutional vernment M XVI.—2 You. COURT. SUPREME et al.o. Waddell.} in, which all dominions; organ, is vested territory

national ,the constitution, of the British According theory law. crown as nation, representing, vacant lands vested is admitted' to exclusive reside power them .to ihe It has a branch of. the crown, royal prerogative.'. ..been was as in Ame- fully rebognised this principle already shown Britain.” island -Great rica as in the , which the charter in .question being principle This be ? construed founded, oughv what was rules to. with, the to meddle point .very We do not propose since bar, at as. of the king discussed much tó a of the soil covered subject portion to grant Charta Magna so as kingdom, waters rim an give navigable for shell fish or' rignt fishery and exclusive immediate either his limits of grant. question floating within fish free, referred to in English and the-authorities doubt, from' . reconciled. altogether But from books perhaps cannot expressed Bench, Court of justices King’s opinions v. Catterall, 5 Barn. and Ald. 287, in the case of Blundall Duke Somersett the case of The 304, 309; Fogwell, and in as, 883, 884, must question regarded and Cress. Barn. since the right king Magna England .against settled in n .not, however, does such a grant. point to make The. Charta first be. decided that in the it-shall' grant this case'unless arise in to intended the bottoms of the the king -Duke of York sever of powers government, prerogative from waters navigable charter; and to convert into mere them the same conferred subject, a held used as his of to he in the'hands' franchises we the more willingly express And forbear private property. fo to has be a matter this because it subjeot, an .opinion,-on ceased the States. For when Revolution in the United interest of.much sovereign-; state became themselves of each the people took place, ap.d to navigable the absolute character hold that conpnon use, waters -and soils under them sub the for-their-own -only the, to rights the Constitution ject since surrendered authority general by-their must -government.. grant the made A manifestly-be prin and determined therefore different tried crown, of-the British 'grants from- ciples Apply those, TERM, 1842. 4it ' al. v. et whole, single a iii

when the title the held by. trust for individual nation. is-it to examine casés whieh many

Neither necessary sides, been cited on both to show in the argument degree of strictness with which ate to be grants construed. to; The authorities decisions and referred more apply properly to an. grant individual prerogative some held franchise, which-is intended him as a to become private hapds. The dominion and his property, property navigable them,, under held waters, being and in the as a "king lands of an exclusive an individual trust, fishery public it, is so much taken from in- any,portion fund common benefit. care for the In cases, trusted to. such what- his still in'the does remains grant, not pass by ever crown the whole benefit and Grants advantage community.' construed will strictly are therefore not be description —and .of he intended part any portion public presumed clear'.and, used, áre to- words denote unless domain, especial it- the, us, rivers, bays,, sea, But before arms in the-case charter, within and all rights un- prerogative limits York, and intended to the Duke were doubtedly passed to. letters patent. used' those saved in pass, except, words therefore, is no room, and there intention; show this evidently mentioned. above the rule application different ones. are .very They charter questions upon waters, in the navigable and propriety the dominion are: Whether them, passed prerogative the soils under and in conferred on ? duke powers annexed to the- political be a were intended to truss-for the' Whether in his hands established'; about community of the new common use individuals, out and/sold to to" be parcelled property like w.e this. question in deciding' And for his own benefit meaning to the strict technical words must not look merely thp of England, institutions The laws and of the ietters patent. charter, the contemporaneous times, object history century it, it, usages for-the given construction entitled .to has since are elapsed, and more'which consideration to .be property not a conveying It is deed weight. description. cases of to interpreted applicable the rules court. SUPREME et al. was which to It an instrument upon founded the institu- community ; n a and in that political tions of great light' it should regarded construed. can entertain no this rule for we doubt to

Taking guide, our. as The true of these letters view patent. object the construction were the of made for the face them. purpose appears They upon the of York to establish a of Duke the enabling colony upon as continent, to be governed, nearly discovered newly circum- to laws of according usages stances would permit, Eng- duke, his heirs and were to ; assigns, in which stand land and administer the government of king, according place ' the British And who people of principles constitution. over colony, .body this form political were plant Britain, Great rule, were of subjects he was accustomed which laws, its according usages be governed Maris, Jure Law Harg. Hale in Treatise de It his is.said waters, and the sea on Tracts, 11, navigable of speaking when “that crown, British al- within the of jurisdiction the coasts and, as a conse- coast, this is the of king great though owner fishing the primary his' hath quent propriety, thereof, common creeks, people yet sea and arms or sea, creeks, fishing a liberty England regularly not, with- thereof, may as a piscary, common public arms it, in such places, unless out to their be restrained right, injury or some parti- creeks, king either navigable rivers, where of that exclusive’ common cular hath subject gained propriety liberty.” “ common here as to' principle Hale, public. stated by is piscary” England, the common belonging people questioned point writer by any English subject. upon whether different have been Opinions expressed, “ since subject Magna Charta, or any either king particular For, can gain liberty.” common exclusive of the propriety liberty, exclusive undoubtedly rights fishery, at individuals this day held by private enjoyed ’ ancient But the doubt existence of grants. would of Charta, Magna to make such a grant after that government itself how show fixed has been policy carefully how subject for the last six hundred years; TERM, Waddell,] al. v. et [Martín has this common for .the benefit the. preserved public. And there is charter -before us the nothing indicating line was different to be designed and opposite policy adopted in that On. after in the clause contrary, enumerating colony. herein the before some of annexed to quoted, prerogative rights the them, crown, used, but not all of words are general convey- “ interest, estate, title, benefit, all the right, ing advantage, claim,, the in the lands and king demand” of premises before grant- ed. The estate and the rights of king passed the duke in the had condition which been held same the by crown, and Whatever was the same trusts. held by as a pre- passed same rogative right, duke character. Anri an if the word “soils” be word to appropriate pass lands covered water, as contended with navigable for of .the.defend- error, ant in associated the letters with patent “other such, as No words royalties,” and are used conveyed for the them purpose jura separating regalia, and converting them into be held and property, duke, enjoyed by from and character apart independent political he the same was clothed instrument. by con- Upon different struction, it for have been him impossible would to have com- with the plied conditions of For it grant. was expressly him, duty he was enjoined upon about establish, to in their new might agreeable make it as near as circumstances, to the laws and statutes of how England; and this be could done if itself, in the charter this high prerogative ? If authority trust was. severed from regal shores, and and the rivers, sea,, them, arid arms of land under bays, as a trust the benefit instead of held for public whole being to be used for community, freely navigation fishery, fish, well for shell-fish as had been floating converted charter into to be out and private property, parcelled itself sold n the duke for ? his own emolument There is individual no- we think in the letters or in thing patent, terms of the the purposes for which it this justify that would construction. granted, And in the land under Court, judgment navigable incident, waters passed as one of royalties grantee the powers of to be and were held him in government; same manner,, the navigable .purposes for same m2-- SUPREME COURT.

-414

' (ti. W et o. addeH.] soils, , thém, are- and the held England, waters of crown. ¿o similar. grants This is confirmed opinion' by referring made, tracts-pf continent, other the same cptintry upon about other territories on the large time. charters of. period Various coast, Atlantic different monarchs of Stuart granted by Were to for of settlement the and dynasty persons, .purposes' different in were united the colonization, powers which Some of these charters grant of-territory. very nearly with .the the one now in and none every respect, controversy; resembled in. believed, from it in the materially differed terms in them, it is sea, soils rivers, arms the and the Which the under bays, and Yet, in no one of. these them, the-grantees. were to conveyed the waters, and its the soil cólonies.has under navigable beén¡ letters fish, fishery floating severed'.by.the for shell-fish them, all the the from from patent, powers government. .In habits to the previous of. the -present day, time settlement .the and they-have have been respected, and the iisages'of colonists advantage common, the benefits been and toenjoy accustomed the and to same the same.purposes, navigable waters that, and for centuries extent, enjoyed been used they have otherwise; the have been well Indeed,-, England. it could not been settlements, could English who first formed men the at- that unavoidably hardships to many expected encounter world, to the banks and to the new 'emigration people their tended at their if water very land under its,,bay9 Of and.fivers as another appropriation by doors was.liable immediate settler, upon excluded land-.thereby fast and property; a; its bottom, shell-fish una from its ole take enjoyment, from bathe, without; stake, pi in. its waters be- there a or fasten even usage of another. ffpoh "rights coming trespasser settlement con- this has,-in respect, New- its Jersey Original would other colonies. Of chartered And it formed to the practice to persuade these lettérs us lángt ge in . require plain patent very waters, navigable and corhinon public fishery thaf in England, and so careMly guarded so liong has been which Atlantic, on the other founded cólpny whieh every was preserved in to be taken instance, away. intended; this iá But bórdem, was one conclusion. in the require we see charter nothing, TERM, 1842. et.sl. decided upon same Court have principles upon York, apply letters Duke patent construction to. equal the twenty- with the-surrender made afterwards force verdict, special tour appears by proprietors, the duke in royalties East New Jersey, including- interest ot conveyed of-government, were to- these'proprietors, and Dowers fully and in the had same condition as amply, been him;. granted they had the same dominion propriety Sea, bays, river's, arms under soil them, and'in the rights'of him belonged,to had fishery, ' original charter. hands, therefore, In as well as in those duke,-this an propriety was incident-to dominión them, regal authority, and was held prerogative: right, associated the powers government.-. thus b.eing And Anne, entitled, up they,,in- 1702, surrendered'-and yielded Queen of England, heirs successors,' “all the and* he? powers granted» authorities cor- and, ltettérs.patent said rect, punish, pardon, govern and rule all. or of 'her majesty^ were, others, subjects or who then inhabitants,-or thereafter might adventure into-or inhabit province within said East Jersey; ordain, and nominate, make, constitute, also and con- firm laws, any orders, ordinances, .directions, and for instruments those purposes, any them;- nominate, and- to constitute, or or revoke; or appoint, governor alter discharge, change, any or n governors, or ministers, which or should were officers ap- said, pointed within province'; make, o.rdain, and to and Orders, laws, directions,, establish any forms, or instruments, cerer for.-, of government and' or magistracy, concerning -the monies sea,"in same, same; or on or 'the going coming from or in- execution;-or put revoke,-or abrogate, such. change as were already -made, for or concerning or government, any them; such powers and also authorities letters patent all.the the-said East,New and exercise martial to use law-in the said province and to' admit Jersey;, any or,persons.to or traffic person, trade there; encountering; force' of resisting by repelling, arms, any .person persons or attempting inhabit without the.re ; theip> license'of the'said proprietors, 'the. .their heirs and assigns all other-the powers, authorities, 'of and/privileges and -cíón- ceming-the government -aforesaid, last or the province um»- SUPREME COURT. a!, et thereof, which were granted

bitants or mentioned to be granted said several above-recited letters or patent, either of which said surrender them;” was afterwards accepted queen. words

We as give surrender found special are broad verdict, to cover all enough the- jura regalia belonged proprietors. They yield “all'the up pow- authorities, and ers, of and privileges concerning and the right of the was one dispute of these au- province;” No thorities and words used privileges. purpose from the crown of its withholding and well-known ordinary surrender, to its according evident prerogatives. object restored them in the same and condition in which meaning, plight York. to the hands came Duke What- they originally right, restored, ever he held was with royal prerogative to which it incident. And if political power great and arms of rivers, dominion and bays, ownership were to have been severed them, the soils under sea, if the crown; from the and withheld from sovereignty, Hale in the stated by the common people, of common fishery withdrawn, was intended to be the design quoted, before passage in this change territory make this would important particular npt terms; indicated would clearly appropriate have been ambiguous language. for inference been have left to the surrender have been referred previous negotiations the construction of the deed. to influence But what- to, in order ’ made, been may opinions expressed ever propositions instrument, deed itself must be- the execution of before between and. agreement the final regarded parties; re-established the words, authority its deed, by plain And crown, customary powers privileges. of its took reins possession of New Jersey when the people of sove- hands the their own powers and took into government, belonged which before regalities reignty, prerogatives immediately the became parliament, either crown or vested state. rightfully the the same surrender is evidently

This construction of at dll the interested the time that which it received from parties New Jersey, the by executed. For it history was appears TERM, 1842. et al. v. acts, documents, the proceedings of.the from as gathered the crown and the authorities, provincial that .government public in its afterwards always- this, by authority territory, established that the same accus prerogative powers the exercised as And, in his dominions. English to exercise concerns tomed dominion and now the propriety question, colo particular timg to time construction authorized nial government on the .soil with abutments covered by bridges navigable authorized wharves; the erection of posts; established waters; 1719, for the passed law preservation and, early also, in its waters. The in relation public usages, fishery oyster be the same. And from continued to when fisheries made, date, until recent very surrender was people exercised and rights have enjoyed fishery, of- New Jersey fish, as a common and undoubted right, and floating for shell-fish or remonstrance from. proprietors. without opposition at different made them times unimportant grants by few running were waters, which the argument, into the navigable produced been as valid recognised have by provincial do net appear authorities, nor to been sanctioned state Courts. by now claimed'was not asserted their seriously And the case in 1 Mundy, reported of Arnold Hal part, .before suit was not instituted until the 1; and which 1818 : sted, year occasion, the Courtof the state held, that and, Supreme upon was without the claim made foundation. by State has by Court, of this been a -The effect decision good It is insisted by plaintiffs at the bar. error discussed deal character, its the con-' the matter local that, as dispute within the fixed limits New only property, concerns troversy tribunals ought of her con- Jersey, settle. decision- the Courts United charter; struction however, it. It doubted, States are bound to follow may, rule, whether within the in relation this case'falls to the'judg- ments of State Courts when their own expounding constitution' and laws. upon here depends, meaning instru- question authority,

ments Jersey,- framed people crown; but British granted charters hand, state, certain on the one are claimed COURT SUPREME (cid:127) v. et al. Waddell.J- this individuals, other. And. if on, Court had been of pf letters -the the face- these question opinion upon patent, that state, arid that had been clearly against -was of, 'erroneous of the .rights, by judgment, their just deprived Would, difficult Court; State to:maintain perhaps,-be this. this.Court, ft-is; of of. decision bourid conscience haWr itself It ever, unquestionably weight. great. confirms the entitled instruments,. an placed, charters uniformly Construction thesje authorities.'; the other,public proprietors had in-which '. arid both of the laws, Public acts colonial so acquiesced. long been founded upon-this and state have interpreta.- governments,, made improvements valuable tion; it. extensive.and to,, judicial authority case sanction referred In paten! letters the words of to,, is had given if the-state it.'.’And been, are., decision, this made far than .they more upon doubtful .question, ..research, great ought,m such 'deliberation ahd with tp as conclusive.. regarded judgment, our be. however, Supreme Cburt Independently, this'decision ,are the.proprietors opinion-that New Jersey, are we and the question; Circuit entitled the'rights’in judgment therefore, must, reversed.- Court dissented;. Justice-Baldwin, Mr. Thompson,

Mr. Justice Thompson. Mr. Justice

The, in this case are question hi mud-flát premises covered New Amboy, the state hay Jersey. the waters of the special on facts found verdict The'cause comes up- lessors, itWhich Court'below; appears .plain- trial a of title regular deduction tiff produced themselves,, premises to" and the' Second down iñ Charles the grant. be-within general are And'the admitted question whether this under the the case is -mud-flat passed question conveyances; set out in the and in- virtue the -several grant, Jersey,- special became vested in proprietors of verdict, of-’a of. majority Cpiirt private property. opinion however, coheur, I against right, opinion, which cannof and shall the reasons upon .my opinion briefly assign rests. the'right

Some objections maintaining been.made-to TERM, 1842! al. et Waddellí]. [Martín out trie nature the'subject óf growing ejectment,

an-action There can .no for such ah grounds in-controversy. mattef land, and riot is the right'to subject question objection: an for land case of ejectment It Is ordinary water. covered the, decla so set described out and w;ater, premises the léssors of plaintiff,, verdict-finds that .the ration;- special and the into the shown, them tenements'with title entered the under mentioned, declaration thereof the and-was the appurtenances'in the -entered upon; until afterwards possessed defendant and reirioved the from such plaintiff possession. ejected, expelled, that found not to So subject-matter only be controversy'is 'to so of but have susceptible actual possession, possessed been and enjoyed. the Court to seem adopted

A majority the'doctrine pf Court New Mundy, v. Supreme Jersey, Arnold decided held,.that in which it' is where the rivers, 1 Halst. riavigable tide flows, and the coasts sea, ebbs and of the ports, bays, includ- waters land and the under the áre water, both common ing and that, Charles Jersey; the.grant'b'f people York, the Duke of which call Second alfthe-rights they royal- as governor province,.exercising passed tjheiduke ties the not as authority, arid but that royal proprietor soil; he' fpr as the benefit of all settlers held them trustée in the province, did and tha: 'fee riot proprietors, acquire such'right soil; would grant a several -that that no fishery; person who river, a navigable bed of- has such oysters plants property in him' to maintain an the' enable action of oysters trespass who And one encroaches it. this rests ágainst any title the land under the that the water broad did proposition, not, York, Duke not, and could pass private pro- it must rest on the To maintain this ground -proposition, perty. water of river is not the navigable under the sub- the' land can words, be right; conveyed by aof ject title to is broad pass case grant enough the present land in question. n that the course New It Jersey is observation worthy with consistent her hardly is pretensions. relation to claim In Arnold v. chief Mundy justice says, upon case of all became vested in of New Revolution people these SUPREME COURT. et al. as the and are' Jersey sovereign country, now in then- and the ; hands legislature may regulate them, &c. But the which be exercised may sovereignty the state, is more than what is nothing called the jus regium. regulating, improving, securing same, for the benefit individual citizen. The every sovereign power itself, there-

fore, cannot consistently of the law principles of nature and'the constitution of a make a well-ordered'society, direct and of the. waters of the state, all absolute the citizens divesting aof It would a ° right. be grievance never could (cid:127)be long.borne free people.

If this be the received doctrine in New in relation to Jersey waters navigable state, and the oyster fisheries, they remain common to of New Jersey, citizens can never appropriated use, or individual and all laws hav- anyprivate such and,void; in view must ing object null and it utterly how the law difficult of New found perceive Jersey; act,declares- can be special verdict, sustained. This that the shore and land covered with water' set and laid out bemay apart commissioners purpose growing planting oysters thereon, such as reserving be parts might judged for necessary public that accommodation act yprovided. nothing said con- tained should authorize'the commissioners to present any obstruc- said, tion, or cause to the any injury navigation'of sound and (cid:127) fisheries, or to river, any’, therein. fishery Here the legislature flats, these in all treat respects land, be used for planting a,re growing oysters; for- the use of which is de- venue state, rived to the aof rent payment It is reserved. not the use water for'any public that purpose this law con- bufan exclusive the use templates; right of the land to. under the in, water, to the contradistinction use of the water purposes for and that this law is so to be .navigation; considered manifest is no from the that obstruction proviso should be made to the therein; fisheries here fishery.or is a manifest distinction made between á an oyster-bed. For if it fishery had been n understood that the fisheries included oysteries, enacting clause and the would a proviso present glaring inconsistency. The clause authorizes the enacting apart setting oystery to proviso, exclusive when use, no is to obstruction TERM, 1842.' et al. v. Waddelli] So if to the that is a an oystery be made fishery, the fisheries. the exclusive use of it. The act owner is deprived seems to a distinction clearly up founded cases many be held books, between an a found in oystery fishery .be term, common use one to the use of land applying water, which is peculiarly to the adapted growing and to be úsed for in the cultivation purpose oysters, used other lands.are purpose they are oysters,-as Whereas a fishery, adapted. acceptation, particularly n has. use the water for floating fish; o'f and this reference is distinction. obvious and natural very title land under a stream of water navigable

That the must be be held to certain cannot denied. But rights, subject public such rights? still what are question remains, public Naviga- those certainly among tion, passing repassing, public it be admitted that the fish for And should float- rights. it in this not .ing right, included would decide the public fish are mud-flat; present premises question. dispute to which has been and is claimed is applied the use It use land, is the growing planting oysters. not that is water, For the question. purpose navigation, the is water considered common to all; public highway, like a on land. If highway land over which a public public highway the soil to that passes conveyed, use; and passés, subject purchaser may an. action for an this soil injury maintain not connected with the arid use; whenever it ceases be used as a (cid:127) public highway, the exclusive so' owner attaches: to the land under respect water, the use for public passing and and all the repássing, purposes' for which a public way may be (cid:127) used, are open public'; owner, nevertheless, retaining and benefits the'rights soil, all. or in- may impede terfere with the use as a Should a coal-mine, public highway. instance, it would discovered under highway, belong such soil, the' owner of the his benefit;. be used for pre- might the So with serving, uriimpaired, an public highway. respect attached, It is oyster-bed, which is soil. not local, is the is common, water that is that claimed; over the beds that is the use soil the .may be used the but the by. by .public; owner.which the by public, is the water consistent the use of with

Von. XVI.—2 N SUPREME COURT. ¿1. et v. Waddell.]' this should, the owner. mud-flat Suppose by reserved to the

is of water, the the ¿hore, receding or in other the wash from or arid become solid ground; which is no up by be filled manner would the an not extravagant supposition; be proprietors means land, owners of have the exclusive right considered the it,of if had in enjoyment the usis and no way parted denied, be if the soil This cannot passed such right.’ and. in the under the t'o vested them. became It. would, state, be not claimed the it no sus- by being surely longer use. ceptible public Brown 5 Har. & Johns. is

The case of Kennedy, fully soil The there related in question right the this point. had to a- navigable river, canal; bed of a which been diverted held, that the in and it the soil covered property by' in the lord the charter was vested proprietary, water .of was in law, right That the common king, Maryland. in he of it sub modo. That the property and might-dispose That the terms be may jus pqblicum. soil granted, subject Baltimore, passed property the'charter Lord- they clearly the soil within the charter. covered waters limits'of by any if had been would conveyed away, the bed river And remained -in the and if an island had sprung proprietary; had been his; it would have been or if the bed of river up, bare, destroyed. as his, publicum left it would would jus we as Hale, Lord find laid down rules'and principles The containing are admitted Tracts; Law as them Hargrave’s to the rights common law doctrine as correct of water. sea streams over arms and navigable hath a We there double down, King England find it laid viz.,' he sea, ordinarily in the right jurisdiction, right or admiral, ownership. exercises his a right propriety or ownership Hargrave, right' propriety, king’s thereof, things in these sea and is soil evinced principally follow. creeks, there- arms sea, right fishing' is

isof, crown; depasturing originally lodged is lord, whereof he coast -the owner of the originally "lodged the-owner that is to him belongs fishing of this owner the king But though inland river. TERM, 1842. et al. . [Martin of his as a coast, consequent proprietaryhath pri-

great sea, créeks, and and the arms thereof; of fishing mary right of have a regularly England liberty the common of people yet or as a sea, creeks, or arms common public in the thereof of fishing not without right restrained of may injury piscary, where creeks, rivers, or either navigable unless in such it, places, a hath gained the" or some' exclu- king subject propriety particular In sive that common arms of the liberty. many ports (11) or sea, fishing by there is an exclusion public prescription facie hath this king primá right although custom,(12) and in arms and communi common sea, jure, creeks pre- have such a in two may fight, a ; sumption yet subject ways. or is charter and this without grant: the king’s question. By within some known fishing bounds,

The Icing grant may though sea,' and water and may grant within the main soil of a navi- and such river; words are gable (17) (when.apt used) soil and if there shall be a itself; sea, recess of will pass land, it will leaving quantity belong grantee. The custom or by mode There second bemay prescription. soil, without or reason

right fishing having by of owning the or a soil, local arises from fishery of the ownership soil.(18) That, de communi jure, right arms of the sea belong have king; yet subject may a.separate right of fishing, ex- of the clusive the common subject. (20) But interest or must be subject so used as not to cccasion a common annoyance or passage boats; ships for that is law, the common as well as prohibited by several statutes.

For jus privatum that is acquired either subject must patent prescription, not prejudice jus publicum, wherewith rivers arms the sea are public affected public use, the soil (22)- of an which, highway though point —as be a property, may freehold, man’s it is yet charged with a interest public not be people, may prejudiced or damnified, (36).

TI.ese rules, always as laid down Hale, Lord have been- considered as the law settling subjects which they been apply, understood all writers as elementary rules, governing and have been recognised by-Courts justice COURT, SUPREME et al. v. Waddell] establish that the common doctrines. They as controlling law rivers,- and shores. navigable is the owner of. bays, the king owns them full arid and has That he full propriety, .dominion convey the'same; he authority may grant a stream,-and in a navigable several fishery law has annexed two limitations this- That only . these power. waters shall remain highways passage navigation, there a ungranted, that whilst remain is right of. but, limitations, them;, subject these has fishery king as individual has-to the land convey full power convey an of which he is the owner.

I se'e the distinctions set nothing countenance up, that trustee, these holds more than he does subject or that he land; them, convey cannot of the discharged right dry There is no of common such fishery. distinctiori with reason to land water. The true rule on the respect is, subject that- a in a facie river is prima fishery havigable common, and-hé who title, sets exclusive show must either up by grant an right, Bench, This is doctrine of the prescription. King’s in’ Eng- It land, in the case in 4 Burr. was an action of trespass for close, called breaking entering plaintiff’s river.Severn; was, the defence set that it was a river, up navigable andan .and sea, arm the wherein has a subject right fish; every that an be a cannot maintained in a right subject exclusive river that sea, is an <5f but that general right is fishing arm com- this was not mon-to all. Bui "recognised doctrine Court. said, the rule of law is Lord Mansfield uniform!. In rivers not of the land have the navigable proprietors right on fishing sides,.and it extends ad generally respective- filum'medium rivers, the But in of the land navigable on aquae; n have, side it is each not. common. It is fishery facie priiM is it king, public. any one claims he exclusively, If a If he can show- right.- right show a he by prescription, must then an exercise exclusive is may right; though presumption him, unless he can it against prescriptive right. such prove Here It is therefore consistent with all the cases, is Claimed found.. have an he exclusive it may .privilege fishing, although sea, such a shall be is an-arm but the right presumed; facie; is but it of. and must contrary, prima capable being proved,, TERM, 1842 et al. V.

{Martín Justice,- he Yates, says, case. And been so in the- present but, was not was concerned in such a case proved, It so be. common; right may proved. found but such-a may salmon the royal and he refers to appropriated by prescription; and says Sir John Davies’s fishery Banne, Reports,' .in river it That it is case. this, good and that it is agreeable very in a fishery a several it that the crown appears, by may grant or in-the reflows, arm of river sea flows navigable where the 105, where, he ob- the sea. I Mod. And He refers case á privi- serves, Lord one truly appropriate Hale if will says any- it Now, if himself, may.be on side. lege Iietb. his proof a grant. for: for a granted, prescriptiqnimplips prescribed may on part' In the the Gounsel case, of thté argument Mathews, as reported defendant referred case of Warren (cid:127) said, of common subject in 6 Mod. wheré it every as in as well river, &c., in lawful-nets, navigable fish with may thereof; them the-sea; cannot bar king’s- grant now case case has been .argument much .relied ' Is in 6 Mod. 73 case before the Court. But this report in the be cáse to found It the clearly only mistake. is which grant king’s that broad is recognised, nere’stated proposition And fishing. right-of cannot in bar subject .the 357, is, as case, the case stated of the same 1 Salk. report Ex, one fiver a grant claimed in solam piscariam, has And, Nott, Justice, said, subject right the crown. Chief sea; to fish in and fish in all he has to. rivers as navigable this the title of grantee, quo try warranto to -be granted ought here, doubt,, no meant Nott, Lord validity his-grant. For he speak of the-. if subject.' right facie in prima tended to be right given by grant that .no such exclusive say could from the to try it to issue a warranto quo would be absurd king, a valid title and no' if validity grant, possibility certain that the events, -could be it is grant very made. At all did not King’s Murcot, recognise in of Carter Bench, the case Mathews, in 6 Mod. 73. the doctrine Warren as reported in no the- circumstances, weight it entitled to And under these is decision of the the Court. case now before numerous, the English It is cases unnecessary refer to in the case this as down books doctrine laid- subject; the 2 n 2 54 SUPREME COURT. et al. v.

Carter v. Murcot is universally as recognised the settled law on and is subject, fully adopted sanctioned Courts of this country. Numerous cases of this description have come before the Courts in the state of New York, and the principles and rules as laid down in the case of Carter v. Murcot fully recog- nised and In the adopted. case of James Gould, 6 Cowen, (cid:127)the Court, in referring case, place the decision it, say, “This is the law of Great acknowledged Britain and of this state; cases are referred to such showing to be the settled law.” case, In' the of Johnson v. M'Intosh, Wheat. 595, this Court say, that' according of the British theory constitution all- lands vacant are vested in the crown as nation, representing exclusive grant them is admitted reside in as the crown a branch of the royal prerogative. And this prin is as' ciple fully as recognised America Great Britain. All we the lands hold were originally granted crown. Our whole has been country granted; and the grants purport as soil well as the of dominion to the grantee. conve]?- Here the absolute is as recognised ownership being crown, and to granted by the crown, title; the source of all be. as well to extends land covered water as to the dry land; no otherwise, acquired title land under to. water. There could is this case no ihtimation that of the lands are vested as trustee, the crown but as absolute owner. If lands under can be are granted, water granted actually grantees must of, course all use and acquire of such enjoyment lands of which property, as much susceptible can be dry land; so as the and there no grounds any implied in the one case reservation of more than in the ungranted rights it, course, of the soil carries with other; which an exclusive may among uses applied, land, or several All whether land fishery. dry grants to water, purposes subject covered with are for the great public - So the of control of the the country. grant sovereign power is a several- fishery, the soil it water, under which carries with of navi subject purposes to the the public use of the water for laid nowhere down it is but gation, and passing repassing; the is a fishery jus as the land, law of the that a several So as the long publicum, public. to of the open use the TERM, 1842.- al. et common, it be used the may is remains fishery ungranted, individuals, to private when becomes granted' pro- but public; whatever; and I subject other think the much perty as. a that a the settled, fishery may subject well law too to at drawn in question. this day grant, the law,, of the common to the If, then, according principles waters the to the soil the of navi- had king grant and if such stream, flows; where the tide ebbs grant gable several exclu- it the the right soil carries with fishery,, the use, inquiries whether remaining sion of .a public York, Duke of Charles Second year grant so, then, ; and if whe- question premises did convey of New Jersey was surrendered by ther this right Queen Anne, in year is one York not containing only This to the Duke of charter Court, This soil, government. but of powers M'Intosh, in the .various char noticing of Johnson v. in the case crown, observe, they purport convey ters from In governments .those of dominion the grantees. soil and right to the where the soil was were royal, denominated the crown, individuals, vested but remained or was claimed and exer vested the' colonial government, the lands. Some these granting cised the charters in those cases in which al5ne, soil convey purport soil are conveyed as well indi .government powers itself to-be acknowledged has bound viduals, crown always instances, after the even powers and in grant; some crown, the title proprie were revested in The Carolinas were originally the soil was tors of respected. but in 1721 a revolution was effected governments; proprietary who off obedience proprietors, shook people their crown, on the dependence immediately declared who were dis the title of those proprietors the king purchased was one Carteret, however:, who pro sell. Lord posed retained government, but Ms interest surrendered prietors, Revolu till the his title and thdt- was. soil; respected title' tion, when it was the laws forfeited-by of war. soil, charters,

This shows the these in which light granting absolute an they conveyed considered That were this Court. SUPREME COURT. et at. v. [Martin soil, every interest in and passed thiqg susceptible of private and is ownership,'of fishery individual certainly one, ac- law, to the settled cording authorities I have referred-to. mentioned, before Subject always, jus publicum, or rights trade; and but of which the navigation a common part, no the soil has fishery forms after been conveyed as private property.

,It is to notice unnecessary particularly the-various charters and mesne in the conveyances set out special verdict.' It was admitted on argument, in question premises fall within these and in the conveyances; proprietors of New vested all Jersey title both of soil and the powers government, which to the Duke York charter passed of Charles the Se cond. in the employed description terms con n veyed, most comprehensive character, embracing land, soil,.and general waters. After description designa - tion of the embraced territory charter, within the and compre " adds, it hending premises question, Together with all th’e lands, islands, soils, rivers, mikes, harbours, minerals, quarries, woods, marshes, waters, lakes, fishings, hawkings* huntings, and other- all fowlings, royalties, profits, commodities, and heredi taments, islands, lands', to the said several and premises, belonging appertaining every of their appurtenances, and estate, title, interest, benefit-, all our right, advantage, claim, and of, in, or to the lands, said or. premises, demand any part thereof, and the and reversions; reversion parcel remainder and thereof, remainders have and to hold all and singular, pre mentioned, or herein' granted, mises unto ouf brother hereby ' York, James, forever; Duke of his heirs and assigns be holden of us our heir successor in and. free If ge.” socca terms are not broad suscep these enough every thing include is others tible of conceive what being conveyed, difficult verdict: could be for that after employed- purpose. special out the which the.title deduced setting conveyances, mesne a out confirmation Jersey, to- the sets down Second, follows, of the title in the Charles the. proprietors by the said "And the oath further jurors say, their aforesaid day Second, oil the' afterwards, wit, twenty-third Charles the thousand six hundred November, Lord-one year of our JANUARY'TERM,' et al. v.-Waddell.] a certain instrument eighty-three, by writing duly executed, date on the same aforesaid; last

bearing year day reciting the said York, last-mentioned indenture from the said Duke of the said did twenty-four proprietors, right- recognise soil and the said of East New government'of province Jersey, the, the tenements whereof aforesaid with appurtenances (cid:127)declaration aforesaid are and did and com parcel, strictly charge mand- the and inhabitants, all other and con planters persons same, cerned in submit and all due yield obedience to-the laws of the said their twqnty-four and proprietors, thereof, heirs and as absolute assigns, proprietors-and governors who the words of the said instrument in the sole had writing, him, derived said of York, Duke power right, the said to settle of the Second, pro Charles and dispose said conditions, vince of such terms and as to upon East Jersey, heirs their should deem assigns tw;enty-four proprietors, meet.” Here is the most full confirmation of recognition and title of the right soil, with the absolute proprietors, the. same in such manner as dispose should they think The absolute could not be ownership expressed proper. in a more full and a In unqualified manner. the case of Fairfax Lessee, Cranch, 618, v. Hunter’s was as question effect and of certain operation words legal descriptive in char the Second; ter of Charles Justice Story giving and.Mr. Court, “The said, is, first whether

opinion question Lord soil, of and seised Fairfax of the waste proprietor ip northern virtue lands neck of the royal unappropriated Second,-and Second; James the Charles whether grants of he had mere therein as lord seignoral discon paramount, land, nected with all interest of sale and alienation. except tract, all that charter entire terri royal conveys expressly all the situate, &c., rivers, land, together tory, and'parcel woods, mines, stone, coal, islands, timber, &c., &c., quarries to'the to their assigns, use and grantees heirs only intent, no It behoof, use, and to other whatsoever.” purpose “ is terms difficult,” to conceive more than Court, say explicit these to vest in the soil land is title interest itself. The and. if thé thereof; title, and the union of the given, exclusive use and"absolute and the exclusive complete use do constitute SUPREME COURT. et.al. ' be it will hot fix easy property, dominion The terms here such dominion.” used are cer shall constitute than those broad and used in the comprehensive not more tainly will consideration; pass right if charter under in the other. The case, must land they certainly soil in one tfie' water, and in the other not, covered with being the one case title, if land under as to the can no difference passing make all; at and whatever the right water can conveyed public be can no to the use of the be, give right it may the use of the water the grant which has become water, private land under the authorities if, as I think clearly'show, And property.' use to which every carries with it’the right of the soil oysters, the- cultivation there can including applied, can as a common can be claimed right. which this no ground upon fishery utterly incompatible A several and a common fishery is The former founded annexed with each other. of soil acquired And when an of soil. and the individual, fishery begins, the several fishery ends. Queen the surrender then, by Anne, in

Did- proprietors, private in relinquish any rights property year the charter of Charles the Second? I soil derived under think it but the nothing clear that surrendered mere very powers charter, retaining unaffected by granted government in. whatever the private manner any property. states this surrender as follows:

The"special verdict “That on one in the thousand year the fifteenth seven day April, hun two, and the dred and the said other twenty-four proprietors per sons, whom, conveyances mesne sundry assurances law, title, and interest' in the whole said right, pro estate* were at the said Jersey, of East New vested vince last-mentioned thereof, an instrument in date, writing the same last seals, day date year hands and afore bearing heirs surrender did and their yield for themselves said, up Queen to her heirs &c., and Anne, England, unto succes the said letters patent and’ authorities in sors, powers all and rule or correct, govern, punish, pardon, any granted, to were, as or others who then inha her said majesty’s subjects into, inhabit or within the adventure bitants, thereafter might or TERM, 1842. n al. [Maitin'et make, noininate, of East And also Jersey. said province ordain, orders, ordinances, laws, confirm constitute, any or them; instruments for those directions, any purposes, or nominate, revoke, discharge, change constitute and to appoint, ministers, or which or alter officers or any governor governors^ were should within the or said appointed province; ordain, directions, and establish instru make, orders, laws, any ments, forms, or ceremonies of government magistracy same, or sea., or on concerning to or coming going same, or to in execution or or put revoke abrogate, change such’ as were made for or such already concerning government, of them. And also and authorities the said any powers ..or letters use patent granted,.to and exercise martial law said province- East New And to admit persons Jersey. any trade or traffic there. and resist And of encountering, repelling, force to inhabit ing by arms, attempting any person persons there without the license of the said their heirs them, proprietors, and assigns. And all authorities, other the powers, privileges of and concerning last aforesaid, province or the inhabitants thereof, which were granted, or mentioned to be granted the said several above-recited letters either patent, or Queen of them. And that the said to wit, Anne afterwards, the seventeenth of the same day month of last April, year aforesaid, did the said surrender of the said accept powers government, so made the said and over the proprietors, n premises.lastaforesaid.”

I do not in this perceive, surrender, term single expression that can in the remotest have reference to degree any property conveyed by or to matter grant, except related powers All the enumerated government. subjects manifestly relation after And such only powers. comes, “and all specification clause, particulars the general other the powers, authorities, and of and concerning privileges the government;” that the necessarily subjects implying specified related to the powers of and the government; acceptance the queen she manifestly limits the surrender to such powers; accepts the said so surrender- of said powers government the. made in and over the premises.

If there was in the which could. any thing used, here language SUPREME COURT. ú, et render the least doubtful the and degree object purpose of this

surrender, the memorials of the proprietors, the correspond on the which took referred to place ence on the subject argument, as collection contained of Leaming Spicer,, must re that, doubt, move all the surrender was confined show exclu to the government, intended to sively powers operate, such as a but as a .only surrender confirmation powers, of all the soil and and title to right private-property proprietors. must so, right And if depend proprietors’ upon power of claimed in the king premises, and the grant con it does what embrace. charter, And, struction I. show, the settled endeavoured uncontradicted law, of the common had the king principles j)ower grant the land under the water-of' a navigable river; and, such grantee carries with to the all grant it private property of which the land is to the subject susceptible, jus publicum. That the soil carries with it a necessarily several which is fishery, utterly exclusive with the incompatible fights of a- common and which of course can no fishery, form the jus and that publicum; grant in question of Charles the York, to the Duke of all conveyed private Second soil which could be conveyed king; which rights, by sundry mesne conveyances, became vested in the proprietors of East New from them lessor Jérsey, plaintiff. And I can discover nothing authorities giving countenance to the idea that the held the king covered land waters aof river as navigable trustee, a tenure or.by different from that-by he held the I land. And must dry again repeat, if the held such lands as trustee for the benefit of all his subjects, and inalienable as I private am unable property, to dis cover on what the state ground of New can hold the Jersey land trust, such and can assume to discharged of it-to dispose and exclusive use of individuals. If a trust estate was. in the king for the béneñt his subjects, upon Revolution, the government.- of New the trustee in the Jersey place became of the king, and the trust government, devolved sucn became as land inalienable in the of New Jersey as in must be bound to the hands state hold king, trust, which, contended, embraces subject all such lands 1842, TERM, 433 ét al. v. [Martin the the waters, of in fishery for dredging right and.

a common the and if waters; in the land be so, covered this oysters no in the a state, can without breach certainly of there the citizens of of such trust, Jersey New deprive these grounds convert oyster and and' right, exclu private, of' individuals. use sive is in in case, my nothing judgment,

íhere showing usage state which either proprietors-have in of' directly abandoned relinquished of any right implication property .or- under the charter derived of Charles the Second. exercised the state in ferries, the authority granting All bridges, rail-roads, are the &c., and of exercise powefs turnpikes^ vested over the government private for public uses, and property of the of powers formed surrendered by Queen it is since and Anne; only decision in proprietors that the v. of the Mundy,, right Arnold denied, waters in has been ás- Jersey lands and under individuals;, sümed the state to the same even in grant has been- done- cautiously, such cases it apparently with In two-cases of the hesitation referred state. fight the 8th Burden, to N. on of .No- argument, a'grant ,25th and to on the vember, 1836, Aaron Ogden, January, is a-mere water, release 18,37, land under pf been in- habit but the state; claim proprietors'have quit the time of the land the.water from for making grants surrender, Queen down, tp 1820, and-numerous year Anfie argument. to oh the were grants such instance's of referred there; however, is in fishery, the right my With respect, a.marked-distinction,botbrinfeason authority, judgment ,to floating-fish, relation- between arid local connected The- is entirely for oysters. dredging latter but other aré oysters, There natural'beds of the soil.' oysterfe. soil, adapted there is-a peculiar growing places fike other hand They cultivatedby planted man holds earth; the books many clearly cases productions as distinct distinction,and oyster fishery such speak up case 5 and in the fish, 2814; Rogers Burr. floating Allen, v. expressly Camp. others Rep. distinction It was an action trespass breaking entering taken. Q XVI.—3 Vol. SUPREME COURT. W et al. addell.'] several oyster river, Burnham fishery plaintiffs The defence set fishing dredging was that oysters. up river, locus in was a quo in.which all the navigable king’s had to fish and dredge subjects oysters; evidencé was that all showing introduced who chose had been accustomed to fish in Burnham river for all sorts of fish without floating and was contended that a interruption; entire, was fishery it had been proved that it was lawful for all the king’s fish, catch subjects floating so they might dredge for lawfully Heath, Justice, But oysters.’ otherwise, and said ruled a fishery divisible;, part may abandoned, another part value may more preserved. be entitled to public may catch fish floating river Burnham, but it no means fol- lows that justified in dredging oysters, may still remain private property: a new although trial was granted another point in the case, the doctrine above stated was not at all impugned Court-of King’s Bench.

Upon whole, I am of opinion the judgment Circuit Court to be ought affirmed.

Case Details

Case Name: Martin v. Lessee of Waddell

Court Name: Supreme Court of the United States

Date Published: Feb 18, 1842

Citation: 41 U.S. 367

Court Abbreviation: SCOTUS