*1 (cid:127)80
Bundlе et al. v. Delaware and Baritan Company. Canal Eastern District Louisiana, of and was counsel. argued On by consideration whereof, it is now here ordered and adjudged by that, this said Circuit judgment Court in this cause be, and the same is reversed,, costs, with and that hereby, this be, cause and the same is to the said hereby,-remanded Court, Circuit directions to enter with for David judgment B.. Herman;the in error. plaintiff Georg eRundle Griffiths, William Trustees Estate John Savage, deceased, Plaintiffs Error, the Company. and Raritan Canal Bjr law river, public navigable tic the Biver Delaware is a by held joint sovereigns its public. trust for the owners, State, Biparian any right no title to the to-divert its waters, unless license from the States.. revocable, license is subjection and in superior the State Such to the State, of the public improvements, divert the water for directly, either or by a cor- poration created purpose. for that proviso provincial The Pennsylvania Jersey, acts and New does not operate grant as a of the of the waters of the Hoops usufruct river to Adam. license, assigns, only his as a or toleration his dam. ... As,"by against the laws of own .plaintiff remedy have no could a cor- poration purpose canals, authorized take the whole watеrs river for the so, improving navigation, or created neither he against corporation can sustain a suit purpose, for the same part who have taken waters. plaintiff's being The but tenants at sufferance in the usufruct the water to the two. common, States who own the river as tenants in question arc not in a condition to the relative of"either to use its waters without consent of the other. licensee, This case is not private emolument, decide whether a a intended first can support an against both, action who, sovereign later licensee of either pri- for. .or diverts injury the water vate-purposes, of the first. case was error, from the writ Circuit brought up; by This . Court of the United States 'for the- District New Jersey. of. The facts case in the set forth in the opinion court.. Yroom, It was Mr. and Mr. argued Ashmead print by in error, and Mr. John M. Read plaintiffs orally, defendants error. was also .There printed argument -upon the same side, submitted himself and Green. Mr. sides, historical both contained arguments, upon accounts and New on the sub- legislation of .the River ject Delaware, various compacts'and nego- tiations It. between them. of a law impossible, report case, to transactions, these give explanation commencing beforé the ution. Those who have occasion to inves- Revo may well matter would do obtain tigate minutely; counsel their that will be All attemptéd, respective arguments. 1 852. and Raritan v. Delaware 3t al. an account of the tobe give points will in were report, made. Canal Company declaration charged having, Delaware, above the in the River works a dam Erected T. .of *2 it, and, means obstructed the the by penned up plaintiffs, of the river. waters the canal, a waters of With the 2. diverting digging the them State of into New it, river into and so leading Jersey. the streams brooks which thereto- 3. off’ With cutting Delaware, the to said River fore had been tributary prevent- it. into them from flowing ing the. waters, taken from With the the 4. using supply canal, to create a water which said power, supply manufactories, establishments, and other mills, various the -water, for sake gain. the demurrer of the court the being The judgment action, the counsel for had no right plaintiffs plaintiffs this- court assumed as. the which grounds upon following decision, founded its which seve- the court below grounds they contested. rally and of below, court which the plain- ruled points erroneous, are: complain being tiffs. which dam of Adam 1. That the Hoops authority Delaware, in the River since the has been аnd maintained kept a at 1771, license, revokable was not á grant, year at alone, and, best, for a New pleasure impunity nuisance. as the claim Adam 2. That the assignees who plaintiffs, from their cannot mills, for the diversion water .Hoops, are situated in the State Penn- because their recover, works for dama- the claim not in New Jersey, sylvania, the .rule established by must be Pennsyl- ges regulated by the one recognized rule is courts, vania opposed Court to by Supreme State of Jersey, applied New case. these in a in error similar defendants 3. That it plaintiffs question is not competent to take the waters of the Delaware for New authority Jersey, without the consent of Pennsylvania. improvements, the counsel With the first respect First Point. point, contended, error plaintiffs form, substance, were, effect, 1. That acts said legal (cid:127) acts, a a then on the arid license. commented not grant, They cited authorities: following of license or An grant, will operate by authority.given, way Thus, to its nature and intention of according in 15 parties. if a Lease, 1, Viner’s Ab. Tit. Pl. it is That said, (N.) 82 and Batitan et al. v. land, into his and to it for license me to enter a man occupy like, is a lease and shall be so or such half year, year, act of cоnfirmation of a title A Congress, (which by pleaded.” to be the acts of 1771 and least effect given 1804,) evidence of title, it a but furnishes renders higher legal only a direct, a inasmuch as it is a whereas than that fact patent, officer. Lessee Patton is the act its ministerial only Grignon’s' patent v. Dallas, ; 425 Astor, Howard, 319; Irvine, 2 Sims v. 3 Peters, 12 Lucas, Strother v. Easton, Wheaton, 476; Baldwin, at it is said case, 454, In this latter Judge page grant may opinion delivering a law, law, as well as a made undoubted, to patent pursuant law, 6 Cr. and a confirmation 128; fully, as if it contained in terms a all intents grant, and.purposes, de novo.” grant as a are to be technical 2. If the acts regarded it, license, such is not revocable granting parties license them, it a license not but executed, either of executory, or on incurred, had been faith which expenditures pre- large revocation the State vious alleged , of the act Delaware and chartering passage *3 by Canal. Raritan that, a conclusive, one authorities are clear and lieensé by s to of his' land another, man to make use for purpose requiring is, in rf permanence, expenditures effect a money, contemplating .and Thus, nature. its said and is not revocable grant, “ that, Kern, 267, 14 S. it is Rawle, Rerick v. & permission viewed else that was mill, to use water for a' or or by any thing be of unlimited dura erection, as a will parties permanent the be it should erection.itself, and survive the destroyed,
.tion
a license
a
fall into
state
Although
.executory
dilapidation.”
be. Winters.
cannot
revoked,
be
.a-license executed
may
yet
this case,
Brockwell, 8
Lord
East, 308.
Ellenborough says,
“
a
unreasonable,
he
after
that,
that
it
party .had-been
thought
obtained a
to incur
in consequence
having
led
license
expense,
the license had been
act,
that
to do an
either
another
be
to recall
that
should
entered
upon,
permitted
is decided
374, it
Waters,
Taunton,
7
license.” In
that a
v.
Taylor
bé revoked
cannot
license' granted
consideration
Law.
Com.
682,
7
v.
Liggins
Bingham,
English
287,)
Inge,
(20
‘
oral license,
father,,
’s
decides
by
-per
that where
plaintiff
bank,
a
and to make
defendant
lower
mitted the.
before
less water' than
mill, whereby
a weir above the plaintiff-is
sue
could not
mill,
plaintiff
flowed
plaintiff’s
that the
court
weir; holding
defendants
for. continuing
executed, was not countermandable
in that case, being
license
1852.
83
?>
Raritan
al.
Delaware
et.
Ruadle
So,
it.
in Wood v.
Adol.
who
Manly,
gave
&
party
by
a
it
held that
was
license to
34,
Law
Ellis,
Eng.
19,)
(39
Com.
thereon,
to take
land
was
enter
аway property purchased
and could not
be
of the consideration
purchase,
part
Paternoster,
asserts
of Webb v.
The case
151,)
revoked.
(Palmer,
is
counter-
that an executed license
not
the general principle,
the case
Kern,
Rawle,
S.
was
&
Rerick
267,)
mandable.
(14
water
considera-
license to use a
any
a
power, given
“
court said the
revocable. The
license was
tion, and
not
held
and “it
be
would
a direct
money,”
encouragement
spend
it,”
further,
the exe-
annul
all conscience
against
and that
be
enjoined;
of it would
cution-
specifically
party
be turned
not
round
whom the license was
would
co
granted
bp.
if ^muld
How very inadequate
his remedy
damages.” .
“ is
consider-
this,”
by
a case like
perceived
says
been followed
license,
which' has
by
expenditure
ing
dollars, as a
thousand
qualification.for
ten
necessary
an
be
obstinate man
it,
revoked
of- may
who
enjoyment
“—
isit
remarked
cents.”
had
not worth as
having
many
Again,
unlimited
in view an
privilege,
grantee
enjoyment
expenditure
indefinite
money,
has purchased,
of duration.”
in point
ever to be
1804, are
acts of
3. If
regarded
joint
license
as a
such
has never
license, and
as a revocable
grant,
or either
revoked
both
Stаte
legislatures.
actually
and Raritan Canal
act of
which the Delaware
the-State
contains
New Jersey,
Company
chartered
and a
will not
revocation by implication
no .such provision,
on an
inferred where so
wrong
perpetrated
great
individual.
the act char-
of New
State
Jersey, by
Admitting
intended to
Canal Company,
Raritan
tering
to Adam
revoke the
or executed- license made
Hoops,
grant
for that
those
State
him,' was incompetent
claiming
so.
do
States
two
If
act of the
joint
legislatures
or,
effect;
license,
executed
what
the same in
grant,
legal
*4
-
within
or executed license is a
the
then that
contract
grant
subse-
constitution,
the
and cannot be
impaired
meaning
87;
Peck, 6 Cranch,
Terret v.
Fletcher
quent
v.
legislation,
once
a
9
has
made
Cranch, 43.
a legislature
Where
Taylor,
a
it
as
is as
it
is an individual. Such
much estopped by
grant;
amounts
the
right
to
the
grantor,'
extinguishment-
grant
a
It is
and a contract
to reassert
Id.
not
that right.
principle
titles.
effect
that it cannot
preexisting
applicable
every grant
be con-
its
face,
on
cannot
a
conclusive
Although
grant
SUPREME GOURT.
84
Raritan,Canal
Rundle
et al. v.
arid
troverted,
the
is not in the
no
yet
thing granted
grantor,
Armas,
to the
of New Orleans
passes
grantee. City
Pеters,
224
Orleans
;
States,
New
v. United
(cid:127)86
Kundle et al. V. Karitan. river, which and that belonged public; riparian have, therefore, owners of such no exclusive to the soil or water medium, aqua. ad filum *6 These sustained all are principles fully by Pennsylvania cases down to the time, are below, which cited present also which licenses doctrine mere tolerations or exemplify on streams, in the navigable alwаys power and can withdrawn, at sovereign, moment, without any any violation of the constitutional provision. These nuisances at the were existence act passage and, of March, 1771, 9th terms, under its the commis- general it, sioners named in them abate at obliged once, as artificial obstructions for the navigation, except section, in -the 7th which the commissioners,, proviso therein same observation prohibits from or the same. The appointed, removing altering to the act of New applies Jersey year. “ But,” to use learned again language Judge low, we discover nature nothing can grant of this words toleration amounts to no more than the proviso.. present nuisance, erected, or, most, at to a previously license revocable at doctrine the cases which pleasure. we have to it full force and conclu just quoted, applies effect; sive nor can the claim plaintiff by against prescription for more the act on at him, which, best, than confers is but nuisance.” 2 Binn. ; 475 Brown v. impunity ; 3 Commonwealth, S. & R. v. Shrunk Schuylkill Naviga 273 Arthur, Co. 14 S. 4 71; Watts, 437; tion & R. Bacon v. Cou O’Connor, Watts, Wharton, 2 470; Slack, 508, vert v. 538; 8 Ball v. Co. 6 W. Coons, 101; v. & Sus S. Monongahela Nav. ; v. 9 quehanna Canal Co. Id. v. Commonwealth Wright, 9 Jr, Church, Wallace, 1 Barr, 69; v. ; Carter, 105 Fisher 1 Mayor Barr, v. 348 v. Gardens, ; Commissioners of 7 Spring Reading 201; Commonwealth, Co. v. Nav. 1 Jones, M’Kinney Monongahela W. Harris, 2 & S. 85 66; ; O’Connor Henry Pittsburg, Wallace, Jr. 1851, MS.; v. Pittsburg, 300, 301. Sept. ' if there But doubt on this it is removed subject, by any 1783, reference of 26th between two agreement April, then States of New Jersey recog- sovereign common not affected nizing any superior, provision afterwards contained ill the United States. Constitution all acts of character, 1771 were temporary the commencement them ceased operations 1783, compact War. The which Revolutionary perpetual River station Delaware, in its declared the from the operation, or New place north-west comer point, Jersey northerly, v. Rund-le al. and Raritan et river the said where the circular the State of upon boundary same, Delaware toucheth in the whole length thereof, is, and shall continue to and remain a com- breadth use,, free and benefit, mon highway, equally open of the said advantage contracting parties.” Such admits of no It is a language dispute. complete toleration, total revocation of all license or or grant any'kind erected dams or on the works any river, side of the which were nuisances ah origine. It cannot be that two or more nuisancеs supposed original saved out of the terms of the were general comprehensive and that are. to subsist to all future time as ob- compact, use of the either both stacles any manner affect the soil and works thus may in any placed waters of public. view Penn- This supported by legislation unbroken — the taken her commission- particularly ground sylvania 1817, ers recognized virtually by.those of 1829 and entered subsequent agreements *7 of States, into the commissioners both which treated these by wojrks nuisances, and as not to be disposition regarded any river, of the whether made the waters erection to be of by of canal or water dams, of or for power. supply were in fact treated as had existence. legal They a a a title claim for in- Can such company give damages upon a ? State corporated sovereign confederacy by to It is also question competent plaintiffs clearly to take the waters of the of New Delaware the for her vania. authority without consent of Pennsyl- public improvements, of vested in the The channel and waters this river are common, seen; as tenants in as we have already two either to divert can its and no one question authority first to seize but the othеr. wras waters Pennsylvania use, and her for separate portion ped has may joint property, estop- own act from' who against by Jersey, complaint this, but followed her Besides mutual consent example. events, all acquiescence. from mutual At the' presumed to river, is showm to have no-title or who any part plaintiff, it, toleration or license could at best only protect whose to him from a is not a situation dispute prosecution, or claim for diversion of its either, compensation waters, for either of public improvements purpose sovereign owners.” its GEJEB, delivered the 'the court. Mr. Justice opinion below, error, who were owners plaintiffs plaintiffs et al. Earitan Delaware of certain of Trenton, to mills Pennsylvania, ppposite city in New These mills are with water from the Jersey.' 'supplied River, means of dam Penn- Delaware from the extending shore to island to and ex- it, near lying parallel sylvania to of tide water. tending head rapids along in their title declaration, show plaintiffs, property one-Adam who had erected mill and built a Hoops, dam river to previous year year, Provinces and New passed Jersey, respectively, the River Delaware common for declaring highway pur- acts same, and and down the poses navigation up mutually ap- thereof, to commissioners pointing improve navigation whatsoever, remove obstructions authority full power any artificial; or natural fine subjecting imprisonment who should set or maintain dam or repair, any person up, any n obstruction in the same, con- provided, nothing herein tained shall or commissioners give any power authority herein, them, or lower, remove, down, throw appointed, any or in manner alter a mill-dam erected Adam impair, any in the said Delaware, River between his Esq., Hoops, plantation and an island in the said or river, Trenton; nearly opposite other mill-dam erected or in the said any persons any person act, before the nor to or in obstruct, passing any manner to the said- Adam hinder such or other Hoops, person or his or their heirs and from rais- assigns, persons,, maintaining, or the said dams or repairing respectively, ing, water taking out river use of the said said mills aforesaid, other.” waterworks erected as and none avers, The declaration these acts provincial the said his heirs enti- became Hoops, legislatures, assigns, tled. to the free and .uninterrupted privilege enjoyment the River mills,.&c., the use said Provinces, or оr from of said alteration the act diminution States now and New of Pennsylvania any person Nevertheless, under them or either of them. persons claiming *8 the that erected a dam in said river defendants above plaintiffs’ a mills, water, canal and the in- diverted dug great &e. jury, are a The defendants New chartered corporation, Jersey, “- the of a waters of canal the constructing purpose Raritan, of Delaware to the navi- those and of the improving of of the said rivers.” admit the construction gation They canal, and the pur- diversion of waters of river for that .the of demur to and set declaration, forth as causes pose, — demurrer of Penn- That-the of Province then act. legislature et al. v. Delaware and Barita#..1Canal ninth, March in the passed of our sylvania, Lord year one thousand seven hundred' and then Province.of in act seventy-one, New December Jersey, passed twenty-first, of our Lord'one thousand seven year hundred count, seventy- one, as set forth in said amended fifth do not vest in said Adam or in his heirs or Hoops, assigns, right to the use of the water of the River privilege, Delaware without alteration, diminution or or from the act of the then Province, now of New of or of the Province, then Pennsylvania, now State, or or Jersey, any person persons claiming 'either or them, or any whomsoever, person as persons averred said amended fifth count of the said declaration. also, And that it does not from the appear, said amended fifth count, entitled to the Rundle and William Griffiths are George to the use of the water of the right privilege River manner form as Delaware, have averred in the amended fifth said count of their declaration. that, And also as it from the said appears amended fifth count, the said River is a common highway public river, over which the States of navigable New Pennsylvania concurrent a and. jurisdiction, of said boundary States, these defendants insist that the acts of legislative' Province then and New in the' Pennsylvania passed Jersey, of our Lord seventeen hundred and as set seventy-one, year count, in the said amended fifth forth the were intended declare to. said River Delaware common and for highway, improving contained, thereof, and that the therein navigation provision Hoops, to the mill-dam erected Adam as the said De- River laware, did to a does not amount or grant .and conveyance said Adam his or water heirs or power Hoops, assigns, a surrender said public river, waters right .the n obstruсt the waters of the only but river said permission dam, said subjected penalties that the of the said Adam nuisance; was, right Hoops is, subordinate at assigns public legislature or pleasure either them.” demurrer On the court this below de- gave tL*? judgment is now fendants, which as error. alleged It is that the evident, extent of the aas plaintiffs rights ripa- owner, whether rian question proviso operates of a of nuisance, usufruct the waters of grant only toleration liable licénse sub- to revocation or to ordinate must paramount right, as depend laws and-customs of her own expounded by therefore, courts. a brief sketch proper, will give *9 COURT.- al. Baritan Canal et v. Delaware Bundle action of the river and the con- legislative the public history of law it, aquatic also principles affecting nected with courts of that State. and established developed rights, the well between Delaware is known boundary The River water, Below tide New Jersey. States Pennsylvania islands, crown; soil river, its belonged formerly of the co- it was vested in the water, tide proprietaries above medium aqua. ad terminous holding provinces filum —each (cid:127) succeeded to the Revolution, Since the the States have of the crown both fights Immediately proprietariеs. . Revolution, St into the after the these entered compact for the use of 1783, common highway Delaware declaring over the same. both, and jurisdiction ascertaining respective to have after this For compact, appear enjoyed thirty they years collision. When their common dispute property it, an act re- either State passed affecting they legislature the o the concurrence and consent of her. and obtained quested first was caused an act New Their dispute passed Coxe and others erect a 4, 1815, authorizing February wing for the dam, and divert the water mills and other purpose of the State of was The consent machinery. therefore called forth from the protest requested; legislature further was followed remonstrance in State. This made to A was submit the proposition following year. of their Court question Supreme respective United New After rejected by nu- Jersey. remonstrances between the merous messages’and governors were commissioners mutually appointed legislatures, mise compro- failed to the matter But to an disputes. bring settled, conclusion. The was never dispute .amicable in the river. dam remained wing the first act Jersey incorporation passed Raritan Canal which the Company, of' This act $100,000. requires bonus con- gave company of the State sent of Pennsylvania; application being her she to her consent with 'so legislature, made conditions, clogged many terms, that New refused returned accept so ended the bonus matter company; .to time. effect, Both then commissioners parties appointed pos- sible, which each State some should compact arrangement water as to divert so much authorized necessary n After for’these these canals. protracted contemplated negotiations, terms, agreed commissioners (in 1834) finally them was never ratified either compact proposed by the. party. Company^ v. Delaware Baritan et al. time, each State to itself as mean much appropriated In the *10 as its of the river suited In 1827 -waters and the purpose. diverted the River a confluent the 1828, Lehigh, afterwards, Delaware, insufficient, and that stream took finding canal,- feeders for her out of the main stream of the additional Delaware. On 4th the the February, legislature the act under which the defendants were passed incorpo- which, rated, and in have constructed the pursuance they feeder, of the dam and the suit. subject present in both river, The canals the are supplied by inti-' (cid:127) with their trade, revenues, extensively mately .connected — the while of the. river’above property general navigation n and the at wajer, tide is Trenton, rapids comparatively used at-times of the stream, fresh- being importance, only trifling spring ets, for timber down when the artificial floating not affect the do The navigation. practical diversions benefits to both from their parties, resulting great public improvements, to have convinced them that further com- appear negotiations, remonstrances, would be useless and ; unreasonable plaints, and of mutual thus, consent, tacit acquiescence necessity formal has been a more compact superseded. which the title and law The rights differs from tested, must that of materially England, plaintiffs b.e States of the most of the other Union. As .regards she has rivers, fresh-water adopted large principles case Blazer; law. In the of Carson v. civil of that State Court Supreme decided, that the rivers, such as the large Susque Delaware, never hanna and were deemed to the doc subject of the common law trines England, applicable fresh wate rstreams, but that to be treated rivers; that navigable Penn, of William never extended be grants proprietary, margin yond belonged public, have that the owners therefore exclusive to'the riparian rights aquce. soil or of such rivers ad water medium filum In Shrunk v. The Navigation Schuylkill same Company, doctrine; court Chief repeat Justice in to Tilghman, “ court, delivering opinion observes: seems Care taken, have these from the waters beginning, preserve uses, rivers for both of navigation; fishery is wisdom of now more than policy ever, striking others great improvements con- navigation, to effect templation, which, it to obstruct the flow necessary the water, some divert others to its places# course. that the true State hud would have to do things these for the public benefit, if the even rivers had been pro- private then, ; perty must been made compensation have SUPREME. and Raritan al ». Delaware Randl'e-et owners, the amount of which have been so enormous might at checked frustrated, least these noble undertakings.” the case Monongahela Navigation Company of. license, had erected his Coons, the defendant mill under given an act owners riparian by erect dams legislature (in 1803) structure, of a did not im- particular provided they the. Sic. Com- Navigation by pede navigation,” Monongahela of a them the charter granted had pursuance pany, erected back a dam in the which flowed the wa- Monongahela, mill, in the ter on the. plaintiff’s Youghiogany, greatly court, it was And Com- adjudged injured'it, liable for thus consequential were not inflicted. injury pany on plaintiff, consequent Thé speaking observe: act, That statute .1803,) (of license granted erect dams of a struc- particular owners liberty gave riparian for a nui- streams, ture, indictable navigable was, exercise of it to be attended and their sance, consequently, *11 labor. to But was liberty expense.and perpetual, with Or, of the State ? tie the is not the forever con- power up and. inferred, from nature of the license ? far the So was to trary the to abate one the of State’s from jot seeming legislature to an indictment for not a control, that it prefer agreed barely Quarter the of viewers to nuisance, on the Ses- report except a charter, a is not the But of the remission penalty sions. than a the more mitigation penal was grant nothing alleged law.” Canal v. Wright, case the Susquehanna Company The decides, that 'the State is views, the confirms preceding in the of its to have with one franchises never parted presumеd Hence a such intention. an proof conclusive absence erect owner, to a law to a a conduct license, accorded by public riparian the his River, and water upon on the dam Susquehanna to future pro- for his subject any land vision which of the own private purposes, make, the State with regard navigation may a to con- authorize river. And if .the State company owner, of such the rights struct' a canal which impairs riparian to from the he is not entitled that damages company. recover a license case, mills, had erected valuable Wright He granted the was to but say, him the court legislature; —“ the revoke kqow bound to whenever the had its license to State power should require -interests the paramount public And, it. in this a of limited a respect, public agent grant not to- to throw interests confided powers, away bound a different from an it, is individual is master grant who. latter, To revoke after an in'the subject. expenditure "be it,-would oí a fraud. a prosecution But he who accepts 1852. al. and Baritan et v. Delaware he is license from legislature, knowing dealing to does so at bound his by duty impair rights, agent public a it, on the foot of risk; expenditure him voluntary gives to no claim compensation.” cаses, are, The asserted and these established by principles somewhat affect to but, as real perhaps, peculiar, in the State of must be treated as property they clear, in this also, court. It is precedents binding ap of these plication under the construction principles proviso consideration, a that it cannot be construed as grant of a waters river use, public fee-simple private them, usufruct of altera without diminution or estate tion.” contains no direct words which would ope grant, rate dam of Adam way estoppel upon grantor. a nuisance when did little made; but, it was as it Hoops -com commissioners, to who were injury navigation, to manded other tolerate prostrate- nuisances, were enjoined mills of had not been erected faith on the Hoops .this. license,' cases total we have legislative quoted, with of it not be revocation apparent chargeable in those which -be hardship cases. His dam continues to be injustice might imputed tolerated, and the license his mills is still water enjoyed, subject diverting - diminution from the exercise of the occasional superior right His interest of the semble in the water to re said sovereign. may of common, which custom subservient right by that of the lord -of so soil; lord dig clay- may others to do so, without sufficient empower pits, herbage leaving on the Green, common. Bateson T. R. claim Nor can plaintiff by prescription against than the act confers for .more on him, is at best impunity His license, for a nuisance.' toleration, rather him a gives dam title and use waters of keep up fiver, good one those *12 against every them sovereign, diverting for public by authority, public, uses. true, that It is the diverted declaration case, in this plaintiff’s alleges, waters that defendants’ by dam and canal are mills,- used for as it and for emolument. purpose' private But not or that alleged, pretended, defendants have taken canal, more water than was for the or have necessary constructed a canal of dimensions than greater were authorized to by charter, make, obliged use must be secondary (cid:127) as to incidental the main of their merely object Considered "Wedo'not, therefore, charter. consider the us, before question whether not recovér plaintiff might an in- damages against or dividual, private of. corporation, water this river diverting et-al. Randle Raritan Canal Company. to or without emolument injury, purpose private with only, license, or of either of its owners. authority sovereign decide, The case before us us to requires the laws only Delaware is River river, Pennsylvania, public, navigable held its joint trust, sovereigns, public; riparian owners of land no or river, title to the to divert any right waters, 'its unless license from the State. That such license revocable, and State, subjection superior right divert to the water for public improvements. It‘follows, conclusions, that, from these whether necessarily, the State of claim the whole or Pennsylvania acknowledge the State common, of New as tenant Jersey, possessing herself; State,' equal whether either without rights consent of the other, not, stream, has or has to-divert will it tenant at not alter or a mere enlarge plaintiff’s rights. Being as both, sufferance to the usufruct of the regards water, his partition estopped plain, to he is not 'in a question condition relative rights If to chooses in this superiors. Pennsylvania acquiesce waters, or is great public improvements, acts, her own cannot com- complain plaintiff call this court decide questions between the two neither them sees fit raise. the law By of his has own plaintiff remedy against corpo- take ration the whole river for the authorized purpose canals or are tenure improving navigation; rights both the States. regards views, With these it will be wdiether unnecessary inquire of 1783, between and New compact aas revocation of the license toleration operated from can arise nuisance. implied the colonial1acts of as that question proviso in case the dam be indicted as a only plaintiffs’ Nor is on the ot pass any question necessary opinion the whom this river either of respective these co-terminous States to waters, to divert its the.con- belongs, Qther. sent The question raised without its difficulties; is not bound to resolve it laws of peculiar courts, we own court interpreted by cannot say below has erred in its and therefore them, affirm exposition the judgment. Mr. Justice McLEAN Mr. Justice DANIEL dissented. Mr. Justice Jus- CATRON and Mr. opinion; gave separate tice CURTIS dissented from judgment the merits, but its en+ jurisdiction. '.rtaining *13 1852. (cid:127)95 Del'a-jvare Company. and Raritan. al. v. Canal
Rundle et of Mr. Justice CATRON are the opinions following Justice DANIEL. Mr. and Justice CATRON. Mr. alder- is, been, mayor has long My opinion of a or the directors mén corporation, president city of a and directors railroad bank, (and company, president that sue and are the true similar parties of other are corporations,) as trustees and сonstantly chang- sued representatives are not known to These public, stockholders. ing on them notice service respect- suable practice, personal If of the United States require. such as laws ively, are citizens of State where cor- and directors president poration suit is citizen created, was and the other party of a of a different or a or citizen govern- subject foreign can exercise States ment, juris- then the courts of United In this sense article of the Constitution. under the third diction case, and when the decision Letson’s assented to it I understood made; and so now. understood are not within jurisdiction If all real defendant^ it, court, some of the directors reside then beyond because the the act of suit to 28,1843, allows’the proceed,-regard- February fact, for stated in case. 2 of this the reasons Litson’s less Sow-. be States courts ousted the United could jurisdiction, If of other States and countries be citizens subjects foreign and forced would often be courts, election, into the State without power cases, all benefit contem- deprived, great cases, Constitution; and, many compelled plated are submit who -juries rights judges inhabitants tried, the' to contend with the cities where suit must courts, in local chances of where powerful, corporations, them; and where no justice be greatly against impartial man would with such an he could antagonist, prudent help engage laws, masses of it. State under a large by combining men. name, all Constitution; cannot corporate repeal corporations have trustees citi- must who usually representatives, created; of the State where these zens corp.oration cap sued, citizens charged by corporate property suit; nor can the courts allow to be security the constitutional refinements, -a evaded by unnecessary inflicting deep on the institutions of the country injury Mr, Justice DANIEL. In the I cause, announced this opinion just unable to concur.
am Were the relative and interests of the parties 9G et al. Baritan *14 be believed to before court, this I controversy regularly should coincided in the conclusions for the rea- majority; that is son, disclosed record, that either the tradi- all
tions or the of the States of legislation New shows an or equal claim on the either of Jersey, those part Delaware, States- River and to the uses to which of that river the waters ity that no invested From such might equal- applied. each of it States, in those would seem fоllow, regularly use or of the waters that river enjoyment could be in of one of them, to the grantees exclusion of the like use and of the enjoyment by grantees other. therefore, from to Adam permission, or ^Pennsylvania Hoops, his the waters of the Delaware in the work- assignees, apply mill, whatever estate or interest it invest ing might such as could against’ never the the grantee, deprive State equal of.her privilege applying waters of the same either in her directly, corporate capa- or through Delaware and Raritan city, grantee, Canal with My brethren Company. disagreement in this case my its foundation has reason disconnected with the wholly merits the absence of to It is deducible from parties. conviction of my either here inor the Circuit authority, Court, this cause; and that should adjudicate therefore have been remanded, with directions for its dismission, for want of juris- diction. The record discloses the fact, that the defendant in the party Court, Circuit court, before this appellee corpora-
tion, in the declaration, styled “a created corporation of New State It is that the Jersey.” and cha- important style of this racter as party well as source litigant, and manner existence, of its be borne in mind, as both are deemed material the question of of this considering the jurisdiction and of too, the Circuit Court. It is to be important, remem- bered, that the question here stands raised unaffected wholly or legislation, which any incompetent, competent may have of the courts the United attempted organization States; but of the depends construction exclusively 3d 2d section of the' the Constitution, article which defines of the judicial first, power States; United with respect subjects embraced within and, that with power; secondly, respect to those whose access, character them may give .parties, United, courts this States. In the second branch of definition, we find enumeration, as following descriptive whose or those authorize position, parties, pleading will in those limited courts; and this being impleaded position “ controversies to contro- which the States are party; United and Baritan e-t al. v. — of differ- States, between citizens versies between two or more lands States,— between citizens claiming ent States,- citizens of under of different between grants —and or State and citizens subjects.” foreign this be, it has not Now, been, will pretended, United can, sense, be identified with corporation any if it States, latter; or is endowed privileges be, it from all could liability clearly exempted Nor is it sued in the Federal courts. corpo- pretended, and situ- Union; of this created ration is a State nor, by, to be the within, it be held the State of New can ated then, be, of a must State. citizen subject foreign the enumeration in article quoted, part gives in controversies to the courts of the United States jurisdiction the Circuit that either between citizens of different as a this court can take Court or cognizance corporation *15 is, truth, in the sole on which that and this founoa+ion party; assumed, has or is be maintained. been attempted cognizance then, on which the of Circuit The Court arid authority proposition, based, of tribunal is is this: The Delaware and this n Canal is either a citizen of United Raritan Company n orit is a citizen of of New This State proposition, Jersey. or its as terms either legal political appear, startling may asserted basic of the is jurisdiction undeniably the apprehension, character, all and must case, and in others of a similar this in be established, or that fails. Let this jurisdiction pro- wholly a little more examined closely. position citizen will be found in the The term writers rarely occurring law; those writers- almost adopting,- English universally upon as of thоse or obliga- rights sustaining descriptive possessing suited to their tions, social, or as more the term subject, political of local other na- But, institutions. in the writers peculiar tions, liberal than that and under of deemed less systems polity and we find the term citizen familiarly reviving,- England, term duties that and parti- character implies, has rights Vat-tel, book, defined. 4th Thus, chapter, cularly “ the title of is: The concern a nation may which (cap. 6th,) the text actions of citizens.” A few words have in the author in will show the of that of this chapter apprehension “ u he, who are relation Private to this term. persons,” says the citizens and nation, members one offend ill-treat may another; it share state-may for us to examine what what remains and aré the citizens, have in actions of her rights “ Who- in And again: obligations sovereigns respect.” n is state, a citizen which ill, ever offends the uses indirectly ciii- the term bound to citizen.” The meaning protect vol. xiv. C'OURT. et al. and Baritan zen subject, jurists, indi- apprehension English character, in their natural in contradistinction to cating persons law, artificial or fictitious created is further eluci- persons dated those jurists, treatises origin of those artificial objects capacities persons designated by name of corporatiоns. Thus, Blackstone, Mr. Justice “ 18th of his 1st volume, the have hitherto considered holds this We chapter language: persons their natural capacities, have treated of their But, and duties. as all rights personal j and, die with the as the form rights vesting person; of in- necessary individuals, series of one after another., with the same inconvenient, identical has public rights, it impracticable; when necessary, found advantage to have foot continued, any particular rights kept
to constitute artificial who maintain a suc- persons, perpetual cession, kind These enjoy legal immortality. artificial are corporations.” called persons writer, This same in the first book distinguished of his Com- mentaries, are such as p. says, rights persons con- men, cern and áre annexed to the persons when the. are due are called person they whom regarded, simply we consider ; when from whom are person they due, denominated, duties,” are then And 10th again, cap. same book, he treating says, People, people either aliens, is, born out the dominions or allegiance natives, crown; is, such are born it.” within citizen, Under our own the term, systems polity, implying or similar relations to the government society term, is familiar to appertain subject, England, all. Under the term used is either-system, designed apply character, to man in to a his individual his natural capacities; or social, social and being, agent, possessing political rights, *16 is this in sustaining, acceptation political, obligations. moral therefore, term, citizen, that the in only, article of the Constitution, can be received and understood. dis- When that article extends tributing-the judicial it to controver- power, sies between citizens of different States. This mean the must communities, natural those physical beings composing separate and can, no violence of be ar- made interpretation, signify tificial, creations. theoretical, cor- incorporeal, invisible A therefore, a but a poration, not natural mere crea- person, being of ture the mind, invisible and cannot a be citizen intangible, of a States, of United cannot within fall terms and can article, of the above-mentioned power of therefore the the neither nor be courts impleaded plead United States. this that be Against urged, position may 1852. and Baritan al. ¶. et court, mat- been ruled this this thereof has converse answer to such an question. is no for In argu- ter longer open a construc- this is a matter ment, I involving would reply, construction or Constitution, of and that wherever the tion the involved, I can hold of instrument that sacred integrity or number trammelled precedents. myself precedent ; instrument all and its every That is above precedents integrity if one is bound to believed to trench what this number vindicate precedents, against any upon us into Let examine its supremacy. its in jurisdiction reference court has propounded ; endeavor in cases to parties in which corporations be claimed what the influence that they ascertain may first have heretofore ruled in of such jurisdiction. support before this was instance in which this question brought directly v. Deveaux, of the United States was that of the Bank a of this case will Cranch, present examination An into minds instance of the error which strongest striking be from common .led, shall whenever they depart plain, may truths, at- or from well ascertained terms, acceptation conclusions, is incom- tainment of subtlest ingenuity the decision the case This criticism to sustain. upon petent be from the Deveaux, shielded Bank v. may perhaps decision of this a subsequent charge presumptuousness, case, the former created the Bank court, hereafter be mentioned. a States, Congress, United corporation the question сapacity plaintiff, party States, United this a courts of the such court sue in the party to that said, in reference question, jurisdiction so the character of the limited, court far aá. this respects citizens between case, this to controversies particular parties to come citizens, within States, must be of different both parties artificial invisible, being, the that mere That intangible, description. a certainly corporation aggregate, legal entity, beor courts cannot sue sued citizen, a and consequently members in United unless the rights corpo- be name. If the can exercised in corporate their respect not as company ration considered as mere facu’ty, use business, individuals, who, may the their transacting Union.” must from the courts name, excluded legal both citizenship shown The court having necessity farther, in order to shown jurisdiction; give having parties, absolute nature incompatibility corporations, some of these citizenship, qualification indisputable attempts which, all, at must stated intelligible clearly positions, After so laid down. taken as subversive wholly positions corpo- requisite stating citizenship, sh,owing *17 et al. v. and Baritan “ ration cannot be a-citizen, and it cannot that sue consequdntly be sued-in the States,” courts United or the court goes “ .add, to the unless of the members can be exercised rights their mode name.” .Now, it is submitted that' it is in corporate this viz. in that the corporate name, only, rights can members be exercised; that it is this which constitutes the character, and and functions of a being, If is corporation. this, meant that each member, beyond or the members, separate or a can take to portion them, themselves the .character and functions of the then aggregate the merely legal being, would dissolved; corporation essential istence, its the unity perpetuity, features its nature, and the ex- its great objects would at end. the present anomaly and not at being existing the same- time. This existing obscure strange qualification, court, the by attemptpd clear, the them, announced legal principles forms previously to, introduction for, apology proceeding, adopted by them, which to- undertook they adjudicate upon rights' corporation, through supposed citizenship indivi- duals interested in that corporation. assert the to They power, n look to beyond or ascertain the resi- corporation, presume dence of the individuals it, and to model their de- composing cision words, fоundation. In other affirm that they law, an action at asserted one of the legal purely rights, record, be maintained parties upon may by showing pre- these vested in some other suming who is person before them. party controversy Thus stood the decision the Bank of the United States v. Deveaux, irreconcilable with correct wholly definition, and a until it was encountered puzzle professional apprehension, court, the decision of the Louisville and Cincinnati , , Railroad in 2 497. Company reported Howard Letson decision, latter unable to untie the judicial Bank and entanglement Deveaux, seem have applied to it of the conquerór; but, sword unfortunately, have dealt at them, blow they ligature perplexed severed a have itself. have portion temple They contravened all the known definitions and only adjudica tions nature of respect the doctrines of the civilians corporations,-but they to what repudiated imported citizen, time, the term at repealed, subject limited restriction Constitution which the jurisdic United States tion courts between controversies that, States.” citizens different. have asserted They State, business in a by, transacting corporation-created an inhabitant of the deemed treated capable *18 Coihpany. Bundle al. and Baritan et v. Delaware Canal a citizen, sued, as for all the of and and being purposes .suing an creation, averment of the facts of its place . business, its to the circuit is sufficient transacting courts give jurisdiction." attention, The first which strikes thus thing position affirmed, is the and its want terms. of precision perspicuity The court affirm that a and by, corporation transacting created business a State, within is to be deemed an inhabitant of that State. But the article the Constitution does not make inhabit- a requisite sued; of the condition of or ancy suing being Moreover, requisite the citizenship. although citizenship implies residence, means citizen- no right implies latter it is said be treated that these ship. Again, as may corporations citizens, sued. Even or being purpose suing distinction it would here were comprehensible, attempted a sufficient' does it, the Constitution not. reply provide that but that sue or b'e citizens, sued, those who be treated as may may to citizens citi- shall be limited jurisdiction only; zens in be seems to fact. distinction attempted and the laws nowhere without or for the Constitution meaning, into citizen, define such a to be called exist- quasi as a being ence for a particular any being purposes; he be tem- attributes but for which may the one citizenship, n be dismissed created, and porarily arbitrarily of his creation existence the moment purposes particular sense, none shall have or In a legal answered. political, citizens, as can be treated dealt or with by government then, follow, would who are citizens in those reality. as a court, that induction, from the necessary corporation argument treated be so citizen, a it must must be treated as citi- Each a citizen. to all intents and it is because purposes, our does, zen not under old certainly (if governments) faculties, system polity, possess moral, which social, and sustain the samfe obligations, political, then, of citizen, aAs felloyr-citizens. of his each appertain a eligible would or of the United States, a corporation either if created by or the State Federal legislatures; citizen, as a native-born State or Federal might, governments, t° States —(cid:127)©! the United to the office President aspire so example, last armies, fleets, command of in which fat a it, form part character of we the cotomander should have realized ship romance spectre poetical our invisible com- Republic. And should incоrporeal conduct, not we mander him, see acquit himself or in might in color sent his arrest were provided answer practicable, to. before delinquencies court-martial, subjected penal- et al. v. Baritan declared, Coke ties the articles of war. Sir Edward has treason, that a commit or other cannot corporation felony, crimp; or felon’s neither is it traitor’s capable suffering it it is not liable to punishment; can corporeal penalties' —'that duties, it take an oath for cannot perform personal due office; execution an neither be arrested .of can ideal, committed arrest for its existence no man can prison, excommunicated, it be it; neither can for it has no soul. But ’these doctrines of Lord Coke were founded an appre- hension of now law treated as obsolete. antiquated His did which a cor- lordship anticipate improvement-by citizen, could be that trans- transformed into poration formation be existence, soul and endowed with given physical here to be shown bo'dy'too. attempted incongruities deduci'ble .from the decisions the cases of the necessarily *19 Bank of the United Deveaux, States v. the Cincinnati and Louisville Letson, Railroad afford some illustration Company of the effects which must ever a- follow from the departure settled These principles law. principles always traceable therefore, ato wise and are, founded experience; deeply consentaneous, ever in with themselves harmony and with reason; and whenever abandoned as to the guides course, the must lead to judicial aberration uncer- conse- bewildering tainty Conducted these by principles, confusion. crated both time and the by obedience of I am sages, brought the conclusions: 1st. That following sound or reason- able can amere interpretation,, law, corporation— faculty be citizen, transformed into a or treated as a citizen. 2d. That the second section the article of the Constitution, third the courts of the investing United States with jurisdiction controversies between citizens ^different States, cannot be made to embrace controversies and not corporations citizens are and that courts, the those parties; assumption, by -jurisdiction cases, such must involve a infraction of palpable the article and section referred to. just 3d. cause That us, before the defendant the Circuit Court party having a corporation created the State aggregate, of New Jersey, the Circuit Court could take thereof; properly cognizance and, therefore, this cause should remanded to Circuit Court, with directions that it dismissed for want of jurisdiction.
Order; cause came on To be This heard transcript record from the Circuit Court of for the the United States
DECEMBEK In re Kaine. of New District sideration was counsel. On argued by con- whereof, now here ordered and adjudged by court, this of the said Circuit judgment Court in be,- cause affirmed costs. hereby, with alleged Fugitive re Kaine, Thomas Great Britain. article of the Under tenth of 1842. between the United States treaty Great a warrant was Britain, issued at the instance of the commissioner, British of a alleged, Consul, it was had apprehension who, committed an person with intent assault, Ireland. murder, being arrested, ordered him to Commissioner for person committed, abiding order President of the United States. purpose habeas was then A issued Court of the United corpus Dis- Circuit Judge presiding, trict after a heaving, the writ when, dismissed, prisoner was remanded to custody. Judge, A was then petition Circuit at presented addressed to the chambers, praj’ing Justices Court, fora writ habeas Supreme which was corpus, Judge, Circuit at-the hearing, referred after a Justicеs the Supreme Court, in bank, commencement of the next term thereof. meeting At a motion proceedings made, papers Judge to the Circuit annexed for writs of habeas presented petition, corpus bring and certiorari to the defendant and the record from the up Circuit for Court, having the decision of court examined. purpose motion was the writs dismissed. refused; denied, prayed peririon June, On the 14th"óf the British Con- Anthony Barclay, York, at Betts, sul New addressed to Samuel of the Dis- It. Judge Court of the trict United States Southern District New York, and to commissioners authorized any judicial perform set forth, duties in the that matter, a requisition complaint. *20 it had been was believed to Mr. represented Barclay, Kaine, Cain, him, Kane, Cooleen, that one Thomas then of did, .1851, Ireland, on or about in at the 5th fire a of April, pistol ope Balfe, him; James murder warrant intent to that a him but that apprehend issued a justice peace, Kaine had said absconded and fled United States. further had requisition stated, crime that the of which he his and commitment justified guilty apprehension it had been committed the United States. then within issued, that warrant for asked -might apprehension end evidence of be heard and con- criminality may ; if, on such should be deemed sidered the evidence hearing, sufficient, should -executive certified the proper in order that a the surrender warrant issue authority, might such States between United fugitive, treaty Britain. Great