Lead Opinion
delivered the opinion of 'the court.
Thе plaintiffs in error, who were plaintiffs below, are owners
The plaintiffs, in their declaration, show title to the property under one-Adam Hoops, who had erected his mill and built a dam in the river previous to the year 1771. In that year, the Provinces of Pennsylvania and New Jersey, respectively, passed acts declaring the River Delaware a common highway for purposes of navigation up and down the same, and mutually appointing commissioners to improve the navigation thereof, with full power and authority to remove any obstructions whatsoever, nаtural or artificial; and subjecting to fine and imprisonment any person who should set up, repair, or maintain any dam or ■obstruction in the same, provided, “ that nothing herein contained shall give any power or authority to the commissioners herein, appointed, or any of them, to remove, throw down, lower, impair, or in any manner to alter a mill-dam erected by Adam Hoops, Esq., in the said River Delaware, between his plantation and an island in the said river, nearly opposite to Trenton; or any mill-dam erected by any other person or persons in the said river, before the passing of this act, nor to obstruct, or in any manner to hinder the said- Adam Hoops, or such other person or persons,, his or their heirs and assigns, from maintaining, raising, or repairing the said dams respectively, or from taking water out of the said river for the use of the said mills and waterworks erected as aforesaid, and none other.”
The declaration avers, that by these acts of the provincial legislatures, the said Hoops, his heirs and assigns, became entitled. to the free and .uninterrupted enjoyment and privilege of the River Delaware for the use of the said mills,.&c., without diminution or alteration by or from the act of said Provinces, now States of Pennsylvania and New Jersey, or any person or persons claiming under them or either of them. Nevertheless, that the defendants erected a dam in said river above plaintiffs’ mills, and dug a canal and diverted the water, to the great injury, &e.
The defendants are a corporation, chartered by New Jersey, for the purpose of - “ constructing a canal from the waters of the Delaware to those of the Raritan, and of improving the navigation of said rivers.” They admit the construсtion of the canal, and the diversion of .the waters of the river for that purpose, but demur to the declaration, and set forth as causes of demurrer —
“ That-the act. of the legislature of the then Province of Penn
“ And also that, as it appears from the said amended fifth count, that the said River Delaware is a common highway and public navigable river, over which the States of Pennsylvania and New Jersey have concurrent jurisdiction, and. a boundary of said States, these defendants insist that the legislative' acts of the then Province of Pennsylvania and New Jersey, passed in the' year of our Lord seventeen hundred and seventy-one, as set forth in the said amended fifth count, were intended to. declare the said River Delaware a common highway, and for improving the navigation thereof, and that the provision therein contained, as to the mill-dam erected by Adam Hoops, in the said River Delaware, did not .and does not amount to a grant or conveyance of water power to the said Adam Hoops, his heirs or assigns, or to a surrender of the public right in the waters of .the said river, but to a permission only to obstruct the ■ waters of the said river by the said dam, without being subjected to the penalties of nuisance; that the right of the said Adam Hoops was, and that of his assigns is, subordinate to the public right at the pleasure of the legislature of Pennsylvania and New Jersey, or either of them.”
On this demurrer the court below gave judgment for tL*? defendants, which is now alleged as error.
It is evident, that the extent of the plaintiffs rights as a riparian owner, and the quеstion whether this proviso operates as the grant of a usufruct of the waters of the river, or only as a licénse or toleration of a nuisance, liable to revocation or subordinate to the paramount public right, must depend on the laws and-customs of Pennsylvania, as expounded by her own courts. It will be proper, therefore, to give a brief sketch of
The River Delaware is the well known boundary between the States of Pennsylvania and New Jersey. Below tide water, the river, its soil and islands, formerly belonged to the crown; above tide water, it was vested in the proprietaries of the coterminous provinces — each holding ad medium filum aqua. Since • thе Revolution, the States have succeeded to the public fights both of the crown and the proprietaries. Immediately after the Revolution, these St . entered into the compact of 1783, declaring the Delaware a common highway for the use of both, and ascertaining their respective jurisdiction over the same. For thirty years after this compact, they appear to have enjoyed their common property without dispute or collision. When the legislature of either State passed an act affecting it, they requested and obtained the concurrence and consent of the o her. Their first dispute was caused by an act of New Jersey, passed February 4, 1815, authorizing Coxe and others to erect a wing dam, and divert the water for the purpose of mills and other machinery. The consent of the State of Pennsylvaniа was not requested; it therefore called forth a protest from the legislature of that State. This was followed by further remonstrance in the following year. A proposition was made to submit the question of their respective rights to the Supreme Court of the United States, which was rejected by New Jersey. After numerous messages’and remonstrances between the governors and legislatures, commissioners were mutually appointed to compromise the disputes. But they failed to bring the matter to an .amicable conclusion. The dispute was never settled, and the wing dam remained in the river.
In 1824, New Jersey passed the first act for the incorporation of' the Delaware and Raritan Canal Company, for which the company gave a bonus of $100,000. This act requires the consent of the State of Pennsylvania; and on application being made to hеr legislature, she clogged her consent with 'so many conditions, that New Jersey refused to accept her terms, returned the bonus .to the company; and so the matter ended for that time.
Both parties then appointed commissioners to effect, if possible, some compact or arrangement by which each State should be authorized to divert so much water as would be necessary for’these contemplated canals. ■ After protracted negotiations, these commissioners finally (in 1834) agreed upon terms, but the. compact proposed by them was never ratified by either party.
The canals in both States, supplied by the river, are inti-' mately and extensively .connected • with their trade, revenues, and general property — while the navigation of the. river’above tide wajer, ■ and the rapids at Trenton, is of comparatively trifling importance, being used only at-times of the spring freshets, for floating timber down the stream, when the artificial diversions do not affect the navigation. The practical benefits resulting to both parties, from their great public improvements, appear to have convinced them that further negotiations, сomplaints, or remonstrances, would be useless and unreasonable ; and thus, by mutual acquiescence and tacit consent, the necessity of a more formal compact has been superseded.
The law of Pennsylvania, by which the title and rights of the plaintiffs must b.e tested, differs materially from that of England, and most of the other States of the Union. As .regards her large fresh-water rivers, she has adopted the principles of the civil law. In the case of Carson v. Blazer; the Supreme Court of that State decided, that the large rivers, such as the Susquehanna and Delaware, were never deemed subject to the doctrines of the common law of England, applicable to fresh water streams, but that they are to be treated as navigable rivers; that the grants of William Penn, the proprietary, never extended beyond the margin of the river, which belongеd to the public, and that the riparian owners have therefore no exclusive rights to'the soil or water of such rivers ad filum medium aquce.
In Shrunk v. The Schuylkill Navigation Company, the same court repeat the same doctrine; and Chief Justice Tilghman, in delivering the opinion of the court, observes: “ Care seems to have been taken, from the beginning, to preserve the waters of these rivers for public uses, both of fishery and navigation; and the wisdom of that policy is now more striking than ever, from the great improvements in navigation, and others in contemplation, to effect which, it is necessary to obstruct the flow of the water, in some places# and in others to divert its course. It is true that the State would have hud a right to do these things for the public benefit, even if the rivers had been private property ; but then, compensation must have been made to the
In the case of. The Monongahela Navigation Company v. Coons, the defendant had erected his mill under a license, given by an act of the legislature (in 1803) to riparian owners to erect dams of a particular structure, “ provided they did not impede the. navigation,” Sic. The Monongahela Navigation Company, in pursuance of a charter granted them by the State, had erected a dam in the Monongahela, which flowed back the water on the. plaintiff’s mill, in the Youghiogany, and greatly injured'it, And it was adjudged by the court, that the Company were not liable for the consequential injury thus inflicted. Thé court, speaking of the rights of plaintiff, consequent on the license granted by the act, (of .1803,) observe: “ That statute gave riparian owners liberty to erect dams of a particular structure, on navigable streams, without being indictable for a nuisance, and their еxercise of it was, consequently, to be attended with expense.and labor. But was this liberty to be perpetual, and. forever tie up the power of the State ? Or, is not the contrary to be inferred, from the nature of the license ? So far was the legislature from seeming to abate one jot of the State’s control, that it barely agreed not to prefer an indictment for a nuisance, except on the report of viewers to the Quarter Sessions. But the remission of a penalty is not a charter, and the alleged grant was nothing more than a mitigation of the penal law.”
The case of the Susquehanna Canal Company v. Wright, confirms the preceding views, and decides, “ that 'the State is never presumed to have parted with one of its franchises in the absence of conclusive proof of such an intention. Hence a license, accorded by a public law to a riparian оwner, to erect a dam on the Susquehanna River, and conduct the water upon his land for his own private purposes, is subject to any future provision which the State may make, with regard to the navigation of the river. And if .the State authorize a company to construct' a canal which impairs the rights of such riparian owner, he is not entitled to recover damages from the company. In that case, Wright had erected valuable mills, under a license granted to him by the legislature; but the court say, — “ He was bound to kqow that the State had power to revoke its license whenever the paramount -interests of the public should require it. And, in this respect, a grant by a public agent of limited powers, and bound not to- throw away the interests confided to it, is different from a grant by an individual who. is master of the subject. To revoke the latter, after an expenditure in'the prosecution oí it,-would "be a fraud. But he who accepts a
The principles asserted and established by these cases, are, perhaps, somewhat peculiar, but, as they affect rights to real property in the State of Pennsylvania, they must be treated as binding precedents in this court. It is clear, also, from the application of these principles to the construction of the proviso under consideration, that it cannot be construed as a grant of the waters of a public river for private use, or a fee-simple estate in the usufruct of them, “ without diminution or alteration.” It contains no direct words of grant, which would operate by wаy of estoppel upon the grantor. The dam of Adam Hoops was a nuisance when it was made; but, as it did little injury to the navigation, the commissioners, who were -commanded to prostrate- other nuisances, were enjoined to tolerate .this. The mills of Hoops had not been erected on the faith of a legislative license,' as in the cases we have quoted, and a total revocation of it would not be chargeable with the apparent hardship and injustice which might -be imputed to it in those cases. His dam continues to be tolerated, and the license of diverting the water to his mills is still enjoyed, subject to occasional diminution from - the exercise of the superior right of the sovereign. His interest in the water may be said to resemble a right of common, which by custom is subservient to the right of the lord -of the soil; so that the lord may dig clay-pits, or empower others to do so, without leaving sufficient herbage on the common. Bateson v. Green, 5 T. R. 411.
Nor can the plaintiff claim by prescription against the public for .more than the act confers on him, which is at best impunity for a nuisance.' His license, of rather toleration, gives him a good title to keep up his dam and use the waters of the fiver, as against every one but the sovereign, and those diverting them by public authority, for public, uses.
It is true, that the plaintiff’s declaration in this case, alleges, that the waters diverted by defendants’ dam and canal are used for the purpose' of mills,- and for private emolument. But as it is not alleged, or pretended, that defendants have taken more water than was necessary for the canal, or have constructed a canal of greater dimensions than they were authorized and obliged by the charter, to mаke, this secondary use must be Considered as merely incidental to the main object of • their charter. "We do'not, therefore, consider the question before us, whether the plaintiff might not recovér damages against an individual, or private corporation, diverting the water of. this river
It‘follows, necessarily, from these conclusions, thаt, whether the State of Pennsylvania claim the whole river, or acknowledge the State of New Jersey, as tenant in common, and possessing equal rights with herself; and whether either State,' without consent of the other, has or has not, a right to-divert the stream, it will not alter or enlarge the plaintiff’s rights. Being a mere tenant at sufferance to both, as regards the usufruct of the water, he is not 'in a condition to question the relative rights of his superiors. If Pennsylvania chooses to acquiesce in this partition of the waters, for great public improvements, or is estopped to complain by her own acts, the plaintiff cannot complain, or call upon this court to decide questions between the two States, which neither of them sees fit to raise. By the law of his own State, the plaintiff has no remedy against a corporation authorized to take the whole river for the purpose of canals or improving the navigation; and his tenure and rights are the same as regards both the States.
With these views, it will be unnecessary to inquire wdiether the compact of 1783, between Pennsylvania and New Jersey, operated as a revocation of the license or toleration implied from the proviso of the colonial1 acts of 1771, as that question can arise only in case the plaintiffs’ dam be indicted as a public nuisance.
Nor is it necessary to pass any opinion on the question ot the respective rights of either of these co-terminous States to whom this river belongs, to divert its waters, without the.consent of the Qther.
The question raised is not without its difficulties; but being bound to resolve it by the peculiar laws of Pennsylvania, as interpreted by her own courts, we cannot say that the court below has erred in its exposition of them, and therefore affirm the judgment.
My opinion is, and long has been, that the mayor and aldermén of a city corporation, or the president and directors of a bank, or the president and directors of a railroad company, (and of other similar corporations,) are the true parties that sue and are sued as trustees and representatives of the constantly changing stockholders. These are not known to the public, and not suable in practice, by service of personal notice on them respectively, such as the laws of the United States require. If the president and directors are citizens of the State where the corporation was created, and the other party to the suit is a citizen of a different State, or a subject or citizen of a foreign government, then the courts of the United States can exercise jurisdiction under the third article of the Constitution. In this sense I understood Letson’s case, and assented to it when the decision was made; and so it is understood now.
If all the real defendant^ are not within the jurisdiction of the court, because some of the directors reside beyond it, then the act of February 28,1843, allows’the suit to proceed,-regardless of this fact, for the reasons stated in Litson’s case. 2 Sow-. 597.
If the United States courts could be ousted of jurisdiction, and citizens of other States and subjects of foreign countries be forced into the State courts, without the power of election, they would often be deprived, in great cases, of all benefit contemplated by the Constitution; and, in many cases, be compelled to submit their rights to judges and -juries who are inhabitants of the cities where the' suit must be tried, and to contend with powerful, corporations, in local courts, where the chances of impartial justice would be greatly against them; and where no prudent man would engage with such an antagonist, if he could help it. State laws, by combining large masses of men. under a corporate name, cannot repeal the Constitution; all corporations must have trustees and representatives, who are usually citizens of the State where the corp.oration is created; and these citizens cap be sued, and the corporate property charged by the suit; nor can the courts allow the constitutional security to be evaded by unnecessary refinements, without infliсting -a deep injury on the institutions of the country
Concurrence Opinion
In the opinion of the court, just announced in this cause, I am unable to concur.
Were the relative rights and interests of the parties to this
The record discloses the fact, that the party defendant in the Circuit Court, and the appellee before this court, is a corporation, styled in the declaration, “a corporation created by the State of New Jersey.” It is important that the style and character of this party litigant, as well as the source and manner of its existence, be borne in mind, as both are deemed material in considering the question of the jurisdiction of this court, and of the Circuit Court. It is important, too, to be remembered, that the question here raised stands wholly unaffected by any legislation, competent or incompetent, which may have been attempted in the organization of the courts of the United States; but depends exclusively upon the construction of the 2d section of the' 3d article of the Constitution, which defines the judicial power of the United States; first, with respect to the subjects embraced within that power; and, secondly, with respect to those whose character may give them access, as .parties, to the courts of the United, States. In the second branch of this definition, we find the following enumeration, as descriptive of those whose position, as parties, will authorize their pleading or being impleaded in those courts; and this position is limited to “ controversies to which the United States are a party; contro
Now, it has not been, and will not be, pretended, that this corporation can, in any sense, be identified with the United States, or is endowed with the privileges of the latter; or if it could be, it would clearly be exempted from all liability to be sued in the Federal courts. Nor is it pretended, that this corporation is a State of this Union; nor, being created by, and situated within, the State of New Jersey, can it be held to be the citizen or subject of a foreign State. It must be, then, under that part of the enumeration in the article quoted, which gives to the courts of the United States jurisdiction in controversies between citizens of different States, that either the Circuit Court or this court can take cognizance of the corporation as a party; and this is, in truth, the sole founoa+ion on which that cognizance has been assumed, or is attempted to be maintained. The proposition, then, on which the authority of the Circuit Court arid of this tribunal is based, is this: The Delaware and Raritan ■ Canal Company is either a citizen of the United States, ■or it is a citizen of the State оf New Jersey. This proposition, startling as its terms may appear, either to the legal or political apprehension, is undeniably the basic of the jurisdiction asserted in this case, and in all others of a similar character, and must be established, or that jurisdiction wholly fails. Let this proposition be examined a little more closely.
The term citizen will be found rarely occurring in the writers upon English law; those writers- almost universally adopting,as descriptive of those possessing rights or sustaining obligations, political or social, the term subject, as more suited to their peculiar local institutions. But, in the writers of other nations, and under systems of polity deemed less liberal than that of England, we find the term citizen familiarly reviving,- and the character and the rights and duties that term implies, particularly defined. Thus, Vat-tel, in his 4th book, has a chapter, (cap. 6th,) the title of which is: “ The concern a nation may have in the actions of her citizens.” A few words from the text of that chapter will show the apprehension of this author in relation to this term. u Private persons,” says he, “ who are members of one nation, may offend and ill-treat the citizens of another; it remains for us to examine what share a state-may have in the actions of her citizens, and what aré the rights and obligations of sovereigns in that respect.” And again: “ Whoever uses a ■ citizen ill, indirectly offends the state, which is bound to protect this citizen.” The meaning of the term ciii
This same distinguished writer, in the first book of his Commentaries, p. 123, says, “ The rights of persons are such as concern and áre annexed to the persons of men, and when the. person to whom they are due is regarded, are called simply rights ; but when we consider the person from whom they are due, they are then denominated, duties,” And again, cap. 10th of the same book, treating of the People, he says, “ The people are either aliens, that is, born out of the dominions or allegiance of the crown; or natives, that is, such as are born within it.” Under our own systems of polity, the term, citizen, implying the same or similar relations to the government and to society which appertain to the term, subject, in England, is familiar to all. Under either-system, the term used is designed to apply to man in his individual character, and to his natural capacities; to a being, or agent, possessing social and political rights, and sustaining, social, political, and moral obligations. It is in this acceptation only, therefore, that the term, citizen, in the article of the Constitution, can be received and understood. When distributing-the judicial power, that article extends it to controversies between citizens of different States. This must mean the natural physical beings composing those separate communities, and can, by no violence of interpretation, be made to signify artificial, incorporeal, theoretical, and invisible creations. A corporation, therefore, being not a natural person, but a mere creature of the mind, invisible and intangible, cannot be a citizen of a State, or of the United States, and cannot fall within the terms or the power of the above-mentioned article, and can therefore neither plead nor be impleaded in the courts of the United States. Against this position it may be urged, that the
Thus stood the decision of the Bank of the United States v. Deveaux, wholly irreconcilable with correct definition, and a puzzle to professional apprehension, until it was encountered by this court, in the decision of the Louisville and Cincinnati Railroad Company v. Letson, reported in
The first thing which strikes attention, in the position thus affirmed, is the want of precision and perspicuity in its terms. The court affirm that a corporation created by, and transacting business within a State, is to be deemed an inhabitant of that State. But the article of the Constitution does not make inhabitancy a requisite of the condition of suing or being sued; that requisite is citizenship. Moreover, although citizenship implies the right of residence, the latter by no means implies citizenship. Again, it is said that these corporations may be treated as citizens, for the purpose of suing or being sued. Even if the distinction here attempted were comprehensible, it would be a sufficient' reply to it, that the Constitution does not. provide that those who may be treated as citizens, may sue or b'e sued, but that the jurisdiction shall be limited to citizens only; citizens in right and in fact. The distinction attempted seems to be without meaning, for the Constitution or the laws nowhere define such a being as a quasi citizen, to be called into existence for particular purposes; a being without any of the attributes of citizenship, but the one for which he may be temporarily ■ and arbitrarily created, and to be dismissed from existence the moment the particular purposes of his creation shall have been answered. In a political, or legal sense, none can be treated or dealt with by the government as citizens, but those who are citizens in reality. It would follow, then, by necessary induction, from the argument of the court, that as a corporation must be treated as a citizen, it must be so treated to all intents and purposes, because it is a citizen. Each citizen (if not under old governments) certainly does, under our system of polity, possess the same rights and faculties, and sustain the samfe obligations, political, social, and moral, which appertain to each of his felloyr-citizens. As a citizen, then, of a State, or of the United States, a corporation would be eligible to the State or Federal legislatures; and if created by either the State or Fеderal governments, might, as a native-born citizen, aspire to the office of President of the United States — •©! t° the command of armies, or fleets, in which last example, so fat as the character of the cotomander would form a part of it, we should have the poetical romance of the spectre ship realized in our Republic. And should this incorporeal and invisible commander not acquit himself in color or in conduct, we might see him, provided his arrest were practicable, sent to answer his delinquencies before a court-martial, and subjected to. the penal
Order;
This cause came on To be heard on the transcript of the record from the Circuit Court of the United States for the