Gough v. Bell

22 N.J.L. 441

• Court: Supreme Court of New Jersey
• Decided: July 15, 1850
• Status: Published

Opinion

Greek, C. J.

To an action of trespass for breaking and entering the plaintiff’s close, and cutting and carring away the grass there growing, the defendant pleaded liberum tenementum, upon which plea issue was joined.

Upon this issue, it became incumbent upon the defendant to establish her title to the locus in quo. It was not necessary, however, that she should prove title to the whole close described in the declaration. The plea of liberum tenementum is construed to mean, not that the whole close described in the declaration is the soil and freehold of the defendant, but merely that part of the close in which the alleged trespass was committed. And the rule is the same, whether the close is described in the declaration by name or by metes and bounds; and the record of a judgment upon such issue, in favor of the defendant, will be evidence, not that the whole close, but that part of it only where the trespass was committed, is his freehold.

This construction, it must be admitted, is not in conformity to the language of the plea, nor to the general rule, which requires the allegation and proof to correspond. Rut it is entirely consistent with the design of the plea, which is to test the title to the particular place where the alleged trespass was committed. Smith v. Royston, 8 Mees & W. 381; Richards v. Peake, 2 Barn. & C. 918; Tapley v. Wainwright, 5 Barn. & Ad. 395; Bassett v. Mitchell, 2 Barn. & Ad. 99; 1 Arehb. N. P. 331; Phillips v. Phillips, 1 Zab. 42.

The inquiry, then, upon the issue in this cause is, not whether the defendant has shown title to the entire close described in the declaration, which she obviously has not done, but whether she has shown title to the particular place where the trespass is shown to have been committed.

I. In support of her claim of title, the defendant relies— first, upon a survey of 53£ acres, strict measure, made by the proprietors of East Jersey to Elisha Boudinot, on the 21st of May, 1803, and title thence deduced through a chain of mesne conveyances to herself.

In the survey, the tract is described.as “all that tract of unappropriated land situate along the' beach on the west side of Hudson river, and running into the same between Powles Hook and Hoboken, and adjoining land of Robert. Kennedy.” Upon the evidence, it appears that the entire survey, at the time of the location, was below ordinary high water mark in a cove or bay, commonly called Harsimus bay, opening into the Hudson river between Jersey City and Hoboken. The locus in quo, at the time of the location of the survey, was between ordinary high and low water mark; but at the time of the alleged trespass it had been filled up, .and raised above the flow of the tide, by the owners of the land adjoining the shore, and was occupied by the plaintiff as meadow or grass land.

This evidence shows no title in the defendant. The right of property in the soil covered by tide waters, in all navigable rivers and arms of the sea within the limits of the state of New Jersey is vested in the state. At the date of the survey to Boudinot there was no title in the grantors, to the premises therein described, which could pass by the grant. This can do longer be treated as an open question. It lias been decided, upon the most learned and elaborate arguments, and after mature consideration, both by the Supreme Court of this state and by the Supreme Court of the United-States. Arnold v. Mundy, 1 Halst. 1; Martin v. Waddell, 16 Peters 367.

II. The defendant further, in support of her claim of title,’ relies upon a title derived from the state of New Jersey, under and by virtue of an act of the legislature,' passed on the 8th of November, 1836. Pamph. Laws 13.

In deciding the effect of this act upon the rights of the parties, it will be necessary to consider—

1. The extent of the title of the state to the soil of navigable rivers, and its limits.

2. The power of the legislature to convey that title.

3. Whether, in fact, title to the premises in dispute passed to Nathaniel Budd under the act of 1836.

1. The ancient rule of the common law is, that the title of owners of land bounded by the sea, or by navigable- rivers where the tide ebbs and flows, extends to ordinary high water mark only. The title to the shore between ordinary high and low water mark, as well as the title to the soil under the water, belongs, prima facie, to the sovereign. Hale de Jure Maris, part 1, cap. 4 ; case of the River Banne, Davies 152 ; Woolrich on Waters 20; 3 Kent Com. (2d ed.) 427, 431 ; Arnold v. Mundy, 1 Halst. 67; Martin v. Waddell, 16 Peters, 367; Pollard’s lessee v Hagan, 3 Howard 212.

This title, which by the common law of England is vested in the king, upon the revolution, became vested in the people of the state. With this modification, growing out of the form of government, the rule of the common law prevails here, except so far as it has been modified by statute or by local common law. In this state, the rule of the common law, as to the limits of the right, remains unaltered. High water mark constitutes the boundary between the proprietary aud the sovereign titles. This point is fully settled by the cases already cited. Arnold v. Mundy, 1 Halst. 1; Martin v. Waddell, 16 Peters 367.

It has been suggested, with truth, that the question, as to the extent or limits of the sovereign title, did not necessarily arise in either of the cases last cited.

In Arnold v. Mundy, the premises in dispute are stated to have been below ordinary low water mark, although one of the counsel, in argument, represented the fact differently. 1 Halst. 2, 44. And in Martin v. Waddell, the special verdict states that the premises in dispute are situated beneath the waters of the Raritan river and bay, where the tide ebbs and flows, but whether above or below low water mark, does not appear. In the argument of Pollard’s lessee v. Hagan, 3 Howard 218, counsel insisted that the decision in Martin v. Waddell did not touch the question of title to the land between high and low water mark, and that such construction of the decision would be a surprise to the people of'this state.

In Arnold v. Mundy, the question, as to the limits of the right, was fully argued, and the question came directly before the court, under a claim of the plaintiff to the possession of the premises in dispute by virtue of his possession of the adjoining land; and upon that point the Chief Justice explicitly recognised the doctrine of the common law. He said, “ that a grant of land, bounded upon a river or other water which is navigable, and where the tide does ebb and flow, extends to the edge of the water only, that is to say, to high water mark, and no farther. All pretence of possession, therefore, in this case, as being connected with and appurtenant to the adjacent land, must fail. The grant for that could extend only to high water mark, and it could, therefore, carry with it no part of the adjacent land covered with water.” I regard this case as authoritatively settling not only the title to the soil under navigable waters, but also the limits of that title upon the shore.

The title to the shore of navigable rivers, where the tide ebbs and flows between ordinary high and low water mark, being vested in the state, have the legislature a right to convey the soil so as to invest the freehold in an individual ?

It is said in the books, that the title to the soil of navigable rivers, and to the shores of the sea, and of the arms of the sea, is a branch of the king’s prerogative, of which he cannot divest himself; that the title is in him. in trust for the public; that the rights of navigation and cf fishery, and the use-of the shores of the sea, are common rights, of which the people cannot he divested, except by their consent. Hence they cannot be .aliened by the crown. Hale de Jure Maris 11 ; Angelí on Tide Waters 21, 24, 25; Brown v. Kennedy, 5 Har. & J. 203.

The authorities, upon this point, are by no means uniform, though the better opinion appears to be, that, since magna oharía, the English sovereign has no power to alien the public domain.

Whatever doubts may exist in regard to the power of the king to dispose of common rights, there exists none in regard to the power of parliament. Parliament not only may, but does exercise the power of aliening the public domain, of disposing of common rights, and of converting arms of the sea, where the tide ebbs and flows, into arable laud, to the utter destruction of the common rights of navigation and fishing. Lowe v. Govett, 3 Barn. & Ad. 863 ; The King v. Montague, 4 Barn. & C. 598.

This power is attributed to the omnipotence of parliament, and it is said that no such omnipotence is vested in the legislature. The legislature, it is true, is not omnipotent in the sense in which parliament is so. It is restrained by constitutional provisions. Its powers are abridged by fundamental laws. But it would seem clear, upon principle, that in every political existence, in every organized government, whatever may be its form, there must be vested somewhere ultimate dominion, the absolute power of disposing of the property of every citizen. Iti this consists eminent domain, which is an inseparable attribute of sovereignty. This constitutes the omnipotence of parliament. If the legislature may dispose of the property of each individual citizen for the public good, it would seem to be no greater exercise of power to dispose of public property or the common rights of all the people for the same end. The objection to an alienation of the public domain by the king is, that lie is but a trustee for the community. But the legislature are not mere trustees of common rights for the people. These rights are vested in the people themselves; the legislature, in disposing of them, act as their representatives, in their name and in their stead. The act of the legislature is the act of the people, not that of a mere trustee holding the legal title for the public good.

The principles regulating the alienation of public property to individuals are thus clearly stated by Vattel:

“ The nation, being the sole mistress of the property in its possession, may dispose of it as she thinks ■ proper, alienate it or lawfully mortgage it. This right is a necessary consequence of the full and absolute domain. Those who think otherwise cannot allege any solid reason for their opinion, and it follows, from their principles, that no safe contract can be entered into with any nation, which attacks the foundation of all public treaties. But it is very just to say, that the nation ought to preserve its public property with great care, to make a proper use of it, and not to dispose of it but for good reasons, nor to alienate or mortgage it but for its manifest advantage or in case of a pressing necessity. This is an evident consequence of the duties a nation owes to itself. The public property is of great use, and even necessary, and it cannot dissipate it improperly without manifestly hurting and injuring itself. I speak of the public property, strictly so called, or the domain of the state. Alienating its revenues, is cutting the nerves of government. As to the property common to all the citizens, the nation does an injury to tliose who receive advantage from it, if it alienate it without necessity or without good reason. It has a right to do this, as proprietor of these possessions, but it ought to do it only in such a manner as is agreeable to the duties.of the body towards its members.”

“ The prince or the superior of the society, whatever he is, being no more t.han the administrator, and not the proprietor of the state, his authority, as sovereign or head of the nation, does not of itself give him a right to alienate or dispose of the public property, as to its substance.” “ The nation, having the free disposal of all the property belonging to it, it may convey this right to the sovereign, and consequently confer upon him that of alienating and mortgaging the public property.” Vattel, book I, c. xxi, § 257, 258, 260, 261.

In Arnold v. Mundy (1 Halst. 78), the Chief Justice said, “ The sovereign power itself cannot, consistently with the law of nature and the constitution of a well ordered society, make a direct and absolute grant of the waters of the state, divesting all the citizens of their common right. It would be a grievance which never could be long borne by a free people.”

If, by this proposition, it is meant only to assert that a grant of all the waters of the state, to the utter destruction of the rights of navigation and fishery, would be an insufferable grievance, it is undoubtedly true. It might have been added, that such grant would have been an infringement of the constitution of the United States. But if it be intended to deny the power of the legislature, by grant, to limit common rights or to appropriate lands covered by water to individual enjoyment, to the exclusion of the public common rights of navigation or fishery, the position is too broadly stated.

The contrary doctrine is supported by numerous authorities. ‘‘ We cannot doubt,” says Chief Justice Shaw, in delivering the opinion of the Supreme Court of Massachusetts, “ that a navigable stream may cease to be such, by the appropriation of the soil under legislative authority to other purposes,” as if the legislature were to erect a solid dam across a navigable creek, and permit the laud to be wholly filled up and converted into house lots. Charlestown v. Middlesex, 3 Metc. 202 ; Wilson v. The Blackbird Creek Co., 2 Peters 245.

The view, moreover, expressed by the Chief Justice, in Arnold v. Mundy, is incompatible with very numerous acts passed by the legislature of this state. The acts which authorize the erection of dams or bridges-across navigable streams, which are found upon the statute book from a very early period, the laws authorizing the erection of piers and docks, and the laws authorizing the exclusive appropriation of oyster beds to private use, are all grants or appropriations of the waters of the state destructive to some extent of common rights.

In Martin v. Waddell, Justice Thompson, in reference to the view of the Chief Justice in Arnold v. Mundy, remarked, that “ if this be the received doctrine in New Jersey, in relation to the navigable waters of that state and the oyster fisheries, they remain common to all the citizens of New Jersey, and never can be appropriated to any private or individual use; and all laws having such object in view must be utterly null and void.”

These views in relation to the title of the state to the' soil under navigable rivers below high water mark, and the power of the legislature to grant it, were expressed, as the opinion of this court, when this case was formerly before us upon a motion for a new trial. I should have deemed it unnecessary at this time to add any thing to what was then said by Justice Randolph, in whose views I concurred, but for the great importance of the questions in their influence both upon public and private rights, and the fact that they were discussed by counsel upon the argument, as open questions.

It remains to inquire, upon the evidence in this cause, whether any title to the locus in quo did or could pass to Nathaniel Budd by operation of the act of the 8th of November, 1836.

It appears, by the evidence, that the heirs of Coles, under whom the plaintiff occupied the premises in question, are the undisputed owners of the upland adjoining the cove above high water mark; that John B. Coles acquired the title by the union of two conflicting claims, in 1804, and that he and those claiming under him have since been the undisputed owners of the soil bounded by the river; that, as early as 1814 or 1815, he commenced the erection of a wharf, extending from his own land'towards the channel of the river a distance of over one thousand feet, which was completed before the passage of the law in question. He also reclaimed a part of the mud flats in front of his land lying between high and low water mark, by filling them in with earth and raising them above the level of the tide. -The spot where the grass was cut, which forms the subject of dispute, was filled in between April and November, 1836. At the time of the passage of the law, the place where the trespass was committed was not subject to the flow and reflow of the tide. No complaint is made of these erections as nuisances. There is no pretence that they were so: a useless mud flat had been reclaimed, and a wharf beneficial to commerce erected, and the question presented is, whether title to the land thus circumstanced passed by the act. It is admitted to be within the bounds of the grant, but had the legislature power to grant it ?

Was the title to the locus in quo in the state at the time of the passage of the act? The answer to that, question involves another, of much more moment, viz: whether the title to all improvements hitherto made in the state of Hew Jersey by the riparian proprietors, below the original high water line on tide waters, without the expressed assent of the legislature, still remains in the state, liable .to be aliened at the pleasure of the legislature; whether all wharves, store houses, dwellings, improvements of every description, made upon lands reclaimed from the tide, or below the original high water line, are held without title in the supposed owners, who are mere squatters upon the public domain. It is obvious that the inquiry affects property to an incalculable amount, and involves vast interests, which ought not to be disturbed, except upon the clearest principle. If the title to land thus reclaimed remains in the state, and if it be true, as was held by the Chief Justice in Arnold v. Mundy, that there can be no title by prescription in Hew Jersey, it is clear that no length of quiet enjoyment will perfect the title in the hands of the occupant, for lapse of time is no bar to the state.

Undoubtedly every such intrusion into the public domain may, at the common law, be relieved against, whether it amount to a nuisance or not. But it is worthy of notice that the claim of the state of Hew Jersey to land flowed by the tide is in no sense proprietary. It is strictly a sovereign right. The proprietary rights were at an early period severed from the sovereignty, and were vested in the proprietors, in whom, and in their grantees, they still remain. The only title which the state claims to the soil is by virtue of its sovereignty, for the protection of the public or common rights. But where the soil of navigable rivers is permanently appropriated without prejudice to the public rights, and where the state tacitly acquiesces in such appropriation, there would seem to be but little reason in her setting up a title as proprietor of the soil for no public use.

notwithstanding the acknowledged title of the state, in her sovereign capacity, to the soil of navigable rivers below high water mark, there has 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 sanctioned by the rule of the common law.

‘ The convention of 1783, between the state of Pennsylvania and New Jersey, for settling the jurisdiction of the Delaware, guarantees to each state the right of guarding the fisheries on the river annexed to their respective shores. The act of the 13th of June, 1799, (Pat. 416, § 9,) shows clearly that the legislature of this state understood this clause of the agreement as relating to fisheries below the head of tide water, which were the subject of private ownership and individual occupancy. ■ It subjects the person having command of any ship, vessel, or raft, who shall anchor upon-any fishing ground where shad are usually taken, and shall not immediately remove from the fishing ground, if such removal can be effected with safety, upon the request of the owner or occupier of such fishery, to a penalty of $60, to be recovered, with costs, by said owner or occupier. The right of the riparian proprietors to fisheries in the river Delaware are also clearly recognised by the act of 26th November, 1808, (Bloomfield 204), of 9th February, 1819, (Rev. Laws 65), of 15th February, 1819, (Rev. Laws 659), and by the existing law of 26th November, 1808, (Rev. Stat. 480). The tenth section of the last mentioned act provides, that if any person shall cast or lay out any seine into the river Delaware, within the jurisdiction of this state, beyond the right angle of the shore, of the river, and whet'e his line strikes the rivet' at low water mark going out, or suffer it to swing beyond the right angle of the shore of the river, and where his line strikes it at low water mark coming in, except by unavoidable accident, every person so offending, and being thereof convicted, shall forfeit and pay, for every offence, $25 to the person against whose land such trespass shall be committed.

The act of 27th December, 1826, (Rev. Stat. 479) which prohibits nonresidents from fishing in any of the bays, flats, rivers, or waters within the jurisdiction of this state, contains a proviso, that nothing in the act shall be so construed as to affect the right or privilege of any owner or tenant, not resident in this state, from fishing upon or opposite to his own shore in this state. Such repeated and unequivocal legislative recognitions of a right, furnish proof of its existence which cannot be disregarded. In treating of fisheries, Mr. Griffith says, “ this species of property, from the earliest times, has been the subject of exclusive enjoyment and alienation, like any other;” our courts of justice have always recognized the rights of several fishery. Trespass is sustained for intrusions and ejectments upon the possession and title, as in other cases and estates. Griffith’s Annual Law Reg. 1290, note 1.

In the case of Den ex dem. Bispham v. Rice, which was decided in this court at September term, 1825, the principal object of the action was the recovery of a valuable fishery on the river Delaware. Part of the premises are described in the declaration as “ a fishery.” The plaintiff recovered, although this cause was tried after the decision in Arnold v. Mundy, and was earnestly litigated under the guidance of the ablest counsel, most of whom were engaged in that cause. I am not aware that a doubt was expressed as to the right or title to the fishery, in either of the parties, by reason of the paramount title of the state.

In Bennett v. Boggs (Baldw. 60), the Circuit Court of the United States recognized the existence of rights of fishery in the riparian proprietors upon the river Delaware within the jurisdiction of this state, and sustaiued the validity and constitutionality of the laws regulating and protecting them.

This right of fishery, so far at least as it regards the river Delaware, cannot rest upon any actual or supposed proprietary grant. The title of the proprietors of New Jersey never extended beyond low water mark upon the Delaware. The title of the state previous to the revolution was limited by that boundary. Bennett v. Boggs (Baldw. 60.)

Nor does it depend upon any statute law of the state con- . ferring the right. The earliest legislation upon the subject of the fisheries in the Delaware recognizes the title of the riparian proprietor as an existing right.

Nor can the claim rest on prescription. If a title by prescription can exist at all in this state, many of these fisheries are of modern origin, and cannot be prescribed for.

This claim, it is clear, is totally irreconcilable with the roles of the ancient common law touching the properly in the soil and shores of navigable rivers. In Yard v. Carman (Penn. 936), Justice Pennington expressed himself strongly against the existence of an exclusive fishery in the river Delaware, as a violation of the principles of the common law. If the claim rested for its support alone upon the principles of the common law of England, it cannot be sustained.

The right of the riparian proprietors to an exclusive right of fishery iu the tide waters of New Jersey in front of their land must rest, it is apprehended, in custom or local usage variant from the common law. There is then, I conceive unquestionably, in New Jersey a local common law affecting the title of riparian proprietors upon tide waters, and conferring upon them rights and privileges unknown to the common law of England. I use the term riparian proprietors, not in its strictly appropriate common law sense, as indicating the owner of the ripa or bank of streams not navigable, but in the sense in which it is frequently used in the books to indicate the owner of the land adjoining the shore of tide waters above the ordinary flow of the tide.

It remains to inquire whether this extension of the rights of the riparian proprietor, in derogation of the principles of the common law, is limited to the right of fishery, or whether it extends beyond it. It is a fact, not controverted, that, from a very early period in the history of the state, the riparian proprietors upon navigable streams have enjoyed the privilege or exercised the right of appropriating the shore in front of their lands between high and low water mark to their own use, by the erection of docks and wharves, and by filling in and reclaiming the ground from the dominion of the water. These improvements are found upon the shores of the Hudson and the Delaware, of the Raritan, the Passaic, and the Hackensack, and probably of all the numerous navigable (ids niters that intersect the larger portion of the state. In very n /,y instances, it may be presumed, all traces of the origin ¡'! high water line are long since obliterated. Yo public iueoir auienee has resulted from the practice, and no serious detriment ’/tas been ¡¡ceaidoned to the common rights of the people of the f.ate; on the contrary, the facilities of commerce and navigation í ave been increased, lands, which otherwise would have remain oi worthless, have been by private enterprise reclaimed and ms de available, and property of great and increasing value has fc¿en >Jded to the wealth of the state. The lands thus improved have i/cen held and enjoyed as private property, and have been taxed as such, without a doubt being entertained as to the validity of the title.

The practice must have originated here. It had no common law origin, nor could it have been derived from the Dutch settlers, for by the civil law which prevails in Holland the title of the sovereign extends as far as the highest winter flood. It may possibly, as was suggested upon the argument, have had its origin, as in other states, in some early ordinance or statute which is now lost. It is, perhaps, more probable that the practice originated in the fact, that all titles were derived from the proprietors; that their grants upon navigable streams, in some cases in express terms, extended to low water ium);, and were always understood to cover the entire shore. Tiiv proprietors both of East and West Jersey, by their original concessions, granted convenient portions of land for wharves and keys, as well as for streets and other public purposes. Leaving & Spicer 20, 391.

And in East Jersey these public landings and ferries were laid out and appointed, as were highways and bridges, by persons in the several counties, designated for that purpose by the legislature. In these grants, made when the sovereign and proprietary titles were united in the lords proprietors, the public wharves and docks undoubtedly had their origin.

Prior to the decision in Arnold v. Mundy, no instance, it is believed, can be found of a law passed for the mere purpose of authorizing a‘ riparian proprietor to construct wharves, or otherwise to improve land, below high water mark.

The very numerous meadow acts, both public and private, to be found upon the statute book, are not regarded as an exception to the truth of this remark. They do not purport to authorize the riparian proprietors to appropriate to their use any part of the public domain. On the contrary, they authorize the owners of meadows to improve their own land, and for this purpose they subject a body of landholders to common regulations, and, in some instances, authorize the construction of dams across navigable streams. The great body of meadow thus to be improved lay above ordinary high water mark, or did not properly constitute the shore of navigable streams. These acts, therefore, cannot with propriety be regarded either as a recognition by the legislature of the title of the proprietors to lands lying between high and low water mark, nor, on the other hand, as a grant of a right to the exclusive appropriation of the public domain.

There are also laws creating corporations with extensive powers and conferring upon them the right, among others, of constructing piers and wharves, and otherwise occupying the laud below high water mark. Aside from these acts, which, I repeat, constitute no exception to the truth of the remark, upon a careful, examination of all the statutes, public and private, under the proprietary, the colonial, and the state governments, I find, prior to the decision in Arnold v. Mundy, no statute conferring upon the riparian proprietor the right of appropriating the shore between high and low water mark to his own use, by reclaiming the land, the erection of wharves, or in other modes.

During this period, there are found repeated recognitions of . the existence of wharves constructed by the riparian proprietor. Thus, by the preamble of the act of 22d November, 1802, it appears that Nathaniel Budd, who then occupied, the shore adjoining the premises now in dispute, had built a dock and ferry stairs on the river, and the legislature thereupon authorized the construction of a road to the dock, an'd the erection of a ferry from the dock to the city of New York. It does not seem to have been apprehended, either by JBudd or by the legislature, that any legislative authority for the construction of the dock or any express recognition of the right was at all necessary.

The earliest act which authorizes the riparian proprietor to build a dock in front of his land, was passed on the 28th of February, 1839. This act, as well as most others recently passed, confers upon the proprietor the right of constructing a dock or pier below low water mark, or some other power, for which legislative sanction may be deemed essential. The right of the riparian proprietor to occupy the shore in front of his land, does not appear to have originated in any legislative grant, public or private, nor has legislative sanction been deemed essential to its exercise.

On the trial of Arnold v. Mundy, the Chief Justice, in charging the jury, said, “ the intermediate space between high and low water mark may be exclusively appropriated by the owner of the adjoining land, by building thereon docks, wharves, store houses, salt pans, or other structures which exclude the reflow of the water.” This remark, it is true, was made in connection with another, which proved to be erroneous, viz: that the title of the adjacent owner extended to the water’s edge, and fluctuated with the ebb and flow of the tide. But the remark is entitled to much consideration, as exhibiting the view of that learned and experienced judge, of what the law of the state was, before his impression had been affected by a reference to foreign authorities. Indeed it does not appear that he ever changed his opinion upon the particular point in question.

In Griffith’s Annual Law Register 1292-3, (1821-2) it is said, that “ when the original proprietors of New Jersey have, by conveyance, survey, or otherwise, alienated any part of the proprietary or common land, such grantees possess the soil, whether dry land or land covered with water, (when the grants or surveys extend to or are bounded on rivers or waters) in as full right as such soil, rivers, and waters were held by the duke of York, or Berkley and Carteret, in 1663-4, subject to the jus publieum. All property in New Jersey, and whatever is the subject of property, in land or water, has some individual and exclusive owner, and such has ever been the understanding of our legislatures and courts of justice.

In a note to this passage, Mr. Griffith, in reference to the proprietary grants, says : “ These grants describe the premises, and convey the fee, with all the rights and privileges of the original proprietors; but lands bordering on rivers, bays, and streams of water are usually described as bounded by such river, &c., or up or down the river : and this manner of describing boundaries is common to all rivers or waters, whether fresh or tide waters. The construction, as to the extent of such boundaries, has always been the same, both as to fresh and tide water rivers, in respect of private ownership and privileges, viz: that tlie middle of the channel was the line of property between them.”

These opinions were overruled by the decision in Arnold v. Mundy, and they are not cited to show what the law is. But they are important, as showing the prevalent view of the profession in regard to the legality of the claim of the riparian proprietor to erect wharves, and to occupy the land to low water mark, without legislative authority for that purpose.

The counsel for the state of New Jersey, in arguing the case of Martin v. Waddell (16 Peters 387), said, “ the right of the ¡riparian proprietors to wharf out to the public river is a local custom in New Jersey.” He also said, that, “ by long usage, the shore fisheries have grown into private rights belonging to the ¡riparian owner •” and these facts were relied upon in support of the view adopted by the court adverse to the claim of the proprietors.

This modification of the common law exists in other states, and the right of the adjoining proprietors to appropriate the shore between high and low water mark to their exclusive use is recognised and protected. It rests in some instances upon statute, in others upon custom on local common law.

Thus in Massachusetts, by an ordinance in 1681, it was provided that the proprietor of land adjoining the sea should hold to low water mark where the tide does not ebb and flow more than one hundred rods. The ordinance was subsequently annulled, but the usage still prevails, and has acquired the force of a local common law. This ordinance never extended to Plymouth as positive law, it has nevertheless become a settled rule of property throughout Massachusetts, and also in Maine. The right, therefore, is acquired not by force of the ordinance, but by custom or usage. Storer v. Freeman, 6 Mass. 435; Sale v. Pratt, 19 Pick. 191; Angell 225, 226.

So in Rhode Island, the custom has been general for the adjoining proprietor to augment his land by embanking in the water, without reference to an early colonial law, which has been ascertained to exist, sanctioning the custom. Angelí 234.

In Connecticut, there is no statute abrogating the common law, yet the usage of the owners of the land to high water mark to wharf out against their own land, forms a part of the local common law, founded on immemorial usage. Chapman v. Kimball, 9 Com. 38; 1 Swift’s System 341.

In Pennsylvania, the proprietor of the adjoining land has the ownership of the soil to low water mark. This has been adopted as the common law of the state, independent of the statute. Hart v. Hill, 1 Wharton 124; Ball v. Slack, 2 Wharton 508 ; 2 Smith’s Lead. Cas. 147, note.

Most of the Atlantic states have, either by direct legislative enactment or by force of local usage, adopted the principle, that the title of the riparian proprietor extends to low water mark, or, the title remaining in the state, that the owner is entitled to the exclusive appropriation of the shore by wharfing out of by raising the land above the tide, and that upon such appropriation the title vests in the adjoining proprietor.

In Yew Jersey, as we have seen, the title of the state extends, as at common law, to high water mark, but it is 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 extend beyond the actual high water line. That any encroachment upon the shore, or other part of the public domain, may at all times be restricted and controlled by legislation, is admitted. That any erection prejudicial to the common rights of navigation or fishery may be abated, is not denied. Rut in. the absence of such legislative restriction, where no nuisance is created, the riparian proprietor may appropriate the shore between high and low water mark to his own use. The custom of making such appropriation, long enjoyed and universally acquiesced in, constitutes a local common law, which this court will recognise, and which it would be alike unsafe and unwise to disregard.

I am of opinion, therefore, that the act of the 8th of November, 1836, did and could convey to Nathaniel Budd no title to soil from which the flow and reflow of the tide had been excluded by the improvements of the riparian proprietors at the time of the passage of the law; and inasmuch as it appears, by the evidence, that the place where the trespass had been committed had been reclaimed prior to the passage of the act, and was not then subject to the flow and reflow of the tide, that the defendant has failed to sustain her plea, and that judgment must be rendered for the plaintiff. I have arrived at this conclusion' not without anxious solicitude, increased by the fact that the bench are divided in opinion. It is a source of real satisfaction to know, that if I have fallen into error, that error may be redressed in a higher tribunal.

Carpenter, J. I do not suppose that any title has been successfully set up by the plaintiff, except what depends upon his rights as riparian owner. It is not necessary, on this point, to add to what has already been said in the opinion delivered by Justice Randolph on a previous occasion. The different grants, the titles to which became vested in J. B. Coles, under whom the plaintiff claims, extended to the river, but they were as clearly limited to the edge of the river. The plaintiff then stands, in relation t® the premises, simply in the position of a riparian owner.

On the other .hand, the title of the defendant rests solely on the validity'and extent of the grant of the legislature, by the act of November 8, 1836. It is obvious that the survey to Boudinot is to be laid entirely out of the question. If titles derived under proprietary grants can, under the local law' of this state, extend to low water mark, the survey can be of no avail in this controversy, for the plaintiff shows a prior title. If they extend to high water mark only, it is of as little avail, for the survey was laid upon land which, at the time it was made, was entirely covered with water. It forms no ground for the commencement of an adverse possession, for I am not aware, from any thing in the case, that the defendant, or those under whom she holds under color of title from that survey, ever made any improvements or reclaimed any land previously covered with water. Sathaniel Budd, who built or extended a wharf on the ground covered by the survey, and established, or attempted to establish a ferry, did all this, not under this survey, but under the authority of an act passed in 1802, prior to the survey, and while he held the ferry house and premises under the Kennedy title, which is now vested in the plaintiff.

The premises described in the plaintiff’s declaration include some land not comprised within the bounds of the survey, as claimed by the defendant, being land which was above high water mark in 1804, when the survey was laid. The plaintiff seems to suppose, the plea of title being general to the whole premises described in the declaration, that he will therefore, at all events, be entitled to judgment in the present suit. But it is well settled otherwise, and the very point has, not long since, received the consideration of this court. The plaintiff is not bound to carry his proof of trespass to every part of the close mentioned in the declaration, nor is the defendant bound to support his justification to all parts. It is sufficient for the defendant if he show title to so much of the premises as includes that part on which the alleged trespass was committed. The record, it is said, would be decisive evidence in a future action ; but it would be evidence only as to the part of the place in dispute, and it would be necessary to show by proof which part it was. Phillips v. Phillips, 1 Zab. 42; Bassett v. Mitchell, 2 B. & Ad. 99 ; Smith v. Royston, 8 M. & W. 381; Dorman v. Long, 2 Barbour’s (N. Y.) R. 214.

The plaintiff, then, is a riparian owner, and it will be necessary to examine the extent and character of his rights to the shore, in order to test the validity of the title by grant set up by the defendant. This inquiry involves questions in whicli not only the rights of this plaintiff, but of many other citizens, to very valuable property iu this state are involved. Wharves, docks, embanked meadows, &c., to a vast extent, have been erected and improved on the shores of our tide waters, in regard to few of which has any special authority been sought from the legislature, nor, until very lately, has it been supposed that such authority was necessary.

It must be admitted that, in the country from which we have chiefly drawn our rules of law, the doctrine now to be considered has long been well settled. According to the common law rule, the boundary of the riparian owner, in streams above the tide, extends ad filum medium aquae: he is prima facie the proprietor of half the land covered by water. If the same person be the owner of lands on both sides of the river, he owns the whole river to the extent of the length of his lands, subject to the jus publicum, if the river be navigable and a highway. Again, on the seashore, the bays and arms of the sea, and in navigable rivers where the tide ebbs and flows, the title of the riparian owner (meaning by this the owner of land bounded by such waters), unless by royal grant or prescription, extends only to the shore or high water mark. The shore, or space between ordinary high and low water mark, as well as the bed of the river or arm of the sea, is said to be vested in the king, in trust for the common benefit of all his subjects. Whatever opinion may have formerly been entertained, it seems to be now settled, that though held by the king, and subject to be transferred by his grant since .magna charta, the right of property in the bed or shore of the sea and its arms can only be transferred subject to the jus publicum, the common right of navigation, &c. While the soil of the shore is said to be the property of the crown, and has been communicated, in many instances, by grant to the subject, yet it can only be in subservience to the public right of the subjects of the realm. The private right of the crown may be disposed of, but the public right of the subject cannot, even if it be' within the terms of the grant.

This prerogative notion of the jus privatum, which has for its object the personal aggrandisement and emolument of the king, is, however, there carried to a greater extent than can be deemed applicable to our situation or to the character of our institutions. The common law is adopted by us, not absolutely as it prevailed in England, or even here before the revolution, but as modified by our institutions. This doctrine probably originated in the policy of the law of England, to assign to every thing a certain legal proprietor. Those things not capable of being exclusively occupied and enjoyed naturally fall theoretically, and to some extent practically, under the dominion of the sovereign, from whom, by fiction of law, all titles are mediately or immediately derived. The doctrine may thus have been established, and the title of the king in the tide waters, or the land under them, which he held for the common benefit of the people, as their representative, while it served to carry out this fiction of his being the universal occupant of all property destitute of other owner, had also its obvious practical end. The public use of these highways was properly and effectually protected by thus placing them in an especial manner under the protection of the sovereign, as the general conservator of the public rights and immunities. Here though we may properly reject the mere doctrine of the jus \privatum, yet still the title which the king held, as trustee for the people, may be considered as lodged in the sovereignly of the state.

But while in England the king holds the right of property in the beds and shores of tide waters, as the trustee of the people, and his grants are subject to public rights, yet parliament represents the people themselves, and, uncontrolled by any supreme constitutional law, may grant the rights of the people. Acts of parliament have, it is believed, in some instances been passed, by which the public rights to the shore have been transferred to individuals; in order to be reclaimed, the effect of which has been to cut off the adjacent owner from all access to the water. One instance of such legislation gave rise to the case of Lowe v. Govett, 3 B. & Ad. 863, in which not the validity, but the precise extent of such parliamentary grant was drawn in question

But the omnipotent effect (if I may use the phrase) of an act of parliament, in the absence of any supreme law by which drdinary legislation can in that country be controlled, causes such grants to be there considered in a very different light from that in which they may be here considered, in reference to the rights of the riparian owner. Here, if he have any special and peculiar rights from his position as such owner, however derived, I think it may be assumed that they are within the protection given by the constitution, of which he can be divested, even for public use, only after due compensation. It is a principle, which may be assumed without questioning in the least the power of the legislature to grant or control mere public rights, compensation must be first made before the citizen can be required to give up his property for the benefit of the community at large, much less may the property of one person be taken without his consent, and given to another. Such legislation would be repugnant to the first principles of justice, and has been held.void, not merely upon the special provision of constitutional law, but upon those great fundamental principles which support all government and property. Even in England these principles have been supposed, by many judges, to be'sufficient to cheek and control the regulations of an act of parliament. But here it has often been ruled, upon grounds which cannot be gainsaid, that the government cannot lake the property of one citizen, for the mere purpose of transferring it to another, even with compensation, when the public are not interested in such transfer. If property cannot be taken for private purposes, even with compensation, much less may it be taken without compensation. In either case, as has been said, the ruling is so evidently founded on principles of natural justice and reason, as not to need the aid of either argument or authority. Rogers, J., in Lambertson v. Hogan, 2 Barr. 24. See 1 Kent 451, 455, and cases; Angell on Watercourses, § 461 (ed. 1850); Kevins, J., 3 Harr. 203; Story, J., 2 Peters 658; 18 Wend. 14; Ib. 56; 1 Barr. 314; 5 Ib. 145; 10 Ib. 338; 4 Hill 140.

Independent of technical ownership, there are dieta, if not decisions, to show that the riparian owner in this country has peculiar rights, incident to his position, which will be protected aud maintained. “ lie has,” said Justice McLean, in Bowman’s devisees v. Waltham, 2 McLean 376, (cited in Angell on Tide Waters 171) “the right of fishery, of ferry, and of every other right which is properly appendant to the owner of the soil, and he holds every one of these rights by as sacred a tenure as be holds the land from which they emanate. The stale cannot, either directly or indirectly, divest him of any of these rights, except by the constitutional exercise of the power to appropriate private property for public purposes ; and any act of the state short of such appropriation, which attempts to transfer any of these rights to another, without the consent of the proprietor, is inoperative and void, aud can afford no justification to the grantee in an action of trespass.” Indeed access to the water was held, in a late case in Pennsylvania, to be a vested right of such owner, of which he could be deprived for a public purpose only after just compensation, and that an act would be unconstitutional which gave no equivalent for the value of the landing. Pittsburgh v. Scott, 1 Barr. 314, 315.

If the doctrine, as thus propounded, can be maintained, the right of fishing upon his shore, the right of ferry, the right of access to the water, aud even the right of accretion, belong to the shore owner, as incident to his position • it would seem to follow, that no grant for a mere private purpose can be supported which interferes with the established rights of such owner: it would simply be to take the property of one citizen, in order to transfer it to another. But I do not intend to discuss whether this doctrine, as thus broadly stated, can be supported, as I believe it to be clear, that under the local law of this state, to which I am about to refer, the plaintiff has a title which is beyond the reach of such legislative grant.

It has, undoubtedly, been the policy of this state (as of other states in this country) to encourage embankment and improvement upon its shores, and particularly of the marshes aud fiats along its tide margin, which are entirely useless in their original condition without the aid of art and industry. The safest and best encouragement has been given to the expenditure of labor and capital, by permitting the riparian owner to extend his shore as far as expedient, and as far as it might be extended, without interfering with any public right. The public, under this policy, have been accommodated with landing places essential to commerce and to travel, and valuable and productive meadows have taken the place of offensive and useless wastes. In regard to wharves, it was said, by one of the learned counsel in Martin v. Waddell, (16 Pet. 387), that the right of the riparian owner to wharf out into the public river was a local custom in New Jersey. The remark was an admission by counsel against their case, and recognized the existence of an usage, which I think unquestionable, in the local history of New Jersey. It explained a fact, which might otherwise, perhaps, have been used against them, by referring,it to the local common law of the state, which by the explanation was limited in its application. The right of the owner of the adjacent land to appropriate the shore, by building wharves, docks, or other structures, by which the reflow of the water might be excluded, was recognized by Chief Justice Kirkpatrick, in. Arnold v. Mundy (1 Halst. 10), though in different stages of that cause he seemed to vacillate between the local law of New Jersey and the common law rule. One of the counsel of the defendant, on the argument of this cause, was constrained to admit that such had been the practice and the privilege of the riparian owner, though he denied the right.

To the same policy we owe our successive meadow laws, which seem like so many recognitions of the right, as well as of the custom of the riparian owner, to embank the low grounds on the margin of our tide waters. They apply, in very terms, to those grounds “ usually overflowed by the tide.” Rev. Laws 82.

This right or privilege to wharf out or embank is undoubtedly subject to all the restrictions necessary to secure the rights of the public. Public rights, as of navigation for instance, are undoubtedly paramount, to which those of the riparian owner must yield when they come in conflict. The absolute rights of the state to control, regulate, and improve for public purposes the navigable waters within its limits, will not be disputed, by which the rights of such owner may be incidentally affected, perhaps, to some extent, without bringing his case within any constitutional restriction and without entitling him to compensation. And yet under the local law of this state, as I take it, the wharves and additions so made become part and parcel of the upland to which they are united, and the property of such owner, except against the state, when she proceeds in the legitimate mode of indictment or information for the protection of the public rights.

In England, if a wharf or other structure be extended into the stream below high water mark, it is considered a purpresture or encroachment, which, by the aid of legal process in the appropriate court, he may demolish or seize and arrest at his pleasure. It may not be necessarily a nuisance, though a purpresture. Hale de Jure Maris, Hargr. 85. The king may seize upon the encroachment, not, so far as I have been able to ascertain, by the direct action of himself or his alienee, but by information filed in the Court of Exchequer, for the protection of the jus privatum. The remedy for purpresture, it is laid down, is either by information of intrusion at common law, or by information at the suit of the attorney general in equity. The attorney general then, on the part of the crown, may proceed for the purpose of protecting either - the jus privatum of the crown from purpresture, or the jus publieum from nuisance, by information in equity and personal decree. See Angelí on Tide Waters 200; Eden on Injunc. 223, 260, and eases.

Undoubtedly here any encroachment may be prevented or arrested by the proper action of the state; or if made, and it interfere in any manner and to any extent, even the least, with public rights, it may bo declared a nuisance, and abated. But rejecting the mere prerogative notions of the jus privatum, the state, after she permitted and encouraged the erection of wharves, docks, and other additions to the upland by the riparian owner, cannot then convert them to her own use without compensation, or transfer a title to some third person as her alienee. If wharves and clocks be erected under the sanction of the local law of the state, it seems equally clear that their use and value cannot be destroyed by a grant in front or around them.

It is sufficient, to dispose of this case, to establish this modification of the common law, and that, under this local rule, the accessions to the upland of.the plaintiff were lawfully made. In this I fully concur in the opinion delivered by the Chief Justice ; but I do not feel at liberty to stop here. I am strongly impressed with the belief that, under our local law, the title of the riparian owner, as derived from proprietary grants, extends to low water mark. Of course, if so, it is to be understood in a qualified sense, and subject to the public rights of navigation, &c., as already more particularly remarked upon. If the local rule can be shown to go to this extent, the plaintiff shows a prior title, which it will- not be pretended can be destroyed by mere legislative grant to another.

The common law in regard to the shore has been much modified in this country, not by statute merely, but by usage. I) is not necessary to recur to the cases cited, which are mostly collected in Angelí on Tide Waters, to show in how many of the states of this Union the title of such owner, subject to the jus publicum, is held to extend to low water mark. In many, the title of the owner on the margin of tide waters is held to reach to that extent, in so many indeed, that perhaps it may not be improper to state it as the general rule of this country. I am not aware that in this state, prior to this cause, the point has ever been distinctly presented for judicial consideration. In Martin v. Waddell and in Arnold v. Mundy there are dieta, but in neither ease was it necessary to consider the title of the riparian owner, whether it went to low water mark or not; and the remarks of the judges in regard to the common law rule were merely incidental to the principal question, and ought not, therefore to be considered as governing this case. The common law rule, as to the ownership of the shore, was correctly stated ; but whether it had been adopted in this state, did not arise in either of those cases, and cannot therefore, in my judgment, be considered as decided. It will be seen, from the statement of the case in Arnold v. Mundy (1 Halst. 2), that the oyster bed which gave rise to the controversy was bare only at very low tides, but was below ordinary low water mark. The plaintiff claiming under a survey from the proprietors of East Jersey, it was sufficient to defeat his action that such title could extend only to the edge of the tide water, whether that margin was at high or at low water mark. Notwithstanding the diota of Chief Justice Kirkpatrick, undoubtedly entitled to much weight from liis learning and experience, but who seems at different stages of the cause, as already said, to have hesitated between the common law rule and the local usage of the state, the decision really goes no farther, than that a grant bounded upon a navigable river extends to the edge of the water only, and so is the syllabus of the reporter. It may be added, that the remark of the learned Chief Justice, argumentatively in his charge to the jury, that all pretence of possession, as being connected with, and appurlenaut to the adjacent land, must fail, would be equally applicable whether the title extended to high or to low water mark, the contest being in regard to land below low water mark. In Marlin v. Waddell, the jury found that the premises in dispute were situated beneath the waters of the Raritan river and bay, where the tide ebbs and llows. The jury further found that the defendants in the ejectment were in possession, and had complied with the regulations of the act of assembly, which regulated the setting apart land under water for the purpose of oysters. (See 16 Peters 379, 380). This, as well as the prior case, involved, as is. well known, the right of the proprietors to make grants of land covered by the tide waters of the Raritan bay and river; but in neither was the question as to the margin in relation to the rights of riparian owners drawn directly in question. What was said on that point was, in both cases, only incidental to the main question.

In Bennett v. Boggs, Baldw. 60, it seems to have been taken for granted, by the counsel on both sides and by the court, that the rights of the proprietors, as riparian owners, extended to low water mark in the Delaware, though no farther, and that to that extent they might claim title. The same rule has been sometimes otherwise incidentally recognised, in regard to which the meadow laws may be again referred to. The titles of the holders under proprietary grauts are recognised, and they, or a majority of them, are enabled to act in concert for the improvement of their meadows, under regulations specially provided for in those laws. So, also, the act, passed February 20, 1830, to secure the public revenue arising from lands let for planting and taking oysters, which in the ninth section saves certain rights to persons claiming from the shore to low water mark, under and by virtue of a grant from the proprietors. Comp. 306.

Shore fisheries belonging to the riparian owner, and annexed to his soil, except as separated by conveyance or devise, and thus turned to an easement, have by long usage become the unquestioned subjects of private property. They are closely connected with the local law in regard to the shore, and the title to this species of property has been repeatedly recognised by legislative acts and judicial decisions.

But all this is referred to merely in corroboration of the inference which I would draw from the universal understanding of the profession and others, as to the local rule previous to the construction lately given to the eases of Arnold v. Munch and Martin v. Waddell. Until of late, it was universally supposed that in this state the title of the riparian owner extended to low water mark. The usage in regard to proprietary grants, so far as I have been able to learn, has been in accordance with 'that understanding. In the many original surveys and subsequent conveyances of land bounding on the tide waters of the Delaware and its tributaries, which have come under my observation, I have no recollection that I-have ever seen an instance in which, if the margin was defined, the document did not call for low water mark. I have made considerable inquiry of experienced surveyors and scriveners in the lower part of the state, and have been informed that in that section titles to land on tide waters extend to low water mark, and that such is invariably the ease when the description defiues the margin,

(a) The flats on the shore, previous to embankment, have always been held by such title, aud until of late, since the supposed adoption of the common Jaw rule, I have never heard of even an attempt to defend, in trespass or other action, on the ground that the title of the plaintiff, as riparian owner, did not extend below high water mark.

The origin of this local rule does not seem difficult of conjecture. The first surveys were made by the proprietors, when they held both the government and ownership of the soil, and when their power to grant to low water mark will not bo questioned. The royal grants to the proprietors, through the duke of York, conveyed a title to low water mark on the exterior tide waters of the province, certainly on those of the Delaware. As a question of jurisdiction, those grants were unquestionably to that extent, and subject to the jus 'publicum. I suppose the right of the proprietors to the soil, to the same extent, to be equally clear. They granted titles to the same extent. The policy and usage of the state I have before referred to. In 1702, the proprietors surrendered to the crown all the powers of government, but reserving all their rights of property in the soil. The construction of those grants aud of this surrender is to be found in the uniform practice of the proprietors, never questioned by the state from that time to the present. The proprietors, and those holding under them, have so made grants to the present day, and, until of late, without question as to the title conferred. Vast improvements have been placed on the shore upon the faith of that title. It will astonish and alarm owners of land bounding on the tide waters of the state, if, after a usage such as I have referred to, they practically learn that they hold them only by the forbearance of the state. I have no personal knowledge of the usage in East Jersey, though from the character of two small surveys, in the survey of the common lands of Bergen, brought before us, as well as from other obvious considerations, I infer it to be the same as on the Delaware.

The act complained of in this case as a trespass, aud justified on the ground of title in the defendant, a title resting on the alleged grant by the state, was done on ground reclaimed by the plaintiff, or those whom he represents. Large sums of money had been previously expended for the same object, but this spot had been reclaimed, as appears by the evidence stated in the case prior to the time when the act was passed by which it is contended this land was transferred to Budd. The title of the act under which the defendant claims purports to relate only to the right of the state to land under water, and the preamble speaks of it as land lying on each side, and in front of a ferry wharf. I do not doubt but that this act, by aid of the title and preamble, might be so construed as to hold that, if intended as a conveyance at all, and not as a mere release, it was not intended to convey any land raised above water at the time of its passage, or even in progress of being raised. Deference to the legislature would seem to require such construction, for we cannot suppose they meant to transfer the land so raised by the capital and labor of one, by a mere arbitrary act of sovereign power, to another, with no public object in view, but for the mere private benefit of their alienee. We are not however, in order to escape such injustice, obliged to resort to any nice construction of the words of the act. If the riparian owner may lawfully extend his shore, then the plaintiff has a vested right, which is not the subject of such legislative grant, nor, under the act in question, can the grantee of the state exercise any right on that shore which will interfere with the established rights of the riparian owner. ' But if, as I strongly think, for the reasons I have endeavored to state, the title of the riparian owner under our local law technically extends to low water mark, still less can such grant be supported. In either case the judgment must be for the plaintiff.

But another point has been urged by the counsel of the plaintiff, which, perhaps, ought not to be passed without notice. It is said that the title set up by the defendant under the grant of the state must fail because of false suggestion, and the consequent imposition practised on the legislature, apparent on the face of the act.

It appears that Budd, who applied for the law, held, in 1802, under the heirs of Archibald Kennedy, a part of the premises now belonging to the plaintiff. The title of Kennedy was controverted by the trustees of the town of Bergen, but the titles or claims, both of Kennedy and of the trustees, were, on the -1th of February, 1801, purchased by J. B. Coles, and are now vested in the plaintiff. In 1802, Budd, a mere tenant, procured an act to be passed, which — reciting his tenancy under Kennedy — that he had built a dock or wharf for the purpose of a ferry, and established a ferry • that his undertaking was of general utility, but that he was unable to proceed in his contemplated improvements for that object in consequence of the controversy in regard to the title — authorised him to appropriate two acres of the property in dispute, then in his occupancy, for the purposes of a ferry, and to lay out a road to it from the Kewark turnpike. Such legislation in favor of a mere tenant upon the rights of a landlord, without more explanation than appears, seems to be somewhat remarkable, even if there was a conflicting claim of title. The act, however, farther provided a mode by which the value of the property appropriated by him for this supposed public purpose should be ascertained, and, when the controversy as to the title should be finally decided, then paid to those entitled to it. If those ascertained to be the owners should be unwilling to sell, they might retain the property, upon paying Budd the value of his improvements. Aeb 22d November, 1802, Pamph. 152. How long Budd maintained the ferry, under what circumstances or on what terms he abandoned the enterprise, does not appear in the case; but he did subsequently abandon it, and the premises, with the improvements, if any were made, were given up to the owners of the property. Budd, it seems, at the time of the passage of the act of 1836, did not own one foot of land adjoining the shore to which that act was intended to apply. It is true he had, on the 2d day of January, 1804, taken a deed from Elisha Boudinot for the survey, laid on 21st May, 1803, on the flats in front of the property belonging to Kennedy, and then in the tenancy of Budd. But this survey gave no title. As before said, if proprietary grants could extend only to high water mark, it was of no avail, for it was laid upon flats ordinarily covered by the flow of the tide. If such grants could extend to low water mark, then there v/as a prior title.

The titles upon that shore, being in this situation, subsequently it seems to have been supposed that the dormant claim of Budd under the Boudinot survey might be made available for the purposes of speculation. The case shows that, on the 1st of October, 1835, he conveyed all his title to that survey to Willis Hall, the consideration, expressed on the face of the deed, being the large sum of $25,000. There is nothing in the case to show that Budd, when he made this conveyance, had the slightest pretence of title on that shore; except under this survey, and standing upon this alone, it is not seen how his claim could be worth as many cents. Coles, the riparian owner’, and those under whom he held, had previously expended many thousand dollars upon the shore, and Coles, in 1836, was engaged in making additional expensive improvements. It is urged that under such circumstances, in 1836, Budd applied to the legislature, and that his suggestions appear upon the face of the act which he obtained. It is said that he represented himself to be a riparian owner, and, also, to hold a doubtful title under the Boudinot survey to the flats in front of him. The preamble of the act, which is to be taken as the suggestion of the party, does áeem to be capable of such construction. It states the representation to be, that Budd became seized and possessed of 53J acres at Harsimus, by virtue of a deed from Boudinot, “ which said tract of land was surveyed to the said Elisha Boudinot, and located by special order of the proprietors of New Jersey, in front and on each side of the ferry wharf of Nathaniel Budd, at Harsimus ” <&c,, and that doubts had been suggested as to his title, by reason of some supposed title in the state of New Jersey. The state of New Jersey had never descended to speculate upon the accidental value of a shore in a particular locality. With that liberality which has always characterized her, and apparently intending to carry out her previous generous policy towards a supposed riparian owner, having a meritorious /but doubtful title to the shore, by the act which follows thbi preamble, she conveyed, or, more properly speaking, released all her title in the survey referred to to Nathaniel Budd. I say released, for, notwithstanding the phraseology of the enacting clause, the legal character and effect is to be adjudged from its intent and meaning, rather than from the mere words employed, if that intent and meaning be obvious. It has been frequently so adjudged in regard to conveyances, (a) and this, as a private act, is to be treated as a mere instrument of conveyance, which binds only privies and not strangers. Dwarris 634-5; Greenl. Cruise, Lib. 3, tit. xxxiii, secs. 32, 39, &c. Possibly, then, this act might be construed simply as a release, as the recital seems to show that its intent was to confirm the doubtful title of Budd, by releasing any supposed or possible title of the state.

But, passing by what might be said as to the construction of the act in this respect, which it is unnecessary to consider, it is urged that the material matters so suggested were, as appears by the case, entirely untrue. Budd was never seized or possessed of the flats covered by that survey, either in fact or in lawhe had no actual possession, none such is pretended, and the survey conveys no title upon which a possession by construction of law could be supposed to rest. But it is not upon this merely that the point is pressed. The preamble suggests, in direct terms, that the survey was located in front and on each side of the ferry wharf of Budd. In this connection, it is asserted that this is equivalent to an assertion that he was the owner of that wharf, and, as such, placed him before the legislature on strong grounds when he asked to be confirmed in his title to the flats in front of that wharf. If this be taken as the meaning of the suggestion, the evidence in the case certainly shows that it was utterly untrue, for Budd did not own that ferry wharf or one foot of the upland adjoining. The wharf which he had once held in possession for the use of the ferry, already referred to, and then projected, he had long before abandoned. The wharf, as well as the land adjoining, was the property of John B. Coles. It is alleged that a grant by private act obtained from the state by such misrepresentation is void.

Grants by the state by private acts, in regard to their validity, seem to stand much, on the footing of grants by the king, and the doctrine is well settled that the king’s grants, if obtained by false suggestion, are void. 2 B. C. 348 ; Com. Dig. “ Grant” (C. 8, 9); Bac. Abr. “Prerog.” (F. 2); Chit. Prerog. 397.

If it appears on the face of the grant that the king was deceived by false suggestions the grant may be treated as absolutely void, whenever the title is incidentally drawn in question, as in Legáis case, 10 Co. 109, where it was so ruled on ejectment. It does not seem necessary that it should be set aside or declared void by direct proceeding. See Parmenter v. Gibbs, 10 Price 412; 2 Rol. Abr. 191 S. pl. 2, cited Chit. Prerog. 330, note.

This doctrine in regard to private laws, when obtained by misrepresentation, is here of great importance, where special legislation is so readily obtained without notice to other parties to be affected. The mischief is one-scarcely to be avoided under the facility which attends the most enlightened legislation, and private rights seem to need for their protection the application by the courts of these sound principles by which its inadvertencies may be corrected. In this base it seems difficult to resist the conclusion which is the object of the argument so presented to the court; but it is not necessary to express any decided opinion upon this point under the view taken of another part of the case.

Randolph, J. When this case was before us on a former occasion, it merely appeared that the locus in quo (where the alleged trespass was committed) was below what was formerly the high water line, and the conflict was between the rights of a riparian owner, who had docked or filled out below high water, and the grantee of the state below and up to that point. 1 Zab. 156. The court decided in favor of the latter, and allowed a new trial upon the common law principle, that the rights of the riparian owner did not extend below high water, and that the grant of the state was good and effectual to cover the premises. Neither of these positions, as I understand, are directly controverted at this time by the court; but; as the case now comes up from the circuit, the point of the alleged trespass is defined to be between high and low water line j and a local common law of New Jersey is urged as extending the rights of the plaintiff, the riparian owner, to low water line, either as owner of the soil or for the purpose of constructing thereon a dock. If the plaintiff has been successful in maintaining his position, it will enable him to recover in this suit, although the defendant’s title to the whole of the fifty-three acre tract will be good, excepting so much thereof as lies above low water line or as is covered by the prior constructed wharf.

Although the opinions delivered in the cases of Arnold v. Mundy, Martin v. Waddell, and Gough v. Bell, covered this question, and considered the whole matter settled up to and below high water mark, yet, as the right to the shore between low and high water mark was not necessarily strictly involved in either case, it cannot be considered as definitely settled. If the case really depended on the priority of time between the date of the defendant’s grant and the time of the filling out the plaintiff’s dock, I should have some hesitation in giving judgment for the plaintiff on that ground ; for the defendant’s grant, which covers the loom in quo, is dated the 8th of November, 1836, while the evidence of plaintiff’s right, acquired, if at all, only by filling out, reads thus ; “ Where the grass was cut, was done (i. e. filled out) between April and November, 1836, it was done by the 10th November, at any rate.” But, according to the view which I shall take of the case, it will not depend on this question of priority. It is certainly correct lhat several of the states have adopted a rule different from that of the common law, in extending the rights of the riparian owner to low, instead of to high water line; thus in Massachusetts the rule has been adopted to extend the line to low water, provided it is not more than one hundred rods from high water mark ; but this rule or law was settled by a colonial ordinance of 1611; and although it did not extend in terms to Plymouth or the province of Maine, and was in effect repealed by the repeal of the charter, yet it established the rule, which has ever since been followed in both Maine and Massachusetts. Angelí on Tide Waters 224, 226. A similar rule was established in Rhode Island under the statute of 1707, lb. 236 ; and in Pennsylvania and Maryland they have also statutes on the subject, which permit the riparian owner to wharf out to low water. Angelí 235, 247. Whether there is any statute in Connecticut, I have not been able to ascertain, but presume the rule adopted has been based on some early and definite action of the legislature or courts. In New Jersey we have no such statute, nor have I heard of any such rule being insisted on until the second argurnent of this cause. Wbat was said by the learned counsel, in Martin v. Waddell, only referred to the practice, which had obtained in the state, of erecting wharves without an act of the legislature, and to no special custom which then existed, and under which a right was claimed. Until the decision of Arnold v. Mundy a very general impression prevailed that all the unlocated land in the state, whether under water or otherwise, belonged to the proprietors, and neither the state nor any of its citizens felt sufficiently interested to scrutinize the encroachments of the land owners upon the water ; and as the proprietors sold their locations by the acre, it is presumed that they would extend the survey as far. into the water as any purchaser desired to go. The survey of this very tract to Budd, in 1803, for fifty-three acres of land entirely under water, is evidence of the fact. Indeed the practice is, that the purchaser of the proprietary right of location places his survey where, he pleases, the proprietors giving no warranty title; hut this is considered evidence of no rule or common law, that the rights of either the proprietors or their grantees extend below high water mark. As a general rule, when the proprietors themselves made the deed or patent (as they formerly did), the bounds were not extended beyond high water; and in all three of the suits, when the riparian owner has claimed to go below high water, the claim has been not by the force of his boundary or description, but in consequence of his ownership of the upland. I have examined, in the office of the secretary of state, a large number of patents, and I have not found a single deed which calls for a line below high water; in general, they are merely bounded on the river or bay, as the plaintiff’s deeds are i.n this case. Numerous deeds may be found describing the water line thus: “on the west side of Hudson river,” “ lying along on the west side of Hudson river,” “ lying and being on the west side of the bay that leads up into Hudson river, and so stretching along said hay,” “along the east side of the Delaware river ;” and the grant to the town of Wood-bridge, in Middlesex county, is “ bounded on the east side of Arthur Kull river, otherwise called the sound.” It is dated iii 1669, and under that line of description extends from the Raritan river around to the mouth of the Rahway river. And the deeds from which these descriptions are taken extend up each side of the plaintiff’s land for many miles, showing"that at that time there was no general custom or common law prevailing in that part of the state that riparian owners should go farther than the common law rule allowed.

These are all East Jersey deeds. With regard to those in West Jersey, I have not been successful in my investigation, but think it not improbable that some, perhaps many, may there be found which call for the low water line, for this reason, that the boundary of the state under the grant from the duke of York is different on the western, from what it is on the eastern - side of the state. With the latter, it embraces all the water and water rights that a state can claim under a general boundary on the ocean, arm of the sea, bay, or navigable river, whereas on the west it is the land or country lying east of Delaware bay or river; and this description only extended the right of the proprietors or state under the grant to low water on the Delaware bay and river, though, by the declaration of independence and the compact with Pennsylvania, it was subsequently extended and settled to the middle of the bay or river. 1 Chal. Opinions 59 ; 4 Wash. C. C. 384, Corfield v. Coryell; 1 Bald. 140, Bennet v. Boggs; 5 Wheat. 374

Then, as neither the sovereignty nor propriety of New Jersey on the Delaware extended beyond low water mark, it is not improbable that deeds would be made or considered as extending to that line, for the proprietors would have no object in leaving the shore without owning the land or river to which it might be attached. The common law jurisdiction would extend to low water, and convenience would extend the right of the soil as far, when another sovereign would be the owner of all below that point. Indeed, although the proprietors, standing in the place of the king, might grant the shore by express words, though not by implication, oum, littore maris eidem adjacente. Hale de Jure Maris, ch. 403; 3 Kent. 347 ; Blundell v. Cottrell, 5 B. & Ald. 268 ; Davies 149. Yet it may be doubted whether the right to the shore could originally exist, unless as dependent on the upland or the river.

These remarks have been made for the purpose of showing, that although along the Delaware there may be some reason, for supposing that the common law rule may not prevail to its fullest extent, yet if it does not, that there are some special reasons operating, which do not exist in other parts of the state, particularly in the part where this controversy arises; and also, as showing a sufficient reason why the impressions of professional men and others in the western part of the state was, that the rule, as regarded the land owners, was the low, instead of high-water line. Indeed, prior to the decision of Arnold v. Mundy, it was their impression that the entire bed of the river was private property. Griffith 1291.

It has also been urged, that the right of fishery, which exists in the Delaware, and perhaps some other rivers in the state, and the sanction which has been given them by the legislature, and also the legislative acts for the protection of low meadows sometimes covered by the tide, afford at least a persuasive evidence of the existence of a rule.different from that of the common law. After a very full consideration, I am unable to give the argument the weight which is claimed for it; so far as it applies to the Delaware it may be embraced in t-he considerations already stated ; in regard to the whole matter, the very fact that the authority of the legislature was constantly invoked, would seem to raise a doubt of the general or special common law authority. But although the right of fishery, like the .right of way or the right of common, may be severed from the farm or manor, and any appropriate suit or action may be brought respecting it, yet it is dependent on the upland for its existence, and does not in fact exist, in gross or by any common law rale, detached from and independent of the land. Griffith’s Law Reg. 1295, note.

Whether a man’s land extends to high or to low water, he has the exclusive right of fishery and ferry appendant thereto, that is, the right of hauling seines or landing thereon. Any man may fish or sail his boat opposite; he only can fish and land on it, and without this latter privilege the fishing and boating are of little value; and hence his right of fishery. Whatever regulation the legislature may make does not affect the question under consideration: and so of the acts respecting the meadows, and perhaps some other statutes; although reference may be had to rights to low water mark, they must afford but weak and defective evidence of an existing, permanent^ and general custom or rule of the place different from the well settled principles of the common law. But it is said the rights of the riparian owner extend to and in the water; that they are vested rights, of which he cannot bo deprived. In the language of Judge McLean, in Bowman’s devisee v. Waltham, 2 McLean’s C. R. 376, “the right of fishery and ferry, and every other right which is properly appendant to the owner of the soil,” the riparian owner holds “by as sacred a tenure as he holds the lands from which they emanate.” No doubt a man’s water rights are as sacred as those to his freehold, and a railroad or canal company, or an individual, can no more cot him off from the enjoyment of the one than from the use of the otherj both are alike under the protection of the law and the constitution. But the question is, what are these appendant rights in salt water or navigable streams ? Because a man bounds on the ocean or a canal, it does not follow that he has any greater right to -appropriate the subject of his boundary in the one case than in the other. There is a vast difference between a right and a privilege. The owner of a newly created cottage may enjoy the privilege of opening his windows opon a view of his neighbor’s beautiful gardens, lawns, and privacy, but he has no right to do so, and his view may be shut out at the pleasure of the owner. So a man bounding on a fresh water or non-navigable stream, may have not mere privileges, but rights to the stream and in the stream, of which he cannot be deprived, except by his consent or under the constitution; but if his boundary be on the sea or navigable waters, his rights extend only to high water mark; his privileges, as far as his senses can perceive or appreciate. What right has he beyond his boundary? All beyond belongs to the state; and although that may be slow to deprive him of any privilege, yet can it be disputed that the state would have a right to fill up in front of any riparian owner to high water mark, and erect thereon a fortification or light-house, or any other necessary object ? And if no land w'as taken above high water, would any private property be taken for public use, any that the riparian owner must be paid for under the constitution ? What is lawful for the state is lawful for its grantee, though it might seem very inexpedient and very unkind for either thus to interfere with valued privileges.

The land owner has a right to the alluvial, if its accretion be imperceptible, but if otherwise, in a body it belongs to the state, (Angelí 149, 165) unless, when created by a sudden revulsion, it may be identified, as the case of the Goodwin estate, when it would still belong to the original owner. Shulls on Aquatie Rights 116. And yet, in either case, the owner of the upland would be cut off from the water without remedy for his loss. Has the owner a right to fill or dock out in front of his upland, or will the sanction of time give him the right? His rights are circumscribed by his boundary, which is the high water line; any filling up or erection below that amounts to either .a nuisance or a purpresture; if it interferes with the public rights of navigation and fishing it is a nuisance, which may be at once abated, or the individual causing it indicted and convicted ; any building or encroachment, or intrusion, below high water, though not amounting to a nuisance, is a purpresture, which the state may demolish or seize at pleasure, or proceedings in chancery may be taken to prevent ■ the wrong. Angelí 199, 200. All these proceedings are based upon the idea that the land owner’s rights terminate at high water; and although below that point is public property, he is just as liable for an injury done to that as if it had been private property,, though the remedy may be slow and of a different character. Yo doubt, since the settlement of the stale, many wharves have been built without the sanction of law, and others with it, partly from the general impression that all the property belonged to the proprietors, and partly because, in nearly every case where a dock has been constructed, the state had very little interest in the matter j the soil that was filled in being worthless, except for a dock, the state took no notice of the act. But time runs not against the state, and no length of lime can sanction a nuisance or encroachment on the public (Angelí 237) or ripen the act into a right, much less can it change the principles of the law itself. Where a man has docked out on the public without a permissive statute, he has done it at his peril, having gone beyond his own boundary ; yet, in nine times out of ten, he may feci himself perfectly safe in doing so, for the reasons before adverted to ; but he cannot at any length of time turn around and claim his intrusion as an act of right, or as giving him a right. The same principio would convert the lands of the proprietors or of the United States from the true owners to be the property of any who might intrude upon them ; and, under such a rule, of what value would they be to the lawful owner ? So if we sanction a principle so at variance with the common law and the interests of the state, of what value will be the public oyster grounds or the flats in the vicinity of large cities, which, in one location only, have been estimated to be worth a half a million of dollars ? Yay, if priority of occupation by the riparian owner, though but for a day or two perchance, as in this case, by filling out, will give a title paramount to the legislative grant of the state, of what value can such grant or such property be ? If the race for title is between the tardy process by legislative grant, attainable for sixty or seventy days only in the year, and the stimulated vigilance of private enterprise, it will not bo difficult to tell who will inevitably be the owner of a river flat or any portion of laud covered with water, whenever it shall bo likely to become valuable. I am at a loss to ascertain upon what possible principle such a claim can be founded. I know, if the state were to carry out the strict principle of the common law against all persons who have intruded their wharves into the public waters without license, that much inconvenience and some apparent injustice would arise; but there is great difference between the state yielding up a principle that must destroy all its public rights, and enforcing that principle where it might do much private injury without any public good ; besides it is no sound reason against a correct principle, that evil might grow out of its execution : it is enough to meet evil as it arises ; the power of the state is ample to protect the rights, and even the wrongs of all its citizens. And if, by possibility, any evil should arise by sustaining the common law doctrine, the legislature has ample authority to grant protection. And I am not prepared to affirm that this court has not the authority to say, that although time does not run against the state, yet after a wharf has been peaceably enjoyed for twenty years or more, they will presume that a deed or license has been granted, so as to quiet titles in future. 3 Halst. 176; 6 East. 208; 1 Am. Lead. Cases 506. The grants for landings in the Grants and Concessions of East and West Jersey (Learning & Spicer 25, 391) do not apply to the present question respecting rights below high water, but only to appropriations of upland “ for churches, forts, wharves, keys, harbors, and for public houses.”

This suit is brought by the riparian owner in the possession of the land filled up against the grantee of the state for a trespass. Had it been against any body else it might have been sustained, for the possession only is good against all the world, exceptiug the state and its grantee, the rightful owner, and as against his title the plaintiff, in my opinion, has failed, judgment should be rendered in favor of the defendant.

Judgment for plaintiff.

Affirmed, 3 Zab. 624.

Cited in State v. Jersey City, 1 Dutch. 528; O’Neil v. Annett, 3 Dutch. 293; Cobb v. Davenport, 3 Vr. 380; Stevens v. Pal. & Newark R. R. Co., 5 Vr. 537; Paul v. Hazelton, 8 Vr. 107 ; Nooley v. Campbell, 8 Vr. 166 : Barnett v. Johnson, 2 McCar. 489; Del. & Rar. Can. and C. & A. R. R. & Tr. Co’s v. Rar. & Del. Bay R. R. Co., 1 C. E. Gr. 367; Keyport Steamboat Co. v. Farmers’ Trans. Co., 3 C. E. Gr. 22; Atty. Genl. v. Del. & B. B. R. R., 12 C. E. Gr. 8-10; Atty. Genl. v. Del. & B. B. R. R., 12 C. E. Gr. 642.

The surveyors general of East Jersey and of West Jersey, it is understood, have made like answers to inquiries addressed to them by the Chief Justice. T. P. C.

See Den v. Camp and Jessup, 4 Har. 14S.