Lead Opinion
delivered the opinion of the Court.
This cáse -is brought here by writ of error, from the Circuit Court of the United.States, for the district of. New Jer-sey. It was fully argued at the last term. But it was not then decided,
■ The questions before us arise upon an action of ejectment, in*' stitiited-by the defendant in error, who was the plaintiff in the Court below, to’ recover one hundred acres of land, covered with water, .situated in the township of Perth Amboy, in the state of New Jérseyi ■ At the trial iii the Circuit Court, the. 'jury found a special verdict, setting forth, among other things; that the land claimeu lies beneath the. navigable waters of the Raritan river arid bay, where the tide ebbs, and flows.. Arid it appears'that the' principal matter in dispute, is the right to-the' oyster fishery in thé .public rivers and bays.of East New Jersey.
-, The plaintiff makes title under the charters granted by. Charles the Second to his brother the Duke of York, in 1664 and 1674, for’ the purpose of enabling hipa to plant a colony on this continent. • The last-mentioned grant is' precisely .similar to the former in every respect, and was made far the purpose of removing doubts which had then arisen as to..fhe validity of the-first.
The boundaries in the two chartersi are the same, and'they embrace the" territory which now forms the state of New Jersey, The .part of this territory, known,'as East New Jérsey, afterwards,. by"sundry deeds and conveyances,.'which it is not- necessary to enumerate, was trarisferred to twenty-four persons, who were -called the proprietors of East New Jersey; who by the terms .of the grants were invested, within the portion of the. territory conveyed to them, with'all. the rights of property and government which' had been originally conferred on the Duke of. York bythe letters patent of the king. Some serious-difficulties, however, took place in - a short' time between these proprietors and- the British authorities; and after some negotiations upon-the' subject,they, in-1702, surrendered tó the crown all. the powers of government, retaining their rights of private .property.
The defendant in error claims the land, covered.with water, mentioned in the declaration, by virtue of a ouryey .made in 1834,
The point in dispute between the parties, therefore, depends upon the construction and legal effect of the letters' patent to the Duke of York, and of the deed of surrender subsequently made by the proprietors.
The letters patent to the duke included a very.large territory, extending along the Atlantic coast from the river St. Croix to theDelaware bay, and containing within it many navigable rivers, bays, and arms ol the sea; and after granting the tract of country and islands therein described, “together with all the lands, islands, soils, rivers, harbours, mines, minerals, quarries, woods, marshes, waters, lakes, fishings, hawkings, huntings, and fowlings, and all other royalties, profits, commodities, and hereditaments to the S8 id several islands, lands, and premises belonging and appertaining with their and every of their appurtenances,- and all the estate, right, title, interest, benefit, and advantage, claim, and demand of the king, in the said land and premises;” the letters patent proceed to confer' upon- him, his heirs, deputies, agents, commissioners, and assigns, the powers of government with a proviso that the statutes, ordinances, and proceedings, established by his authority should " not be contrary to, but as nearly as might be, agreeable to the laws, statutes, and government of the realm of England; • saving also an appeal to the king, in all cases, from any judgment or sentence which might be given in the colony, and authorizing the duke, his heirs and assigns, to lead and transport out of any of the realms of the king to the country granted, all such and so many, of his subjects or strangers not prohibited, or under restraint, who would become the ‘ loving subjects’ of the king, and live under, his allegiance, and who should willingly accompany the duke, his heirs and assigns.’’
The right of the king to make this grant, with all of its prerogatives and powers of government, cannot at this day be ques
• The English possessions in America were not claimed by right of conquest but by right, of' discovery. For according to the principles of international law, as then understood by the civilized powers of Europe, the Indian tribes in the new world were regarded as mere temporary occupants of the soil, and the absolute rights of property and dominion were held to belong to the European nation.by which any particular portion of the country was first discovered. Whatever forbearance may have been sometimes practised towards the unfortunate aborigines, either from humanity or policy, yét the territory they Occupied was disposed of by the governments of Europe at their pleasure, as if it had been found without inhabitants.. The grant- to the Duke of York, therefore, was not of lands won by the sword; nor were the government or laws he was authorized to establish intended for a conquered people.
The country mentioned in the letters patent, was held by the king in his public and regal character as the representative of the nation, and in trust for them. The discoveries made by persons acting under the authority of the government were for the benefit, of the nation; and the crown, according to the principles of the British constitution, was the proper organ to dispose of the public domains; and upon these principles rest the various charters-and, grants of territory made on this continent. The doctrine upon this subject is clearly stated in the case of Johnson v. M Intosh,
This being the principle upon which the charter , in .question was founded, by what rules oughv it to. be construed ?
We do not propose to meddle with, the point which was .very much discussed at the bar, as. to the power of the king since Magna Charta to grant tó a subject a portion of the soil covered by the navigable waters of the kingdom, so as to give rim an immediate and exclusive rignt of fishery either for shell fish or' floating fish within the limits of his grant. The question is not free, from' doubt, and the-authorities referred to in the . English books cannot perhaps be altogether reconciled. But from the opinions expressed by the justices of the Court of King’s Bench, in the case of Blundall v. Catterall, 5 Barn. and Ald. 287, 294, 304, 309; and in the case of The Duke of Somersett v. Fogwell, 5 Barn. and Cress. 883, 884, the question must be regarded as, settled in England .against the right of the king since Magna Charta to make such a grant. ■ The. point does .not, however, arise in this case'unless it-shall' first be. decided that in the grant to the -Duke of York the king intended to sever the bottoms of the navigable waters from the. prerogative powers of government, conferred by the same charter; and to convert them into mere franchises in the'hands' of a subject, to he held and used as his private property. And we the more willingly forbear fo express an .opinion,-on this subjeot, because it has ceased to be a matter of.much interest in the United States. For when the Revolution took place, the people of each state became themselves sovereign-; ap.d in that character hold the absolute right to all their navigable waters -and the soils under them for-their-own conpnon use, subject -only to the, rights since surrendered by the Constitution to the general -government.. A grant made by- their authority must therefore manifestly-be tried and determined by different principles from- those, which Apply to 'grants of- the British crown,
Neither is-it necessary to examine the many casés whieh have been cited in the argument on both sides, to show the degree of strictness with which grants of the king ate to be construed. The decisions and authorities referred to; apply more properly to a grant of some prerogative right to an. individual to be held by him as a franchise, and which-is intended to become private property, in his hapds. The dominion and property in navigable waters, and in the lands under them,, being held by the "king as a public trust, the grant to an individual of an exclusive fishery in any,portion of it, is so much taken from the common fund intrusted to. his care for the common benefit. In such cases, whatever does not pass by the grant, still remains in'the crown for the benefit and advantage of the whole community.' Grants of that description are therefore construed strictly — and it will not be presumed that he intended to part from any portion .of the public domain, unless clear'.and, especial words áre used, to- denote it-But in the-case before us, the rivers, bays,, and arms of the, sea, and all prerogative rights within the limits of the charter, undoubtedly passed to the Duke of York, and were intended to. pass, except, those saved in the letters patent. The words used' evidently show this intention; and there is no room, therefore, for the application of the rule above mentioned.
The questions upon this charter are .very different ones. They are: Whether the dominion and propriety in the navigable waters, and in the soils under them, passed as a part of the prerogative rights annexed to the political powers conferred on the- duke ? Whether in his hands they were intended to be a truss- for the' common use of the new community about to be established'; or private property to" be parcelled out and/sold to individuals, for his own benefit And in deciding' a question like this. w.e must not look merely to the strict technical meaning of the words of the ietters patent. The laws and institutions of England, thp history of the times, the object of the charter, the contemporaneous construction given to it, and the usages under it, for-the century and more'which has since elapsed, are all entitled .to consideration and weight. It is not a deed conveying private property to .be interpreted by the rules applicable to cases of that description.
Taking this rule for our. guide, we can entertain no doubt as to the true construction of these letters patent. The object in view appears upon the face of them. They were made for the purpose of enabling the Duke of York to establish a colony upon the newly discovered continent, to be governed, as nearly as circumstances would permit, according to the laws and usages of England ; and in which the duke, his heirs and assigns, were to stand in the place of the king, and administer the government according to the principles of the British constitution. ' And the people who were to plant this colony, and to form the political .body over which he was to rule, were subjects of Great Britain, accustomed to be governed according to its usages and laws,
It is.said by Hale in his Treatise de Jure Maris, Harg. Law Tracts, 11, when speaking of the navigable waters, and the sea on the coasts within the jurisdiction of the British crown, “that although the king is the owner of this great coast, and, as a consequent of his' propriety, hath the primary right of fishing in the sea and creeks, and arms thereof, yet the common people of England have regularly a liberty of fishing in the sea, or creeks, or arms thereof, as a public common of piscary, and may not, without injury to their right, be restrained of it, unless in such places, creeks, or navigable rivers, where either the king or some particular subject hath gained a propriety exclusive’ of that common liberty.”
The principle here stated by Hale, as to' “ the public. common of piscary” belonging to the common people of England, is not questioned by any English writer upon that subject. The point upon which different Opinions have been expressed, is whether since Magna Charta, “ either the king or any particular subject can gain a propriety exclusive of the common liberty.” For, undoubtedly rights of fishery, exclusive of the common liberty, are at this day held and enjoyed by private individuals under ancient grants. ’ But the existence of a doubt as to the right of the king to make such a grant after Magna Charta, would of itself show how fixed has been the policy of that government on this subject for the last six hundred years; and how carefully it
This opinion' is confirmed by referring ¿o similar. grants for other tracts-pf cptintry upon this continent, made, about the same period of. time. Various other charters for large territories on the Atlantic coast, Were granted by different monarchs of the Stuart dynasty to different persons, for the .purposes' of settlement and colonization, in which the powers of government were united with .the grant of-territory. Some of these charters very nearly resembled in. every respect, the one now in controversy; and none of them, it is believed, differed materially from it in the terms in Which the bays, rivers, and arms of the sea, and the soils under them, were conveyed to the-grantees. Yet, in no one of. these cólonies.has the soil under its navigable waters, and the rights of fishery for shell-fish or floating fish, beén¡ severed'.by.the letters patent, from the powers of government. .In all of them, from the time of. the settlement to .the -present day, the previous habits and iisages'of the colonists have been respected, and they-have been accustomed toenjoy in common, the benefits and advantage of the navigable waters for the same.purposes, and to the same extent, that, they have been used and enjoyed for centuries in England. Indeed,-, it could not well have been otherwise; for the men who first formed the English settlements, could not have been expected to encounter the many hardships that unavoidably attended their 'emigration to the new world, and to people the banks Of its,,bay9 and.fivers if the land under the water at their very doors was.liable to immediate appropriation by another as private property; and the settler, upon the fast land-.thereby excluded from its enjoyment, and una ole to take a; shell-fish from its bottom, or fasten there a stake, pi even bathe, in. its waters without; becoming a trespasser ffpoh the "rights of another. The usage in New- Jersey has,-in this respect, from its Original settlement conformed to the practice Of the other chartered colonies. And it would require very plain lángt ge in these lettérs patent to persuade us . thaf the public and corhinon right of fishery in navigable waters, which has been so liong and so careMly guarded in England, and whieh was preserved in every other cólpny founded on the Atlantic, bórdem, was intended; iá this one instance, to be taken away. But we see nothing, in the charter to require this conclusion.
We give the words of the surrender as found by the special verdict, and they are broad enough to cover all the- jura regalia which belonged to the proprietors. They yield up “all'the powers, authorities, and privileges of and concerning the government of the province;” and the right in dispute was one of these authorities and privileges. No words are used for the purpose of withholding from the crown any of its ordinary and well-known prerogatives. The surrender, according to its evident object and meaning, restored them in the same plight and condition in which they originally came to the hands of the Duke of York. Whatever he held as a royal or prerogative right, was restored, with the political power to which it was incident. And if the great right of dominion and ownership in the rivers, bays, and arms of the sea, and the soils under them, were to have been severed from the sovereignty, and withheld from the crown; if the right of common fishery for the common people, stated by Hale in the passage before quoted, was intended to be withdrawn, the design to make this important change in this particular territory would have been clearly indicated by appropriate terms; and would npt have been left for inference from ambiguous language.
The negotiations previous to the surrender have been referred to, in order to influence the construction of the deed. But whatever propositions may have been made, or ’ opinions expressed before the execution of that instrument, the deed itself must be-regarded as the final agreement between the parties; and. that deed, by its plain words, re-established the authority of the crown, with all of its customary powers and privileges. And when the people of New Jersey took possession of the reins of government, and took into their own hands the powers of sovereignty, the prerogatives and regalities which before belonged either to the crown or the parliament, became immediately and rightfully vested in the state.
This construction of the surrender is evidently the same with that which it received from dll the parties interested at the time it was executed. For it appears by the history of New Jersey,
-The effect of this decision by the State Court, has been a good deal discussed at the bar. It is insisted by the plaintiffs in error that, as the matter in dispute is local in its character, and the con-' troversy concerns only fixed property, within the limits of New Jersey, the decision- of her tribunals ought to settle. the construction of the charter; and that the Courts of the United States are bound to follow it. It may, however, be doubted, whether this case'falls within the rule, in relation to the'judgments of State Courts when expounding their own constitution' and laws.
The question here depends, not upon the meaning of instruments framed by the people of New Jersey,- or by their authority, but upon charters granted by the British crown; under which certain rights are claimed by the state, on the one hand, and by
Independently, however, of this'decision of the Supreme Cburt of New Jersey, we ,are of opinion-that the.proprietors are not entitled to the'rights’in question; and the judgment of the Circuit Court must, therefore, be reversed.-
Dissenting Opinion
The, premises hi question in this case are a mud-flát covered by the waters of the hay of Amboy, in the state of New Jersey. The'cause comes up- on facts found by a special verdict in the Court'below; by Which it appears that the lessors, of the .plaintiff produced upon the trial a regular deduction of title from Charles the Second down to" themselves,, and the' premises iñ question are admitted to be-within the grant. And'the general question in the case is whether this -mud-flat passed under the grant, and in- virtue of the -several conveyances; set out in the special verdict, became vested in the proprietors of New Jersey,as private property. The opinion of-’a majority of. the Cpiirt is against this right, in which opinion, however, I cannof coheur, and shall briefly assign the reasons upon which .my opinion rests.
Some objections have been.made-to the'right of maintaining
A majority of the Court seem to have adopted the'doctrine of Arnold v. Mundy, decided in the Supreme Court pf New Jersey, 1 Halst. 1, in which it' is held,.that riavigable rivers, where the tide ebbs and flows, and the ports, bays, and coasts of the sea, including both the waters and the land under the water, áre common to the people of New Jersey; and that, under the.grant'b'f Charles the Second to the Duke of York, alfthe-rights which they call royalties passed to tjheiduke as governor of the province,.exercising the royal authority, arid not as proprietor of the soil; but that he' held them as trustée fpr the benefit of all settlers in the province, and tha: 'fee proprietors, did riot acquire any such'right to the soil; -that they would grant a several fishery; and that no person who plants a bed of- oysters in a navigable river, has such property in the' oysters as to enable him' to maintain an action of trespass ágainst any one who encroaches upon it. And this rests on the broad proposition, that the title to the land under the water did not, and could not, pass to the Duke of York, as private property. To maintain this -proposition, it must rest on the ground that the' land under the water of a navigable river is not the subject of a private right; for it can be conveyed by words, the grant in the present case is broad enough to pass the title to the land in question.
■ It is worthy of observation that the course of New Jersey in relation to this claim is hardly consistent with her pretensions. In the case of Arnold v. Mundy the chief justice says, upon the Revolution all these rights became vested in the people of New
If this be the received doctrine in New Jersey in relation to the navigable waters of that state, and the oyster fisheries, they remain common to all the citizens of New Jersey, and never can be appropriated to anyprivate or individual use, and all laws having such object in view must be utterly null and,void; and it is difficult to perceive how the law of New Jersey; found by the special verdict, can be sustained. This act,declares- that the shore and land covered with water' may be set apart and laid out by commissioners for the purpose of growing and planting oysters thereon, reserving such parts as might be judged necessary for public accommodation yprovided. that nothing in the said act contained should authorize'the commissioners to present any obstruction, or cause any injury to the navigation'of the said, sound and river, or to any’, fishery or fisheries, therein. • Here the legislature treat these flats, in all respects as land, to be used for planting and growing oysters; and for- the use of which a,re venue is derived to the state, by the payment of a rent reserved. It is not the use of the water for'any public purpose that this law contemplates; bufan exclusive right to. the use of the land under the water, in, contradistinction to the use of the water for purposes of .navigation; and that this law is so to be considered is manifest from the proviso that no obstruction should be made to the fishery.or fisheries therein; and here is a manifest distinction made between á fishery and an oyster-bed. For if it had been ■understood that the fisheries included oysteries, the enacting clause and the proviso would present a glaring inconsistency. The enacting clause authorizes the setting apart the oystery to exclusive private use, when by the proviso, no obstruction is to
That the title to land under a navigable stream of water must be held subject to certain public rights, cannot be denied. But the question still remains, what are such public rights? Navigation, passing and repassing, are certainly among those public rights. And should it be admitted that the right to fish for float.ing fish was included in this public right, it would not decide the present question. The premises in dispute are a mud-flat; and the use to which it has been and is claimed to be applied is the growing and planting of oysters. It is the use of land, and not of water, that is in question. For the purpose of navigation, the water is considered as a public highway, common to all; like a public highway on land. If land over which a public highway passes is conveyed, the soil passés, subject to that use; and the purchaser may maintain an. action for an injury to this soil not connected with the use; arid whenever it ceases to be used as a • public highway, the exclusive right of the owner attaches: so' with respect to the land under water, the public use for passing and repássing, and all the purposes' for which a public way may be • used, are open to the public'; the owner, nevertheless, retaining all. the'rights and benefits of the soil, that may not impede or interfere with the use as a public highway. Should a coal-mine, for instance, be discovered under such highway, it would belong to the' owner of the soil, and might be used for his benefit;. preserving, uriimpaired, the public highway. So with respect to an oyster-bed, which is local, and is attached, to the soil. It is not the water that is over the beds that is claimed; that is common, and .may be used by. the .public; but the use of the soil by the owner.which is consistent with the use of the water by the public,
The case of Brown v. Kennedy, 5 Har. & Johns. 195, is fully to this point. The question there related to the right to the soil in the bed of a navigable river, which had been diverted to a- canal; and it was held, that the property in the soil covered by' the water was vested in the lord proprietary, by the charter .of Maryland. That by the common law, the right was in the king, and he might- dispose of it sub modo. That the property in the soil may be granted, subject to the jus pqblicum. That by the terms of the'charter to Lord- Baltimore, they clearly passed the property in the soil covered by any waters within the limits'of the charter. And if the bed of the river had not been conveyed away, it would have remained -in the proprietary; and if an island had sprung up, it would have been his; or if the bed of the river had been left bare, it would be his, as the jus publicum would be destroyed.
The rules'and principles laid down by Lord Hale, as we find them in Hargrave’s Law Tracts; are admitted as containing the correct common law doctrine as to the rights and power of the king over the arms of the sea and navigable streams of water. We there find it laid down, that the King of England hath a double right in the sea, viz.,' a right of jurisdiction, which he ordinarily exercises by his admiral, and a right of propriety or ownership. Hargrave, 10. The king’s right' of propriety, or ownership in the sea and soil thereof, is evinced principally in these things that follow.
The right of fishing' in the sea, and the creeks, and arms thereof, is originally lodged in the crown; as the right of depasturing is originally "lodged in -the owner of the coast whereof he is lord, or as the right of fishing belongs to him that is the-owner of a private or inland river. But though the king is the owner of this
1. By the king’s charter or grant: and this is without question. The Icing may grant fishing within some known bounds, though within the main sea,' and may grant the water and soil of a navigable river; (17) and such a grant (when.apt words are used) will pass the soil itself; and if there shall be a recess of the sea, leaving a quantity of land, it will belong to the grantee. The second mode is by custom or prescription. There may be the right of fishing without having the soil, or by reason of owning the soil, or a local fishery that arises from ownership of the soil. (18) That, de communi jure, the right of the arms of the sea belong to the king; yet a subject may have a.separate right of fishing, exclusive of the king and of the common right of the subject. (20) But this interest or right of the subject must be so used as not to cccasion a common annoyance to the passage of ships or boats; for that is prohibited by the common law, as well as by several statutes.
For the jus privatum that is acquired to the subject either by patent or prescription, must not prejudice the jus publicum, wherewith public rivers or arms of the sea are affected for public use, (22)- — as the soil of an highway in which, though in point of property, may be a private man’s freehold, yet it is charged with a public interest of the people, which may not be prejudiced or damnified, (36).
TI.ese rules, as laid down by Lord Hale, have always been-considered as settling the law upon the subjects to which they apply, and have been understood by all elementary writers as governing rules, and have been recognised by-Courts of justice
I se'e nothing to countenance the distinctions set up, that the king holds these subject as trustee, any more than he does the dry land; or that he cannot convey them, discharged of the right of common fishery. There is no reason for such distinctiori with respect to land under water. The true rule on the subject is, thatprima facie a fishery in a havigable river is common, and-hé who sets up an exclusive right, must show title, either by grant or prescription. This is the doctrine of the King’s Bench, in’ England, in the case in 4 Burr. 2163. It was an action of trespass for breaking and entering the plaintiff’s close, called the river.Severn; .and the defence set up was, that it was a navigable river, andan arm of the sea, wherein every subject has a right to fish; and that an exclusive right cannot be maintained by a subject in a river that is an arm <5f the sea, but that the general right of fishing is common-to all. Bui this doctrine was not "recognised by the Court. Lord Mansfield said, the rule of law is uniform!. In rivers not navigable the proprietors of the land have the right of fishing on their respective- sides,.and it generally extends ad filum'medium aquae; But in navigable rivers, the proprietors of the land on each side have, it not. The fishery is common. ■ It is priiM facie in the king, and is public. If any one claims it exclusively, he must show a right.- If he can show- a right by prescription, he may then exercise an exclusive right; though the presumption is against him, unless he can prove such a prescriptive right. Here it is Claimed and found.. It is therefore consistent with all the cases, that he may have an exclusive .privilege of fishing, although it is an-arm of the sea, such a right shall not be presumed; but the contrary, prima facie; but it is capable of. being proved,, and must
In the argument of thté case, the Gounsel on the part' of the defendant referred to the case of Warren v. Mathews, as reported in 6 Mod. 73, wheré it is said, every subject of common • right may fish with lawful-nets, &c., in a navigable river, as well as in the-sea; and the king’s- grant cannot bar them thereof; and this case has been much .relied on in the .argument of the case now before the Court. ' But this report of the case in 6 Mod. 73 Is clearly a mistake. It is the only cáse to be found in which the broad proposition nere’stated is recognised, that the king’s grant cannot bar the subject of .the common right-of fishing. And in the report of the same case, 1 Salk. 357, the case as stated is, that one claimed solam piscariam, in the fiver Ex, by a grant from the crown. And, Nott, Chief Justice, said, the subject has a right to. fish in all navigable rivers as he has to fish in the sea; and a quo warranto ought to -be granted to try the title of this grantee, and the validity of his-grant. Lord Nott, here, no doubt,, meant to speak of the-. prima facie right of the subject.' For if he intended to say that .no such exclusive right could be given by grant from the king, it would be absurd to issue a quo warranto to try the title and validity of the grant, if by no' possibility a valid grant -could be made. At all events, it is very certain that the King’s Bench, in the case of Carter v. Murcot, did not recognise the doctrine of Warren and Mathews, as reported in 6 Mod. 73. And under these circumstances, it is entitled to no weight in the-decision of the case now before the Court.
It is unnecessary to refer to the numerous, cases in the English books on this subject; the doctrine as laid- down in the case of
In' the case, of Johnson v. M'Intosh,
If, then, according to the principles of the common law,, the king had the power to grant the soil under the waters of a navigable stream, where the tide ebbs and flows; and if such grant of soil carries with it the right of a several fishery,, to the exclusion of .a public use, the remaining inquiries are whether the grant of Charles the Second to the Duke of York, in the year 1664, did convey the premises in question ; and if so, then, whether this right was surrendered by the proprietors of New Jersey to Queen Anne, in the year 1702.
This charter to the Duke of York is one containing not only a grant of the soil, but of the powers of government. This Court, in the case of Johnson v. M'Intosh, in noticing the .various charters from the crown, observe, that they purport to convey the soil and right of dominion to the grantees. In .those governments which were denominated royal, where the right to the soil was not vested in individuals, but remained in the crown, or was vested in the' colonial government, the king claimed and exercised the right of granting the lands. Some of these charters purport to convey the soil al5ne, and in those cases in which the powers of .government as well as the soil are conveyed to individuals, the crown has always acknowledged itself to- be bound by the grant; and in some instances, even after the powers of government were revested in the crown, the title of the proprietors of the soil was respected. The Carolinas were originally proprietary governments; but in 1721 a revolution was effected by the people who shook off their obedience to the proprietors, and declared their dependence immediately on the crown, and the king purchased the title of those proprietors who were disposed to sell. Lord Carteret, however:, who was one of the proprietors, surrendered Ms interest in the government, but retained his title to the soil; and thdt- title' was. respected till the Revolution, when it was forfeited-by the laws of war.
This shows the light in which these charters, granting the soil, were considered by this Court. That they conveyed an absolute
,It is unnecessary to notice particularly the-various charters and mesne conveyances set out in the special verdict.' It was admitted on the argument, that the premises in question fall within these conveyances; and vested in the proprietors of New Jersey all the right and title both of soil and the powers of government, which passed to the Duke of York under the charter of Charles the Second. The terms employed in the description of the rights con■veyed, are of the most comprehensive character, embracing the land, soil,.and waters. After a general description and designation of the territory embraced within the charter, and - comprehending the premises in question, it adds, " Together with all th’e lands, islands, soils, rivers, harbours, mikes, minerals, quarries, woods, marshes, waters, lakes, fishings, hawkings* huntings, and fowlings, and all other- royalties, profits, commodities, and hereditaments, to the said several islands, lands', and premises, belonging and appertaining with all and every of their appurtenances, and all our estate, right, title, interest, benefit-, advantage, claim, and demand of, in, or to the said lands, and premises, or. any part or parcel thereof, and the reversion and reversions; remainder and remainders thereof, to have and to hold all and singular, the premises hereby granted, or herein' mentioned, unto ouf brother ' James, Duke of York, his heirs and assigns forever; to be holden of us our heir and successor in free and. common socca ge.” If these terms are not broad enough to include every thing susceptible of being conveyed, it is difficult to conceive what others could be employed- for that purpose. The special verdict: after setting out the mesne conveyances, by which the.title is deduced down to- the proprietors of New Jersey, sets out a confirmation of the title in the proprietors by Charles the. Second, as follows, "And the jurors on their oath aforesaid further say, that the said Charles the Second, afterwards, to wit, oil the' twenty-third day of November, in the year of our Lord-one thousand six hundred
Did- the proprietors, then, by the surrender to Queen Anne, in the year 1702, relinquish any rights of private property in the soil derived under the charter of Charles the Second? I think it is very clear that they surrendered nothing but the mere powers of government granted by the charter, retaining unaffected in. any manner whatever the right of private property.
The" special verdict states this surrender as follows: “That on the fifteenth day of April, in the year one thousand seven hundred and two, the said twenty-four proprietors and the other persons, in whom, by sundry mesne conveyances and assurances in the law, the whole estate* right, title, and interest' in the said province of East New Jersey, were vested at the said last-mentioned date, as proprietors thereof, by an instrument in writing under their hands and seals, bearing date the same day and year last aforesaid, did for themselves and their heirs surrender and yield up unto Anne, Queen of England, &c., and to her heirs and successors, all the powers and’ authorities in the said letters patent granted, to correct, punish, pardon, govern, and rule all or any of her said majesty’s subjects or others who then were, as inhabitants, or thereafter might adventure into, or inhabit within the
I do not perceive, in this surrender, a single term or expression that can in the remotest degree have any reference to the private property conveyed by the grant, or to any matter except that which related to the powers of government. All the enumerated subjects manifestly have relation only to such powers. And after this specification of particulars comes, the general clause, “and all other the powers, authorities, and privileges of and concerning the government;” necessarily implying that the specified subjects related to the powers of government; and the acceptance by the queen manifestly limits the surrender to such powers; she accepts the said surrender- of the. said powers of government so made by the proprietors in and over the premises.
If there was any thing in the language here used, which could.
íhere is nothing in the case, in my judgment, showing a usage in the state by which the proprietors-have either directly of' by implication relinquished .or- abandoned any right of property which they derived under the charter of Charles the Second. All the authority exercised by the state in granting ferries, bridges, turnpikes^ and rail-roads, &c., are the exercise of powefs vested in the government over private property for public uses, and formed a part of the powers of government surrendered by the proprietors to Queen Anne; and it is only since the decision in Arnold v. Mundy,, that the private right of the proprietors to the lands under the waters in New Jersey has been denied, and ássümed by the state to grant the same to individuals;, and even in such cases it has been- done- cautiously, and apparently with hesitation as to the fight of the state. In the two- cases referred to on the argument, of a'grant to N. Burden, on the 8th of .November, 1836, and to Aaron Ogden, on the ,25th of January, 18,37, of land under the water, the grant is a-mere release or quit claim pf the state; but the proprietors'have been in- the. habit of making grants for land under the. water from the time of the surrender, tp Queen Anfie down, to the year 1820, and-numerous instance's of such grants were referred to oh the argument.
With respect, however, to the right of fishery, there; is in my judgment a.marked-distinction,botbrinfeason and authority, between the right in relation- ,to floating-fish, and the right of dredging for oysters. The- latter is entirely local arid connected with the soil.' There aré natural'beds of oysters, but in other places there is-a peculiar soil, adapted to the growing of oysterfe. They are planted and cultivatedby the hand of man fike other productions of the earth; and the books in many cases clearly holds up such a distinction,and speak of the oyster fishery as distinct from that of floating fish, 5 Burr. 2814; and in the case of Rogers and others v. Allen, Camp. Rep. 309, this distinction is expressly taken. It was an action of trespass for breaking and entering
Upon the whole, I am of opinion that the judgment of the Circuit Court ought to be affirmed.