Ingraham, J.
The first ground of objection to the complaint is the want of jurisdiction over the defendants.
The defendants are a foreign corporation. If it were necessary to proceed against them by attachment, to compel their appearance, the objection might have weight. Such is not this case. The defendants have appeared, and so far as respects bringing them into the court, and within its jurisdiction, that has been done by their voluntary act. Where a foreign corporation, by its officers, comes within this state, it becomes subject to the laws of the state, and to the process of the courts ; and where such a corporation, by its officers, is guilty of a wrong, or commits a trespass, within the state, I know of no rule by which such a corporation can es[503] cape the consequences of its illegal acts, by setting up that it holds its existence under a foreign government.
For the purpose of this question, we must assume that the plaintiffs claim to have a right to the waters in the river where the defendants have taken possession. By the demurrer, they admit having taken .such possession, and that they threaten to continue such possession, and to extend it. By the 134th section of the Code, service may be made on the officers of a foreign corporation in this state, or where the cause of action arose therein. What mode of service was adopted does not appear from the complaint; nor is .it necessary to state, in the complaint, the mode by which it is expected to acquire such jurisdiction over the defendants.
We have these facts, then, viz. a claim of title to, and jurisdiction over the waters where the defendants have taken possession ; they, by their officers, then being in possession, and without authority from the plaintiffs, show sufficient facts to give jurisdiction, if the process can be served on the defendants. If there is an improper service, that must be remedied by a motion.
Second. The remaining grounds are, that the court has ño jurisdiction of the subject of the action, and that the facts do not constitute a cause of action.
The decision of these questions depends upon the views which are taken of the acts of the defendants, and, to some extent, renders an examination necessary as to the right of the plaintiffs to maintain any action for acts done in the river, west of the center line thereof.
This right, if it exists, is to be found in the agreement or treaty made between the states of New York and New Jersey, in 1833. (a)
[504] There is no doubt that, in navigable waters, where the tide ebbs and flows, the sovereign is the owner of the soil under the water, and of the waters which cover it. And where such waters form the boundary between two nations, such ownership is vested in each, to the portion of the stream adjoining the territory and extending to the center.
These rights may be varied by treaty, or by original grants or prior possession. I do. not deem it necessary to enquire what rights the state of New York possessed to this portion of the fiver, prior to 1833. Whatever those rights were, they were all merged in the provisions of that agreement. By that instrument, the center of the river and bay was adopted as the boundary line between the states of New York and New Jersey, on that part of the river where these encroachments have been made.
By the third article of the agreement, the exclusive right of property in and to the land under water, lying west of the middle of the hay of New York and west of the middle of that part of the Hudson river, was declared to he the prop[505] erty of New Jersey, and by the same article the state of New Jersey was to have exclusive jurisdiction over the wharves, docks and improvements made and to be made on the shore of that state.
If we were to stop here, there would be no difficulty in disposing of this case. The title to the land under water, in the sovereign, includes all right to the waters, even the land, and vests in the sovereign the sole right of jurisdiction, and, of course, the right to control the encroachments upon such waters.
The other provisions, however, of this treaty alter materially the rights of the parties. The first part of the third article gives to the state of New York exclusive jurisdiction over all the waters of the bay, and all the waters of Hudson river, and of and over the lands covered by said waters to low water mark on the New Jersey shore, subject to the right of property in the land therein given to New Jersey. The whole case resolves itself into the inquiry, whether a jurisdiction in [506] the state of New York, exclusive over the waters of the river and over the land under the water, while the fee of the land has been vested in another party, (New Jersey,) gives a right of property therein sufficient to maintain an action for an encroachment upon it.
It must be remembered that these grants, on. both sides, are between, the sovereigns, and .are not subject to the ordinary rules applicable to grants made to a subject or citizen. The sovereign power can grant all it possesses, or may grant a part and retain a part; and a grant of the land to one and a reservation of the water to the other, vests in the grantees all the rights which the sovereign originally had in the part granted, or reserve to the grantor all rights in the part reserved, which was not intended to be conveyed.
By the treaty, the right to the soil is transferred to New Jersey, while the exclusive jurisdiction of and over all the waters of the bay and river to the low water mark, on the New [507] Jersey side thereof, and of and over the lands covered by the waters, is granted to New York.
The question then arises, what is meant by jurisdiction, and whether such grant of jurisdiction conveys any right which can be the subject of an action.
This jurisdiction canpot be the mere right to serve process, either civil or criminal, for that is provided for by articles six and seven, and it is made coequal to both the contracting parties, and is not exclusive.
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Ingraham, J.
The first ground of objection to the complaint is the want of jurisdiction over the defendants.
The defendants are a foreign corporation. If it were necessary to proceed against them by attachment, to compel their appearance, the objection might have weight. Such is not this case. The defendants have appeared, and so far as respects bringing them into the court, and within its jurisdiction, that has been done by their voluntary act. Where a foreign corporation, by its officers, comes within this state, it becomes subject to the laws of the state, and to the process of the courts ; and where such a corporation, by its officers, is guilty of a wrong, or commits a trespass, within the state, I know of no rule by which such a corporation can es[503] cape the consequences of its illegal acts, by setting up that it holds its existence under a foreign government.
For the purpose of this question, we must assume that the plaintiffs claim to have a right to the waters in the river where the defendants have taken possession. By the demurrer, they admit having taken .such possession, and that they threaten to continue such possession, and to extend it. By the 134th section of the Code, service may be made on the officers of a foreign corporation in this state, or where the cause of action arose therein. What mode of service was adopted does not appear from the complaint; nor is .it necessary to state, in the complaint, the mode by which it is expected to acquire such jurisdiction over the defendants.
We have these facts, then, viz. a claim of title to, and jurisdiction over the waters where the defendants have taken possession ; they, by their officers, then being in possession, and without authority from the plaintiffs, show sufficient facts to give jurisdiction, if the process can be served on the defendants. If there is an improper service, that must be remedied by a motion.
Second. The remaining grounds are, that the court has ño jurisdiction of the subject of the action, and that the facts do not constitute a cause of action.
The decision of these questions depends upon the views which are taken of the acts of the defendants, and, to some extent, renders an examination necessary as to the right of the plaintiffs to maintain any action for acts done in the river, west of the center line thereof.
This right, if it exists, is to be found in the agreement or treaty made between the states of New York and New Jersey, in 1833. (a)
[504] There is no doubt that, in navigable waters, where the tide ebbs and flows, the sovereign is the owner of the soil under the water, and of the waters which cover it. And where such waters form the boundary between two nations, such ownership is vested in each, to the portion of the stream adjoining the territory and extending to the center.
These rights may be varied by treaty, or by original grants or prior possession. I do. not deem it necessary to enquire what rights the state of New York possessed to this portion of the fiver, prior to 1833. Whatever those rights were, they were all merged in the provisions of that agreement. By that instrument, the center of the river and bay was adopted as the boundary line between the states of New York and New Jersey, on that part of the river where these encroachments have been made.
By the third article of the agreement, the exclusive right of property in and to the land under water, lying west of the middle of the hay of New York and west of the middle of that part of the Hudson river, was declared to he the prop[505] erty of New Jersey, and by the same article the state of New Jersey was to have exclusive jurisdiction over the wharves, docks and improvements made and to be made on the shore of that state.
If we were to stop here, there would be no difficulty in disposing of this case. The title to the land under water, in the sovereign, includes all right to the waters, even the land, and vests in the sovereign the sole right of jurisdiction, and, of course, the right to control the encroachments upon such waters.
The other provisions, however, of this treaty alter materially the rights of the parties. The first part of the third article gives to the state of New York exclusive jurisdiction over all the waters of the bay, and all the waters of Hudson river, and of and over the lands covered by said waters to low water mark on the New Jersey shore, subject to the right of property in the land therein given to New Jersey. The whole case resolves itself into the inquiry, whether a jurisdiction in [506] the state of New York, exclusive over the waters of the river and over the land under the water, while the fee of the land has been vested in another party, (New Jersey,) gives a right of property therein sufficient to maintain an action for an encroachment upon it.
It must be remembered that these grants, on. both sides, are between, the sovereigns, and .are not subject to the ordinary rules applicable to grants made to a subject or citizen. The sovereign power can grant all it possesses, or may grant a part and retain a part; and a grant of the land to one and a reservation of the water to the other, vests in the grantees all the rights which the sovereign originally had in the part granted, or reserve to the grantor all rights in the part reserved, which was not intended to be conveyed.
By the treaty, the right to the soil is transferred to New Jersey, while the exclusive jurisdiction of and over all the waters of the bay and river to the low water mark, on the New [507] Jersey side thereof, and of and over the lands covered by the waters, is granted to New York.
The question then arises, what is meant by jurisdiction, and whether such grant of jurisdiction conveys any right which can be the subject of an action.
This jurisdiction canpot be the mere right to serve process, either civil or criminal, for that is provided for by articles six and seven, and it is made coequal to both the contracting parties, and is not exclusive.
It is the jurisdiction granted by one sovereign power to another, and, in that case, it means the right of exercising authority, of governing and controlling. This right is granted by the state of New Jersey to the state of New York, and the right by that grant is made exclusive, both as to the land and the water, up to low water mark on the New Jersey shore. And this jurisdiction and control is exclusive, even of New Jersey, except in three particulars ; one, of title to the land under water ; one, of the jurisdiction over wharves, docks and [508] improvements, and one, of the fisheries. These three rights are reserved to New Jersey. What are these rights ? The rights to the soil would prevent the state of New York from granting to another the land under water on the New Jersey shore. Such a grant, if made, must he made by the state that owns the fee. The right to a jurisdiction over the wharves, &c., naturally follows from the other, and is the reservation of the title and control of the land after it is made out of the water, on the shore of the state. The right to the regulation of the piling is immaterial to the questions before us. These are all the powers reserved to New Jersey. I cannot doubt but that this grant of exclusive jurisdiction to the state of New York, with the above exceptions, confers upon the state full power and authority to preserve the river and bay from injury by strangers having no authority so' to act. The people of the state of New York have the sole right to exercise authority and control over the water, and the land covered by water, against all persons who have no right to take possession. That they may have such an interest in the •water alone as would enable them to maintain an action against persons who, without right, thus seek to interfere with that control or jurisdiction, I have no doubt. It is not at all an uncommon thing for persons owning the bed of a river to convey to others a right to the water, and such a right may be protected and preserved by action, even against the grantee. In People v. Canal Appraisers, (33 N. Y. R. 461,) Chief Justice Davies discusses, at great length and with great ability, the rights-of the state to navigable waters, and, although not deciding any of the questions raised in this case, yet he shows there that, both in the water and on the land under the water, the sovereign power possesses rights and estates which may be preserved and protected.
If this were an action against the state of New Jersey, very different questions would arise. It was in this view that the learned justice tried the case at the special term, and his decision is based more upon the right of New Jersey to build [509] wharves and piers on her shores than upon the real merits of the case, as presented on this demurrer. I am free to admit that the article which gives to New Jérsey the exclusive jurisdiction over wharves, docks and improvements made, and to be made, upon the shore of that state, would, if New Jersey was the defendant, raise a question of much importance and difficulty. That such a clause might be construed as giving to New Jersey the right to build piers and wharves below low water, is apparent, for the state of New York never claimed to own above low water mark, and her rights are only recognized to that extent in this treaty, and the term shore must have a more extended construction than between high and low water mark, because the same word is afterwards used, as places where vessels might get aground while navigating the river.
But that case is not before us on this demurrer.
By the demurrer, the defendants admit that the plaintiffs have the sole and exclusive jurisdiction over the bay and water of the Hudson river, and of the land covered with water, to low water mark on the New Jersey shore, as stated in the agreement, between the states of New York and New Jersey ; that these waters are arms of the sea, in which individuals can have no right or title ; that the defendants have taken possession of a tract of land under water in said bay and river and displaced the water by filling in the same to the extent of eight hundred acres in a portion of the said bay and river over which the plaintiffs have exclusive jurisdiction ; that the defendants are engaged in filling in to a larger extent and will cause serious damage to the harbor of New York; and that the said defendants are so doing, without any right and without any grant or permission of the plaintiffs. By their admissions the defendants appear as simple wrongdoers and trespassers, committing a serious injury to the rights and property of the plaintiffs, which they seek to restrain. I see no good reason why, under such a state of facts, the defendants should not be restrained from doing fur[510] ther wrong and damage, until it appear that they have some better right and authority than their mere will and pleasure. To sustain this judgment would be an invitation to any body at their pleasure to sink blocks and piers in this portion of the river, regardless of the rights of New York.
Nor can it be said that it does not appear that this filling is not between high and low water mark and therefore not within the jurisdiction of the plaintiffs, because it is averred that this filled in ground has been connected with the main shore of New Jersey by a wooden tressle work about one mile in length. Even if it be conceded that after this land is made by the filling in, it becomes- subject to the jurisdicdiction of New Jersey, still that does not relieve the defendants, because it is averred that they were engaged in the work and intend to éxtend their filling to a much larger extent; and as to that I have no doubt of the plaintiffs’ right to interfere, until the defendants show some better authority than now appears in these papers.
I forbear to express any opinion upon the right claimed by New Jersey to build piers and wharves and make improvements on her shore. When the defendants by an answer claim that they have the authority of the state of New Jersey for their acts, that question will properly arise. It cannot be available on this demurrer.
Something was said about the extent of the county of New York, in connection with this action. The boundaries of the state extend to low water mark on the New Jersey shore. (1 R. S. 54.) That statute has not been altered. The county of New York, on its western boundary, extends to the west bounds of the state. (1 R. S. 5th ed. 3.) This description covers, the disputed territory, so far as the boundaries are designated by any law of the state; so that the action is properly brought in this district.
The conclusion to which I have arrived is that the demurrer is not well taken; that the state of New York has such a right, title and interest in the waters of the bay and Hud[511] son’ river as will enable them to maintain this action ; and that the defendants are mere trespassers, and show no defense thereto.
[New York General Term,
April 1, 1867.
The judgment should be reversed, and judgment ordered for the plaintiffs on the demurrer, with leave to the defendants to answer on payment of costs.
Leonard, J. concurred.
Sutherland, J. dissented,
Judgment reversed.
Leonard, Ingraham and Sutherland, Justices.]
“Article I. The boundary line between the two states of New York and New Jersey, from a point in the middle of Hudson river, opposite the point on the west shore thereof, in the forty-first degree of north latitude, as heretofore ascertained and marked, to the main sea, shall be the middle of said river, of [504] the bay of New York, of the waters between Staten Island and New Jersey, and of Raritan hay to the main sea, except as hereinafter otherwise particularly mentioned.
Article II. The state of New York shall retain its present jurisdiction of and over Bedlows and Ellis’ Islands, and shall also retain exclusive jurisdiction of and over the other islands lying in the waters above mentioned, and under the jurisdiction of that state.
Article III. The state of New York shall have and enjoy exclusive jurisdiction of and over all the waters of the bay of New York, and of and over all the waters of Hudson river lying west of Manhattan Island, and to the south of the mouth of Spuytenduyvel creek, and of and over the lands covered by the said waters, to the low water mark on the westerly or New Jersey side thereof, subject to the following rights of property, and of jurisdiction of the state of New Jersey, that is to say:
1. The state of New Jersey shall have the exclusive right of property, in and to the land under water lying west of the middle of the bay of New York, and west of the middle of that part of the Hudson river which lies between Manhattan Island and New Jersey.
2. The state of New Jersey shall have the exclusive jurisdiction of, and over the wharves, docks and improvements made, and to be made, on the shore of the said state, and of and over all vessels aground on said shore, or fastened [505] to any such wharf or dock; except that the said vessels shall be subject to the quarantine or health laws, and laws in relation to passengers, of the state of New York, which now exist, or which may hereafter be passed.
3. The state of New Jersey shall have the exclusive right of regulating the fisheries, on the westerly side of the said waters, provided that the navigation be-not obstructed or hindered.
Article IV. The state of New York shall have exclusive jurisdiction of and over the-waters of the Kill Van Kull, between Staten Island and New Jersey, to the westernmost end of Shooter’s Island, in respect to such quarantine laws and laws relating to passengers as now exist, or may hereafter be passed under the authority of that state, and for executing the same; and the said state shall also have exclusive jurisdiction, for the like purposes, of and over the waters of the sound, from the westernmost end of Shooter’s Island to Wood-bridge creek, as to all vessels bound to any port in the said state of New York.
Article V. The state of New Jersey shall have and enjoy exclusive jurisdiction of and over all the waters of the sound, between Staten Island and New Jersey, lying south of Woodbridge creek, and of and over all the waters of Raritan bay, lying westward of a line drawn from the light-house at Prince’s bay to the mouth of the Mattavan creek, subject to the following rights of property and of jurisdiction of the state of New York:
1. The state of New York shall have the exclusive right of property in and [506] to the land under water lying between the middle of said waters and Staten Island,
2. The state of New York shall have the exclusive jurisdiction of and over the wharves, docks and improvements, made and to be made, on the shore of Staten Island; and of and over all vessels aground on said shore, or fastened to any such wharf or dock, except that the said vessel shall be subject to the quarantine or health laws, and laws in relation to passengers of the state of New Jersey which now exist, or which may hereafter be passed.
3. The state of New York shall have the exclusive right of regulating the fisheries between the shore of Staten Island and the middle of the said waters, provided that the navigation of the said waters be not obstructed or hindered.
Article VI. Criminal process, issued under the authority of the state of New Jersey, against any person accused of an offense committed within that state; or committed on board of any vessel being under the exclusive jurisdiction of that state, as aforesaid; or committed against the regulations made or to be made by that state, in relation to the fisheries mentioned in the third article; and, also, civil process issued under the authority of the state of New Jersey, against any person domiciled in that state, or against property taken out of that state to evade the laws thereof, may be served upon any of the said waters within the exclusive jurisdiction of the state of New York, unless such person or property shall be on board a vessel aground upon or fastened to the shore upon the state of New York, or fastened to a wharf adjoining [507] thereto; or unless such person shall be under arrest, or such property shall be under seizure, by virtue of process or authority of the state of New York.
Article VII. Criminal process, issued under the authority of the state of, New York, against any person accused of an offense committed within that state; or committed on board of any vessel being under the exclusive jurisdiction of that state, as aforesaid; or committed against the regulations made or to be made by that state, in relation to the fisheries mentioned in the fifth article; and, also, civil process issued under the authority of the state of New York, against any person domiciled in that state, or against property taken out of that state, to evade the laws thereof, may be served upon any of the said waters within the exclusive jurisdiction of the state of New Jersey, unless such person and property shall be on board a vessel aground upon and fastened to the shore of the state of New Jersey, or fastened to a wharf adjoining thereto; or unless such person shall be under arrest, or such property shall be under seizure, by virtue of process or authority of the state of New Jersey.
Article VIII. This agreement shall become binding on the two states when confirmed by the legislatures thereof respectively; and when approved by the congress of the United States.”
The above agreement or treaty was ratified and confirmed by the legislature of New York, by an act passed February 5, 1834; (Laws of New York, 1834, eh. 8; 1 Stat. at Large, 1;) by the legislature of New Jersey, by an act passed February 26, 1834; and by an act of congress passed June 28,1834.