34 N.J.L. 532 | N.J. | 1870
Lead Opinion
The following opinion was delivered:
The principal question which has been argued in this case is that respecting the interest of the state in the lands lying between high and low water marks in tidal rivers. In some of its aspects this subject is a familiar one to our courts; but, on this occasion, the point is, for the first time, distinctly presented, whether it is competent for the legislature to grant the soil under the water, so as to cut off the riparian owner from the benefits incident to his property from its contiguity to the water.
Notwithstanding the apparent skepticism of counsel upon the subject, I am constrained to think that some of the matters which were handled in the discussion before the court are to be considered as at rest. In my opinion, it is entirely indisputable that the proprietors of New Jersey did uot,. under the grant from the Duke of York, take any property in the soil of navigable rivers within the ebb and flow of the tides. This was the very point of decision in Arnold v. Mundy, 1 Halst. 1; Martin v. Waddell, 16 Pet. 367; and Den, ex dem. of Russel, v. The Associates of Jersey Co., 15 How. 426.
Second, that this title to the soil under navigable water, which the common law of England placed in the king, \va¡s transferred by the revolution to the people of this state. The cases above cited completely establish this proposition.
And, lastly, in tito case of Gough v. Bell, 2 Zab. 411, it was declared that the owner of lands along the shore of tide waters could extend his improvements by wharves and filling up over the shore in front of his lands to low water mark, unless prevented by the state, provided he did it so as not to interfere injuriously with navigation.
Thus far I regard the law in this state as founded in adjudications which ought not to be questioned, and which
In the discussion of this topic, I will consider briefly, first, the right, so-called, of the riparian proprietor; and, in the second place, the rights of the state over the sea shore.
First, then, with regard to the rights of the owner of the upland. In the case of Gough v. Bell, in this court, I observe that Mr. Justice Nevius and Mr. Justice Potts put their opinion on the ground that the riparian owner, at common law, was invested with certain rights in the water as appurtenant to his estate. And in the case of Gould v. The Hudson River Railroad Company, 2 Seld. 544, Mr. Justice Edmonds in a dissenting opinion, expresses a similar view.
I have not found that any other judge has ever based a decision on such a ground. The theory on which those opinions are founded seems to me the result of misconception. “ The riparian proprietor has a right,” says Mr. Justice Potts, “ though his strict legal title is bounded by the high water line, to the water as appurtenant to the upland; a right of towing on the banks, of landing, lading, and unlading ; a right of way to the shore; a right to draw seines upon the upland, and of erecting fishing huts. He has the right of fishery, of ferry, and every other which is properly appendant to the owner of the soil; and he holds every one of these by as sacred a tenure as he holds the land from which they emanate.” The error in this statement arises from overlooking the fact that some of the rights enumerated belong to the riparian proprietor as a member of the community, and that others of them belong to him in his character of owner of the soil. Not one of the privileges in the water which are ascribed to him emanate from his
The language of the old books is, “that the sea is the king’s proper inheritance,” and he is styled “ the lord of the great waste,” “ tarn aquae quam soli.” Co. Litt. 107, 260 b ; Colles 17 ; 3 Leo. 75 ; 2 Molloy 375.
And this was property susceptible of transference. There are some antique instances of grants by the kings of England of certain portions of land under the sea. Lord Hale recites several transfers of this description. Hale, de jure mavis, 14-28. It is true that such conveyances, at least in modern times, did not pass the property disencumbered of the public right of navigation and fishing; but still it is clear that the tenure of the soil carried with it certain valuable rights. In fact it appears to have been possessed of the ordinary incidents of property on terra firma. It could be put to any use not inconsistent with the public easements
The modern case illustrative of the same subject, to which I will particularly refer, is that of the Attorney-General v. Chambers, 11 De Gex, M. & G. Rep. 206. This was an information against certain owners and lessees of a district, abutting on the sea shore. The information alleged that by the royal prerogative, the sea shore and the soil, and all mines and minerals lying under the sea, and all profits arising uhereírom, Wiorg to Wr majesty, &o.; \W. there Were Veify valuable veins or strata of coal lying under that part of said district which was contiguous to the sea shore; that the sea shore vested in her majesty extended landwards as far as high water mark in ordinary spring tides, or, at all events, far beyond high water mark at neap tides; and that the defendants had encroached upon and worked valuable mines under the shore. The general right of the queen as stated was admitted, the only question which was put in controversy being as to the extent of such right. A verdict was taken, by consent, for the crown, and the court decided that
From these two cases it seems to me most conspicuous that the ownership of the shore under the sea drew to it all the usual rights of property. It could be leased out for wharves or worked as a coal mine. We are also to bear in mind that the sea shore could. be granted in gross — that is, without being parcel of the upland. Hall on the Rights of the Crown, &c.,p. 19. I also refer, for a number of examples in which claims of the crown similar to the foregoing have been successfully enforced, to an article in vol. vi., p. 99, of the Lato Magazine and Law Review. From this essay it appears that “ the advisers of the crown, for the last quarter of a century, have exercised unusual vigilance respecting, and been most active in realizing the royal claim to the fore shores.”
Among other notable instances the following one is thus described: “ An earlier case was one of an information for intrusion, filed in 1833, by Sir William Hone, when attorney-general, in the Court of Exchequer, to establish the right of the crown to a tract of land containing about two hundred and seventy acres, formerly overflowed by the tide, situate'near the city of Chester, on the,south bank of the Dee, á tidal navigable river. The suit terminated in favor of the crown, and the land was subsequently sold by the crown.” Nor do I find the royal right anywhere, in the long line of adjudications upon the subject, called in question with respect to its general features. It is admitted, in the fullest extent, in the conspicuous modern cases. Lord Advocate v. Sinclair of Foss, L. R., 1 Scotch Appeals 174 ; and Gann v. The Free Fisheries of Whitstable, 11 House of Lords Cases 192.
Indeed, I think it is safe to say that no English lawyer, speaking either from the bench or bar, has ever asserted that the owner of the land along the shore of navigable water has
From these authorities and many others which might be cited, it appears to me to be plain, that by the rules of the ancient law,'the owner of land along the shore was entitled to no right as an incident of such township, except the contingent ones before referred to of alluvion and dereliction ; and that, on the other hand, the title to the soil under tide water was in the sovereign; and that such title was attended with the usual concomitants of the ownership of realty. And it consequently followed from this result, that in order to enable the owner of the upland to fill in or wharf out below the line of high water, it was absolutely necessary to adopt some principle different from those of the common law. And this, as I understand, was the foundation on which the majority in this court placed themselves in the decision of the case of Gough v. Bell. That final decision was a concurrence in the view expressed by Chief Justice Green, in his opinion delivered in the Supreme Court; and, that view was, as I apprehend, the only one which could invest the claim of the land-owner to extend his lands by artificial means below the line of high* water with the faintest semblance of legality. As such claim could not rest on the
My consideration of this branch of the subject has led to the conviction that such privilege has not the effect suggested in the above inquiry. The local custom in question was nothing more than a license on the part of the public to the land-owner, enabling the latter to fill in or wharf out along the fore shore between high and low water marks, and which license, when executed, became irrevocable. The shore-owner acquired his indefeasible right by the acquiescence of the public in the performance of the act. That this was the view of the judges whose opinions prevailed in the decision of Gough v. Bell is, I think, clearly manifest. I have above observed that the true doctrine with respect to this local custom is embodied in the opinion read in the Supreme Court by Chief Justice Green. In that opinion, this clear statement with respect to the necessity of the execution of the license, as a pre-requisite to the acquisition of a legal right on the part of the land-owner, is to be found, viz., “In New Jersey, as we have seen, the title of the state extends, as at common law, to high water mark as it actually exists. Where the waters have receded by alluvion or by the labor of the adjoining proprietor, the title of the state does not
The steps which I have thus far taken have led me to this position: that all navigable waters within the territorial limits of the state, and the soil under such waters, belong in actual propriety to the public; that the riparian owner, by the common law, has no peculiar righfs in this public domain as incidents of his estate, and that the privileges he possesses by the local custom or by force of the wharf act, to acquire such rights, can, before possession has been taken, be regulated or revoked at tlie will of the legislature. The result is, that there is no legal obstacle to a grant by the legislature to the defendants, of that part of the property of the public which lies in front of the lands of the plaintiff, and which is below high water mark. It may be true that by snch an appropriation, the plaintiff will sustain a greater inconvenience than will other citizens whose laud does not run along this river. But the injury to all is in its essence and character the same, the difference being only in degree. All persons who have occasion to approach this river over that part of the bank occupied by the railroad of the defendants, 1 l « _ _ ' ’ may, perhaps, experience some inconvenience from the interposition of such works: the railroad, therefore, is somewhat of an impediment to the public rights of fishery and navigation. But no one, it is presumed, will pretend that such impediment is, on that account, illegal, if authorized by the legislative .authority. Nor can' the plaintiff complain because a difficult access to the water is a greater hardship to him, owing to the easy use of the water, in connection with his property in its natural condition, than it is to those who live at a distance from it. If it were true that no public improvement can be made which, in its execution, will affect
With regard to the hardships oftentimes incident to the exercise of such a power, the courts can have no concern. Such considerations address themselves exclusively to the law-makers. It is the office of the court to declare, if the law leads to such results^ that the legislature has the authority to regulate or destroy at its pleasure, and for the common welfare, the public rights in navigable rivers, and that if individuals -are,, in consequence thereof, incidentally injured, such loss is damnum absque injuria. If compensation be made for such damage, it is on the part of the state a mere gratuity, for neither the riparian proprietor no any other citizen whose property has been impaired can claim such redress as a matter of legal right. In all such cases the appeal must be to the sense of justice of the legislature.
The result being that the legislature, can authorize the
The claim is, that the legislature has granted to these defendants the use of a part of the public domain. The state is never presumed to have parted with any part of its property, in the absence of conclusive proof of an intention to do so. Such proof must exist, either in express terms or in necessary implications. I shall not cite authorities to sustain so familiar a proposition. With respect to this statute now drawn in question, and by the supposed force of which the defendants have erected their works, I fully concur in the view expressed by Mr. Justice Depue, in the opinion read by liim in the Circuit Court. I think there are no terms used in this statute which, fairly interpreted, imply an intention to confer on the defendants the privilege asserted, nor does such privilege necessarily result from the general powers conferred. This plea, therefore, presents no bar to the action of the plaintiff.
With respect to the question raised in the argument, touching the sufficiency of the facts stated in the plaintiff’s declaration to sustain his suit, I will merely say that it seems to me that a legal cause of action is shown.
The substantial allegation is, that in consequence of the works of the defendants, he is prevented from passing from his land to the river Passaic, which at present is a public highway.
Now it is true that, as the defendants have put these obstructions in this river without authority of law, such obstructions are a public nuisance. But I think it is a nuisance which, according to the allegations on the record, inflicts a peculiar damage on the plaintiff, and if that be so, it is admitted this action is well brought. The plaintiff!, until the state interferes and deprives him of the privilege, has the right to pass directly from his property on to the shore of this navigable river. He has been deprived of the right by the tort of the defendants, and this is a damage which, apparently, is individual and peculiar to himself. If a ditch
The judgment in the Circuit Court should be affirmed.
Rev., p. 1240.
Dissenting Opinion
(dissenting.) The main question in this case which we are called upon to decide, and which has been so fully argued is, whether the owner of lands bounding on navigable tide, waters has any right either in the shore, or to have his land retain its natural connection with, and adjacency to those waters, which cannot be taken from him without compensation.
The question is an important one, and its consequences of great moment. On the one hand, every owner of lands on such waters who has purchased and held them in the belief that this adjacency to the water added to their value, and was an incident that could not be taken from him, must lose this supposed right without compensation. And the owner of docks and wharves built by permission of the state, and only valuable for purposes of commerce, may have their value ■ destroyed by a grant to a stranger of ten feet under water adjacent to them. On the other hand, the state will be entitled to the profits and advantages of a sale of all the fisheries the water fronts in its bounds, which, in front of the lands on the Hudson river and bay of New York, and especially of the docks and wharves erected there, will be of immense value and contribute greatly to the financial prosperity of the state, to the advantage of all the inhabitants, and inflict injury on no one except those who have purchased rights, and built wharves, piers, or docks, with indiscreet confidence in the opinions of lawyers and judges, the declarations of legislators as to the rights of the riparian owner, the legislation of the state seemingly conferring certain
And it is the duty of this court of the last resort to determine the extent of those rights as a strict question of law, without regard to the wisdom, justice, or policy of the legislation which affects them. This duty the courts must perform, without stopping to consider whether the taking away by force of legislation, rights once given, where the power to take back exists, might not injure the credit of the state. The good faith and expediency of such matters are for the legislature alone.
The rights contended for on part of the shore-owner are placed upon three grounds: first,«the general principles of the common law; secondly, the principles of the common law as they have been adopted by the legislature, courts, officials, lawyers, and people of New Jersey, and applied to the navigable tide waters in the state; and, thirdly, the statute of 1851, commonly known as the wharf act, and its supplements.
As to the common law, it must be assumed that by the decisions in this state the right of soil on the shore to ordinary high water mark is vested in the state.
And the question here is, has the shore-owner, as incident to his land, a right to retain its adjacency to the waters, and the profits and benefits to be derived from it? The common law recognizes and secures to lands in other cases such rights and benefits derived from their natural situation relative to other lands. Such are the right to support of the natural soil, and the right to have water courses flow upon and from the laud unobstructed and uncorrupted. These are rights, if not in the adjoining land, yet to have the control and dominion of the owners of the adjoining lands so modified and limited as not to interfere with them. An adjoining owner,
On the same principle the advantage which the adjacency of navigable tide waters naturally flowing by his land, is to that land by its situation, should be held to -be a right, property of which the owner cannot bé deprived. There is no reason for support from soil, or the free flow of fresh water streams that does not equally apply to this. The maxim aqua currit et debeb currare is as applicable to tide water as to fresh water rivers of the same size, and for the same reason should.; be applied to them by the courts. The principles of law as-to the right to advantages accruing from natural situation should be uniform, except where some reason exists for difference in their application. Rone does here.
The right of an owner of lands upon tide waters to maintain his adjacency to it, and to profit by this advantage, is founded upon a natural sense of justice that prevades the community, which, although the decisions of the courts may overcome, neither they nor the subtle and artificial reasoning of learned juris-consults will ever eradicate. To this, reference is made by the Chief Justice, in his opinion in this court in the Keyport Case, 3 C. E, Green 516, where he says “that the public sentiment, from the earliest times to this day, and the whole course of legislative action in this state, had recognized a natural equity, so to speak, in the riparian owner to-preserve and improve the connection of his property with the navigable water.
The hardy, enterprising pioneers who have extended and are extending this country into the western wilderness, enter and purchase government lands, and select those adjacent to navigable streams, even when in other respects inferior, on account of the great advantage arising from this natural
But in the English authorities or decisions we find little on the subject of these rights of adjacency. There, the soil under water was vesied in the king, in trust for the public. Grants for public or private use were made only by parliament, who had unlimited power to dispose of all private property and rights, with or without compensation. Any grant by parliament gave right. Yet in the case of Bell v. The Hull and Selby R. R. Co., 6 M. & W. 699, upon a grant by act of parliament of a right to build a railway in a navigable river, on condition that compensation should be made to the owner of any wharf that should be injured by it, it was held by the Court of Exchequer that the owner of a wharf not taken or touched by the railway, but the access to which was rendered less convenient, was entitled to eom
The only part of the award which the court held to be illegal was the £5,000 allowed for the amenities, and this did not include the damage by cutting off the access to the river beyond the wall.
The case settles the doctrine that lands of the crown have the right of access to navigable waters over the shore in front, held by the sovereign in trust for the public; that this right passed with the land when demised lo a subject, without being specified, and is property which cannot be taken without compensation when compensation is required.
Chief Justice Taney, in Martin v. Waddell’s Lessee, 16 Pet 414, speaks of the disappointment to the expectation of the people who had settled this, and encountered the hardships of emigration to the new world, 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 unable to take a shell-fish from its bottom, or fasten there a stake or bathe in its waters, without becoming a trespasser.”
Against this doctrine of right by adjacency, the case of Gould v. The Hudson River Railroad Co., 12 Barb. 616, affirmed by the Court of Errors in New York, (2 Seld. 522,) is urged as establishing the contrary doctrine — -that is, that the riparian owner on tide waters has no right of access to the waters or other rights to these waters which is property,
He compares it to the case of loss of custom by change of roads and of the course of travel; and to the case of a building injured by excavations of the line by the adjoining owner,, without noticing the established right of adjoining owners to the support of the natural soil by the adjoining soil — a right, from the natural situation of the premises, similar to that under consideration, and which would have led him to the contrary conclusion. The opinion of the Court of Errors-was concurred in by five of the eight judges who composed the court; one did not hear the cause; one other did not concur; and Justice Edmunds delivered a dissenting opinion. The opinion of the court by Justice Watson is founded mainly, if not entirely, on the decision in Lansing v. Smith, 8 Cow. 146, and 4 Wend. 9. That was a suit by the owner of a wharf in the Albany basin, a part of the Hudson river, separated from the rest of the stream by a pier and lock for the convenience of the canal navigation. The injury sustained by Lansing was not that he was cut off from the river, but that access to it, or the residue of it, was rendered inconvenient by the pier and lock, an inconvenience which he suffered in common with all owners of wharves and water fronts on the basin.
In the opinion of the Supreme Court, by Justice Sutherland, he says the claim of the plaintiff as riparian proprietor
There are two distinct principles laid down : 1. That the owner has a right to navigate from his dock. 2. That the state has the right to regulate the navigation of the river, even when it affects the mode in which that right is to be exercised. And a third, to be drawn by implication, that the state has not the power to take away the right, but only to regulate its exercise.
The power of the state to regulate the use, by the public, of highways, either on land or water, is conceded. Where a fresh water river, above tide, is navigable, it is often a public highway, though the title of the bed is in the adjoining owners; the right of the state to regulate the navigation may be admitted, while it cannot cut off the owner or affect his title to the soil.
There is nothing in the decision of the Court of Errors, or in the opinions, to present a different view of the case, except the remark in the opinion of Chancellor Walworth that “ the legislature might authorize erections in front thereof, [the plaintiff’s wharf] as in the case of Smith’s wharf, on the
The decision in Bailey v. Phil., Wil. & Balt. R. R. Co., 4 Harrington 389, is only upon the right of the state to place over a navigable stream a bridge without a draw, that affected all wharves above it alike. This is the right to regulate the use of the stream by the public, the same point as adjudged in Lansing v. Smith.
The right of the state over the artificial highways laid out or constructed by its authority, would seem to be clear on principle; they are not privileges belonging to land from its natural situation, but provided by legal regulations which contain provision for the vacation of these very ways. Yet there is much force in the reasoning of Justice McLean, in delivering the opinion of the court in New Orleans v. The United States, 10 Pet. 720, where he declares that the sovereign power cannot close- the streets of a city or deprive the inhabitants of their use, because such use is essential to the enjoyment of urban property. And if, for the purpose of raising funds for the public or municipal treasury, the legislature should provide that the streets in any of our large-cities should be vacated and the land sold, or a few feet in front of each house sold to a stranger, the courts would find some principle upon which such an imposition could be prevented.
The right on the principles of the common law which I for convenience call the right of adjacency, consists in the right of ferriage, of landing boats alongside a wharf, or land by the shore, and unloading goods uppn or taking them from it, the right, of fishing from the shore, and drawing nets upon it, of entering upon it from the land, for bathing or procuring water, and such other .benefits as can be en
These rights, founded upon the same principles as those before mentioned — -settled principles of the common law — and thus supported by natural principles of justice, have, together with the right of wharfing out peculiar to New Jersey, been recognized as rights by so many learned and able judges that they are entitled to be considered as settled, although there is no case in which it was the matter decided. In the case of Bell v. Gough, in this court-, Judges Potts, Ogden, and Nevius, in their opinions, expressly state this to be the law; in that cause, when in the Supreme Court, Chief Justice Green, (2 Zab. 462,) states that in the soil of navigable rivers below high water mark, there lias undoubtedly existed from a very early period rights of the riparian proprietors, which have been recognized by the legislature, inconsistent with the idea of that exclusive property in the state recognized by the common law.
On the trial of the case of Bell v. Coles, in which I was counsel, Judge Grier, upon the entry of the verdict, said in open court that the judgment would give the plaintiff possession, but it must not be considered as entitling her to cut off the access of the defendants to the water, or to fill up the land, and signified his opinion that the recovery might be of no value to her unless profit could be made out of the premises as they were. These observations were so decided, that the counsel of the plaintiff advised her that although she owned the lands under water, it was necessary for her to purchase the right to fill in of the defendants, before she could proceed. And in consequence of this, before the exceptions taken by the defendants were drawn or sealed, a negotiation was begun, the result of which was, that a strip of land along the shore was purchased of the Coles family by Mrs. Bell. This fact is mentioned, as there is no full report of the case to show that this declaration of Judge Grier was regarded, and had effect at the time. His
The opinion of Judge McLean, in Bowman’s Lessee v. Wathen, 2 McLean 376, is clearly and decidedly in favor of such rights. And in the opinion delivered in this court in Barnett v. Johnson, 2 McCarter 489, Justice"Vredenburgh, in speaking of similar rights, claimed in that case by adjacency to a canal, says “ that a right so esssential, so universal in its exercise in all time and among all nations, exists, not as tras said in Gough v. Bell, by a common law local to New Jersey, but by a law common to the whole civilized world.”
But whatever might be .the common law of England, the law of this state, as recognized for more than a century by successive legislatures, by the courts, judges, and state officials, has established these rights of adjacency, including that of reclaiming lands under water, as a right of the shore-owner.
The legislature have recognized this right in a number of special acts for shutting out the tides. I have found forty acts of this kind of the colonial legislature, and more than thirty of the state legislature before the new constitution. All of these provide for shutting out the tides, and of course-include the shore as part of the land to be reclaimed. A number of them expressly provide for the lands between ordinary high and low water, and the creeks, on which the marshes provided for in most of them lay, are navigable waters; several of these tracts are on the shores of the Delaware, and Delaware bay. The declared object is to improve and reclaim meadows and marsh lands overflowed by the tide, and this marsh includes the shore.
All these acts, including that of February 10th, 1711, to stop the tides in the creek around Burlington islands, said to be the first private act of the colonial legislature, mention the persons benefited as the owners of these marshes.
The first general act to improve tide swamps and marshes, passed November 29th, 1788,
The series of acts regulating fisheries on the Delaware, commencing with that of December 24th, 1784, (Pamph. Laws 179,) to the act of 1808,
Fisheries were devised by wills and conveyed by deeds, and the courts sustained actions of ejectment for them. Yet there had been no actual grant of them by the state.
The dieta, in Gough v. Bell go far enough in disregarding •such repeated, continued, and consistent legislation. But the decision of that cause is not adverse to these rights ; it is founded on them. And the opinions of the judges, regarded as establishing the right of the state to the fee, are not inconsistent with them, but expressly acknowledge them.
The people of the state had claimed and exercised the right of building wharves in front of their lands from the earliest times, and until the suit in the Circuit Court of the United States brought by Waddell’s Lessee v. Martin, for the purpose of testing the rights of the proprietors of East Jersey to the lands under water, I find no law or private act. to authorize the building of wharves. Chief Justice Kirkpatrick had declared in 1821, in his opinion at circuit in. Arnold v. Mundy, 1 Halst. 10, that “the intermediate space between the high water and low water mark may be exclusively appropriated by the owners of the adjacent land by building thereon docks, wharves, store-houses, salt-pans, or other structures which exclude the re-flow of the water.”' Upon this, no doubt, the practice was continued with confidence, notwithstanding the title to lands under water was, by the decision at bar, settled to be in the state.
In 1834 the East Jersey proprietors made a lease to "Waddell for the purpose of establishing their right to the said soil under tide waters ; and then the conflicting claims of the state and the proprietors drew the attention of the public; and the purchasers of the claim in Harsimus Cove of Nathaniel Budd, who derived title from these proprietors, one of these purchasers being Willis Hall, the former attorney-general of New York, demanded of Budd that he should procure the title of the state. This he obtained by the passage of the act of 1836, granting it to him. The
Mrs. Bell, who, by purchase at a foreclosure sale, had acquired the right of her father, Nathaniel Budd, to the tract which he held, both under the proprietors and the state, laid claim to and entered upon a part of that tract, originally part of the shore, but which the Coles family, the riparian proprietors, had filled in before the act of 1836, by which the state granted it to Budd. The suit brought by Gough, the tenant of the Coles family, brought in question the right of the riparian proprietors in the shore as against the state. The first decision of that case in the Supreme Court in July, 1847, (1 Zab. 156,) set aside the verdict for the defendant, on the ground that the title of the state was to high water mark, and had passed by the act of 1836. After a second trial, the case was argued before the Supreme Court on a special verdict, and the decision given in July, 1850, was for the plaintiff, on the ground that, in this state, by a principle established by continued custom, approved by the legislature and the courts, the riparian owner had a right to fill in and reclaim the shore in front of his lands, and to appropriate the land so reclaimed. And the Court of Errors, to which the cause was removed in June, 1852,
This change of the common law was shown by the common and universal impression among the people and of the bar and of the courts, and more especially by the frequent and repeated admission by the legislature in their acts for more than a century. A single admission or mistaken recital made by the legislature of an erroneous principle as law, will not make it such, but a continued series of admissions for a century by successive legislatures, with no declaration to. the contrary, may well be held to work a change of the law as effectually as a statute passed by the same body. It has the power to change the law, and the will of the sovereign power thus plainly manifested, is law.
But the judges in expressing their opinions in this case, although unanimous, or nearly so, in the decision of the case, were divided in limiting the extent of the right of the riparian owner. All admit a right of the owner in the shore to some extent; some state it as a right vested in the owner as property; others speak of it as existing during the acquiescence of the state. The Chief Justice, and Justices Elmer, Carpenter, Nevius, Potts, and Ogden, all hold that by a local common law established in New Jersey, the riparian owner had acquired rights different from those he held at the common law. This was the view of every justice of the Supreme Court, except Justice Randolph.
The counsel for the state, in the argument in the Supreme Court of the United States, in Martin v. Waddell’s Lessee, stated that it was an established custom in the state for the riparian owner to wharf out. And the boundary, commissioners of 1807, consisting of Aaron Ogden, Alexander C. McWhorter, William S. Pennington, James Parker, and
For these reasons, it is clear to me that this right of whariing out and reclaiming did not depend upon the mere acquiescence or silence of the state. Some of the judges named above have, in their carefully-guarded opinions, coupled it with that acquiescence, without stating that the right depended upon it. All speak of it as a right, and a right or property is inconsistent with the idea of acts done by permission, whether by acquiescence or otherwise. And the courts of this state should not now, by adding such an inconsistency to the discordant opinions of its judges on this matter of riparian rights, give force to the sarcasms of Justice Grier. The opinion of Judge Elmer, in The Stale v. Jersey City, 1 Dutcher 525, while it sustains the assessment, on the ground that the assessors had the right to assess the
For these reasons I am of opinion that, independent of the rights by adjacency recognized in the principles of the common law and the Jus gentium, and independent of the wharf act, the riparian owner in New Jersey has, by the principles established by the acknowledgment of successive legislatures, of her jurists and courts, and the general and settled opinion of the citizens, the right to wharf out in front of his lands without the permission of the legislature, provided he does not interfere with the rights of others or the public right of navigation in the river, and that this right is property.
This right is also claimed to be annexed to the land as an incident, by the wharf act of 1851.
It is a clear principle that where the common law has annexed to property, as an incident, a privilege or right which constitutes part of its value, that incident .cannot be taken away by a change or repeal of the law. For example, the common law vests in the grantee of One hundred acres of the surface of the soil, the right to all below it, including fountains of water and oil, minerals and metals, except gold and silver, also the exclusive right to occupy the< space above it usque ad coslum. No general or special act could give to a stranger the oil wells, the coal beds, or iron or lead ores below the surface, or to the owner of two lots in a city separated by the lot of such stranger the right to erect a building
There can he no difference in this respect whether these incidents are annexed to the subject matter by the provision of the common law or by statute. Both are equally law, and only of force while law. The common law is in force by statutory enactment, at any time repealable.
1?, wiíh t\ie oftier principles oS &e common law W'ohgtó, into this state, the rule in England that the gold and silver mines (which, as royalties, were the king’s) did not belong to the owner of the soil, and the legislature, to free the people from these last vestiges of feudal or kingly oppression, had declared that these mines should belong to the owner, they would vest in him as part of his freehold, and could not he taken from him any more than his coal beds, or than the rights of wardship and primer seizin and other feudal rights could be revived and claimed as in the state, by repeal of the law abolishing them. In England, these things could he
The rights to minerals, to use water power, and to occupy the space above lands by buildings upon them, might be in some measure modified by laws passed for the professed purpose of regulating their use, and requiring payment to the state for licenses for such purposes; but if such payments were exacted as showed they were not for the purpose of enforcing proper police regulations, but for forfeiting the property to the state under this pretence, it would never be permitted.
The only question, then, is, did the wharf act of 1851 annex to lands along the shore the right to reclaim the shore in front of them, and vest this right in the owners as properly? This act was passed at the next session of the legislature, after the second decision of the Supreme Court, in Gough v. Bell, which was in July, 1850, and before the final determination of that case in the Court of Errors, in July, 1852. The general opinion of the people and of the profession throughout the state had been disturbed by that decision, modified as it was, to preserve the rights of the plaintiff. The fair inference to be drawn from the history of the claims of the riparian owner, and of the legislation and controversies relating- .to them, and from the language and provisions of the act itself, is, that it was passed to settle these controversies for the future, and to insure to the owner those rights in the shore which. it had been supposed were vested in .him, securing to the. public the use of the shore until actually reclaimed, and to vest in a local board, at that time one of the most competent and pure in the state, the power of determining in each case whether any wharfing beyond the shore would injure navigation. The public records show that the leading counsel of Gough was a member of the senate, and that the act was introduced in that body and carried through by myself. But I hold that the intention and object of a legislator, or the draftsman of a law,
It cannot be reasonably supposed that in the situation of the unsettled opinion of the courts as to riparian rights, the object of the legislation was, in this stage of the controversy, to pass an act which should seem to settle these rights, and yet by fixing no rights, to leave it open, not only in the courts, but to future changes in legislation — in other words, to confer rights only until the next session of the legislature. It was not intended to settle the controversy in the suit then pending; no legislation could divest the right then vested in the Coles family, or affect the grant of lands under water made to Bodd, or the right conferred upon the Associates of the Jersey Company to reclaim in front of Poules Hook, even without the proviso introduced, to except those grants.
The words used in the act are such as are usual and proper to declare the law on the subject matter, and adapted to confirm or alter it, whichever was intended. If the law was settled that ihe shore-owner had the right to reclaim absolutely, the words were proper to confirm that; if settled that he had such right until interfered with by the state, the words were proper to confirm that right, and to alter the law by abolishing the restriction, which was done by declaring absolutely, without annexing such restriction, that it was lawful for him to do it. The intention to make this right
When a right is conferred by general law, it is not usual or proper to use words of grant such as are used in deeds. But words are used such as are proper to create, confirm, or change the rule of law, and such are used here. They are the sa,me words that are used in many acts where the object, or rather the effect, to be produced was to confer a right of property. In the two great monopolies that have attracted most attention in this state — the bridges over the Passaic and Hackensack and the Joint Railroad and Canal Companies — the right was created by the words “ it shall not be lawful,” the correlative of the words here. And as to the bridge company, these words have been held both in this court and the Supreme Court of the United States, to vest rights as property not to be taken away by repeal. And although that court, in Rundle v. The Delaware and Raritan Canal Company, 14 How. 80, founded its judgment upon the case of The Monongahela Navigation Company v. Coons, 6 W. & S. 101, and The Susquehanna Canal Company v. Wright, 9 W. & S. 9, which hold that a license granted by the state may at any time be revoked and repealed, yet they remark “ that' the principles asserted in these cases are peculiar, but, as they affect rights to real property in the state of Pennsylvania, they must be treated as binding precedents in this court.” From which it must be inferred that such principles would not have been recognized unless forced upon that court by the highest courts of Pennsylvania.
In twelve private acts passed in the four years between 1845 and 1850, the right to wharf out is granted to individuals by the same words, and in three acts by the words “ are authorized. and empowered.” ‘ In seven private wharf acts passed by the legislature of 1851, concurrently with the wharf act, the words used are, “ it shall be lawful.” Yet no one can doubt but that these acts were intended to vest,
The right to reclaim the shore is granted by the first section, consisting of four lines; no other part of the act, save the exception in the eighth section, relates to the shore. It is a single declaration that it is lawful for the shore-owner to reclaim the shore, and, when reclaimed, to appropriate it to his exclusive use; it went at once into effect, without condition or limitation.
The second section gives the right to reclaim below low water. It does this by exactly the same words — “ it shall be lawful.” To these words in this section a construction is given by the provision in tbe eighth section that nothing in the act contained should prevent the state from appropriating to public use lands lying under water, in the same manner as if that act had not been passed. This proviso has no signification if the second section did not, without it, vest a right beyond legislation. It demonstrates that the legislature understood and intended that the words ‘At shall be lawful,” as used in the first and second sections, should vest a right beyond recall, without this provision for the case in which these lands under water should be needed for public use; they did not intend a grant or gift by which the state should be compelled to pay. for these lands, if taken before money had been, expended for improvements thereon. And although this provision does not apply to the shore, as ' it regards only lands under water,” carefully distinguished from the shore, in the first part of this section, yet it demonstrates what was understood and intended by the words “ it shall be lawful.” The act was so understood by landholders and the public. In every locality where tbe shore was of value, strips of land adjoining the shore were sold at prices founded upon the value of the right conferred, and which never would have been paid for a revocable permission.
If the lands taken by the defendants bad been below low water instead of on the shore, the provision in the eighth
The conclusions to which I have arrived are these:
1. That the owner of lands upon tide-waters has a right to the natural advantages conferred on his land by its adjacency to the .water, which, like the right to have fresh water streams flow unobstructed and unpolluted upon and from his land, and like the right to support for the natural soil by the adjacent soil, is an incident to the land, and is property.
2. That by the law of New Jersey, being the common law as adopted here, altered to suit the circumstances and necessities of the people and the genius of our governmept, the-right to wharf out from the lands situate on tide waters over the shore in front, has become an incident to such lands and a right of property.
3. That by the wharf act of 1851, the right to fill in and appropriate the shore is conferred upon the shore-owner as an incident to his property.
Lastly. That all these rights, being incidents to an estate-which add to its value, .are property, and cannot be taken away by general or special legislation, except by the power of eminent domain for public use and upon compensation.
It was thereupon ordered by the court that the vote be taken separately on the two points involved.
The first of those questions was, whether the legislature had the power to grant to the defendants in error (in the court below) the use of the premises in question, being lands in a navigable river below high water mark.
In order to express, with precision, the views of the members of the court, it was determined that those who voted in the affirmative on this first point, should express a concurrence in the view contained in the opinion of the Chief Jus
The vote was then taken on this first point in this mode, and resulted as follows, viz. :
For concurrence with the Chief Justice — The Chief Justice, Justices Bedle, Scudder, Van Syckel, and Woodhull, Judges Kennedy, Olden, Vail, and Wales. 9.
For concurrence with the Chancellor — The Chancellor, and Judges Clement and Ogden. 3.
The second question was then put, which was, whether the legislature had, in point of fact, granted to the plaintiffs in error the right to the use of the premises in question; those members who denied the existence of such grant voting to affirm, those of a contrary opinion to reverse.
The vote resulted as follows :
For affirmance — The Chancellor, The Chief Justice, Justices Bedle, Dalrimple, Scudder, Van Syckel, Woodhull, Judges Clement, Ogden, Olden, Vail, Wales. 12.
For reversal — Judge Kennedy. 1.
Judgment was thereupon entered in the following form:
“ This cause coming on to be heard at the term of June, 1870, of this court, in the presence of Cortlandt Parker and A. Q. Keasbey, Esqs., of counsel with the plaintiffs in error, and of Frederick T. Frelinghuysen, Jacob Vanatta, and Giustavus N. Abeel, of counsel with defendant in error, and the record and proceedings having been read and examined and counsel heard thereon, and the court having inspected said record and proceedings, and it appearing to the court that there is no error in the said record and proceedings, but that the judgment of the Circuit Court should be affirmed—
“ It is, on this 5th day of December, in the year 1870, or*578 dered, adjudged, and decreed, that the judgment of the said Circuit Court of Essex county, in the above cause given, be in all things affirmed, with costs, and that the record be remitted to said Circuit Court, to be therein proceeded on according to law and the practice of said court.
“ On motion of
“ G. N. Abeel,
“Attorney of defendant in error”
Cited in Paul v. Hazelton, 8 Vr. 107; Wooley v. Campbell, 8 Vr. 168; Pennsylvania R. R. Co. v. N. Y, and Long Branch R. R. Co., 8 C. E. Gr. 159; Attorney-General v. Hudson Tunnel R. R. Co., 12 C. E. Gr. 188.
Rev., p. 642.
Rev., p. 426.
Rev., p. 1240.