The Chief Justice.
The board of chosen freeholders of the county of Hudson granted to Albert N. Brown a license to build a dock, wharf, or pier, in front of a traet [16]*16of land claimed by said Brown, to extend into New York bay, from high water mark to a point two hundred feet beyond ordinary low water mark. The object of this certiorari is to test the validity of the license so granted. The proceedings were instituted, and the license granted, under the provisions of the act entitled “ An act to authorize the owners of lands upon tidewaters to build wharves in front of the same.” Nix. Dig. 871.
By the second section of the act, it is enacted that it shall be lawful for the owners of lands, situate along or upon tide .waters, to build docks, wharves, and piers in ■ front of their lands beyond the limits of ordinary low .water, in such manner as not, to hinder, interefere with, or ■ impair the public right of navigation, upon license obtained for that purpose, as. hereinafter provided. The third and fourth sections of the act prescribe the mode of proceeding to obtain the license. The fifth section provides for the recording of the license, and enacts that, when so recorded ■ and delivered, it shall authorize and empower the applicant to erect the dock, wharf, or pier at any time within five years from the date thereof; and the said dock, wharf, or pier, or so much thereof as shall be executed within said five years, shall be vested in said shore-owner, in the same manner, for the same estate, and with the. same limitations over, in remainder or otherwise, as the lands along said tide waters in front of which the same were made may be; and such .license shall not be assignable, except with and as appurtenant to said lands, and shall pass .by sale of said lands, as appurtenant thereto.
The only question presented for the consideration of the ■ court is,; whether Albert N.-Brown, to whom the license is granted,as a'shore-owner, and, as such, authorized to receive the license under the provisions of the act.
The legislature have left no room for doubt as to the precise meaning .of the terms employed in the act. By the eleventh section, it is declared that the term shore, in the act, shall be epnstrupd to mean the land between the [17]*17limits of ordinary high and low water; the term shore line, to mean the edge of the water at ordinary high water ; and the term shore-owner, to mean the owner of the lands above and adjoining the shore line. The owner of lands, therefore, to whom alone such license can be granted, must be the owner of lands above and adjoining the edge of the water at ordinary high water. Is Albert JST. Brown such owner ? Is that fact proved ?
In support of his claim, he exhibits a deed from Jacob M. Merseles and wife to himself, bearing date on the first of August, 1854, for a tract of twenty-nine acres and eighty-two rods, more or less, bounding on the waters of New York bay. The boundaries of the tract are in part described as running “ to the waters of New York bay ; thence along the New York bay 775 feet, more or less.” The deed excepts out of the tract, as described, “ certain lands mentioned and described in a deed, made by Jacob Merseles and Letty, his wile, and Merseles J. Merseles and Susanna, his wife, to the Morris Canal and Banking Company, bearing date on the second of February, 1835. The deed also purports to convey to the grantee, Albert N. Brown, all the right of the grantors to the lands under water, on the southerly side of the said tract and south of the Morris canal, to the middle of New York bay, or as far as the right of the grantors extends. This claim obviously cannot affect the question now uuder consideration.
Whether this deed vests in the grantee the ownership of land upon tide waters, and constitutes him a shore-owner within the contemplation of the act, will depend, it is obvious, entirely upon the description of the laud previously conveyed to the Morris Canal and Banking Company, which is excepted out of the grant. By reference to that deed, it appears that the land granted to the Morris Canal and Banking Company is described as follows, viz., beginning on the line of land of Robert Thompson, where the same is intersected by the route of the [18]*18Morris canal, and running northwardly, as said canal runs, according to the courses and distance marked on the said map, survey, and field-book of said canal, filed in the clerk’s office of the county of Bergen, to land of George "Vreeland, the same being Lot No. 38 on said survey, and is estimated’ to contain two acres and thirty-one hundredths of an acre, strict measure; the said lot lies in the vicinity of, and on the margin of New York bay, between lands of Robert Thompson and George Vreeland, as by reference to said map, survey, and field-book will more fully appear. The land thus conveyed to the canal company, and which is excepted out of the grant to Brown, is described as lying in the vicinity of, and on the margin of New York bay, terms clearly importing that it bounded on the bay. It extends across the entire front of Brown’s tract. An inspection of the copies of the map and field-book, exhibited to the court, confirm the general description in the deed to the canal company. The canal is there represented and described as bounding on New York bay throughout nearly its entire course over the land of Merseles.
The case admits that the map will show that the larger portion of the outer or sea wall of the canal is below high water mark. For a small distance, the sea wall is above’ high water mark, and marshy lands intervene between the sea wall of the canal and high wrter mark. By one of the exhibits in the cause, it appears that the canal, as actually located, does not precisely correspond with the description in the field-book on file in the clerk’s office; but there is no evidence that these variations will at all affect the material description in the deed, that the land conveyed was on the margin of New York bay. That such was” the understanding of the parties, and the contemporaneous construction given to this deed, is manifest from the description of the tract now owned by Brown, contained in the deed- to his grantor. This deed bears date on the twenty-first of June, 1838, within three years after [19]*19the deed to the canal company, and describes the tract as adjoining the Morris canal on the east, as starting at a stake and running thence a northerly course along the canal, and after running the several boundary lines of the tract, thence to the said canal, the place of starting. This description makes the canal, not the New York bay, the eastern boundary of the farm. It includes no land east of the canal, and corresponds with the description in the deed to the canal company, that the land thereby conveyed was on the margin of the bay. In the absence of all conflicting testimony, the documentary evidence establishes the fact that the land conveyed to the canal company was upon the bay, and adjoined the shore line; that the canal, as located and constructed for nearly the whole distance across Brown’s farm, is upon that line; that the sea wall of the canal now is, and always since its construction has been, washed by ordinary high tide, and that, consequently, the land conveyed to and owned by the canal company lies between the shore line and the lands of Brown; that Brown’s deed carried him not to the bay shore, but to the canal, leaving the width of the canal, with its banks, between him and the shore line. It is not incumbent on the plaintiff in certiorari to show negatively that Brown is not the shore-owner.
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The Chief Justice.
The board of chosen freeholders of the county of Hudson granted to Albert N. Brown a license to build a dock, wharf, or pier, in front of a traet [16]*16of land claimed by said Brown, to extend into New York bay, from high water mark to a point two hundred feet beyond ordinary low water mark. The object of this certiorari is to test the validity of the license so granted. The proceedings were instituted, and the license granted, under the provisions of the act entitled “ An act to authorize the owners of lands upon tidewaters to build wharves in front of the same.” Nix. Dig. 871.
By the second section of the act, it is enacted that it shall be lawful for the owners of lands, situate along or upon tide .waters, to build docks, wharves, and piers in ■ front of their lands beyond the limits of ordinary low .water, in such manner as not, to hinder, interefere with, or ■ impair the public right of navigation, upon license obtained for that purpose, as. hereinafter provided. The third and fourth sections of the act prescribe the mode of proceeding to obtain the license. The fifth section provides for the recording of the license, and enacts that, when so recorded ■ and delivered, it shall authorize and empower the applicant to erect the dock, wharf, or pier at any time within five years from the date thereof; and the said dock, wharf, or pier, or so much thereof as shall be executed within said five years, shall be vested in said shore-owner, in the same manner, for the same estate, and with the. same limitations over, in remainder or otherwise, as the lands along said tide waters in front of which the same were made may be; and such .license shall not be assignable, except with and as appurtenant to said lands, and shall pass .by sale of said lands, as appurtenant thereto.
The only question presented for the consideration of the ■ court is,; whether Albert N.-Brown, to whom the license is granted,as a'shore-owner, and, as such, authorized to receive the license under the provisions of the act.
The legislature have left no room for doubt as to the precise meaning .of the terms employed in the act. By the eleventh section, it is declared that the term shore, in the act, shall be epnstrupd to mean the land between the [17]*17limits of ordinary high and low water; the term shore line, to mean the edge of the water at ordinary high water ; and the term shore-owner, to mean the owner of the lands above and adjoining the shore line. The owner of lands, therefore, to whom alone such license can be granted, must be the owner of lands above and adjoining the edge of the water at ordinary high water. Is Albert JST. Brown such owner ? Is that fact proved ?
In support of his claim, he exhibits a deed from Jacob M. Merseles and wife to himself, bearing date on the first of August, 1854, for a tract of twenty-nine acres and eighty-two rods, more or less, bounding on the waters of New York bay. The boundaries of the tract are in part described as running “ to the waters of New York bay ; thence along the New York bay 775 feet, more or less.” The deed excepts out of the tract, as described, “ certain lands mentioned and described in a deed, made by Jacob Merseles and Letty, his wile, and Merseles J. Merseles and Susanna, his wife, to the Morris Canal and Banking Company, bearing date on the second of February, 1835. The deed also purports to convey to the grantee, Albert N. Brown, all the right of the grantors to the lands under water, on the southerly side of the said tract and south of the Morris canal, to the middle of New York bay, or as far as the right of the grantors extends. This claim obviously cannot affect the question now uuder consideration.
Whether this deed vests in the grantee the ownership of land upon tide waters, and constitutes him a shore-owner within the contemplation of the act, will depend, it is obvious, entirely upon the description of the laud previously conveyed to the Morris Canal and Banking Company, which is excepted out of the grant. By reference to that deed, it appears that the land granted to the Morris Canal and Banking Company is described as follows, viz., beginning on the line of land of Robert Thompson, where the same is intersected by the route of the [18]*18Morris canal, and running northwardly, as said canal runs, according to the courses and distance marked on the said map, survey, and field-book of said canal, filed in the clerk’s office of the county of Bergen, to land of George "Vreeland, the same being Lot No. 38 on said survey, and is estimated’ to contain two acres and thirty-one hundredths of an acre, strict measure; the said lot lies in the vicinity of, and on the margin of New York bay, between lands of Robert Thompson and George Vreeland, as by reference to said map, survey, and field-book will more fully appear. The land thus conveyed to the canal company, and which is excepted out of the grant to Brown, is described as lying in the vicinity of, and on the margin of New York bay, terms clearly importing that it bounded on the bay. It extends across the entire front of Brown’s tract. An inspection of the copies of the map and field-book, exhibited to the court, confirm the general description in the deed to the canal company. The canal is there represented and described as bounding on New York bay throughout nearly its entire course over the land of Merseles.
The case admits that the map will show that the larger portion of the outer or sea wall of the canal is below high water mark. For a small distance, the sea wall is above’ high water mark, and marshy lands intervene between the sea wall of the canal and high wrter mark. By one of the exhibits in the cause, it appears that the canal, as actually located, does not precisely correspond with the description in the field-book on file in the clerk’s office; but there is no evidence that these variations will at all affect the material description in the deed, that the land conveyed was on the margin of New York bay. That such was” the understanding of the parties, and the contemporaneous construction given to this deed, is manifest from the description of the tract now owned by Brown, contained in the deed- to his grantor. This deed bears date on the twenty-first of June, 1838, within three years after [19]*19the deed to the canal company, and describes the tract as adjoining the Morris canal on the east, as starting at a stake and running thence a northerly course along the canal, and after running the several boundary lines of the tract, thence to the said canal, the place of starting. This description makes the canal, not the New York bay, the eastern boundary of the farm. It includes no land east of the canal, and corresponds with the description in the deed to the canal company, that the land thereby conveyed was on the margin of the bay. In the absence of all conflicting testimony, the documentary evidence establishes the fact that the land conveyed to the canal company was upon the bay, and adjoined the shore line; that the canal, as located and constructed for nearly the whole distance across Brown’s farm, is upon that line; that the sea wall of the canal now is, and always since its construction has been, washed by ordinary high tide, and that, consequently, the land conveyed to and owned by the canal company lies between the shore line and the lands of Brown; that Brown’s deed carried him not to the bay shore, but to the canal, leaving the width of the canal, with its banks, between him and the shore line. It is not incumbent on the plaintiff in certiorari to show negatively that Brown is not the shore-owner. The fact of his ownership is to be shown affirmatively. It is the ground upon which, alone, the license, and the right to grant the license, rests; and if his right of property in the shore bo not proved to exist co-extensive with the extent of the license to erect the wharf, the license is invalid. If this be so, it seems clear tiiat Brown is not a shore-owner within the meauiug of the act, and not entitled to a license.
But the material question before the court, and upon which this controversy mainly depends, is whether, admitting that the canal is between the laud of the plaintiff and the shore line, the canal company have such title in the land as deprives the laud-owner of the right to build a wharf in front on his farm.
[20]*20By the deed to the canal company the land is conveyed to them, their successors and assigns, together with all and singular the waters, profits, privileges, and advantages, with the appurtenances to the same belonging or in any wise appertaining; also, all the estate, rights, title, interest, claim, and demand whatsoever of the party of the first part of, in, and to the same, and to every part and parcel thereof; to have and to hold all and singular the above-described tract or parcel of land and premises, with the appurtenances, unto the said party of the second part, their successors and assigns, to the only proper use, benefit, and behoofof the said party of the second part, their successors and assigns, as long as used for a canal. There is no reservation in the deed. It conveys all the right, title, and interest of the grantors in the land and its appurtenances for the term specified in the grant, to wit, “as long as used for said canal.”
By the terms of the conveyance the grantees take a qualified fee, liable to be .defeated whenever they cease to use the land for the purpose' specified in the grant/ 1 Inst. 1, b. 27 a; 1 Cruise 79, tit. 1, § 82; 2 Bl. Com. 110.
Yet while the estate continues, and until the qualification-upon which it is limited is at an end, the grantee has the same rights and privileges over his estate as if it were a fee simple. Plowden 857; 1 Cruise, 52, tit. 1, § 86.
The corporation, as such, have an undoubted right to take a conveyance in fee. The charter contains no limitation on this point. The sixth section empowers them to acquire land by deed or gift, without limitation in point of estate.' The twenty-sixth section provides for the operations and privileges of the company for one hundred and fifty years, and that then the canal- land its appurtenances shall become the property of the state. However the corporation may be restricted in the use of-their estate, they are nevertheless owners in fee of - the land while their estate continues. At the time of the license granted to Brown, the estate in this land con-[21]*21tinned in the canal company. It was then used for the purposes of a canal, and may continue to bo so used forever. It is not necessary to the enjoyment of the right of the shore-owner to erect a wharf in front of his land that he should be the owner of an unqualified estate in fee; on the contrary, the statute provides that the docks, wharves, or piers erected in pursuance of the act shall be vested in the shore-owner, in the same manner, for the same estate, and with the same limitations over in remainder, or otherwise, as the lands along said tide waters in front of which the' same were made may be. How, then, can the applicant for license bring himself within the provisions of the statute, and claim to be a shore-owner, when in fact the canal company own a strip of laud between him and the shore line? This seems to me decisive against the authority of the freeholders to grant the license to Brown, inasmuch as, by the terms of the statute, their authority is limited to a grant of license to the shore-owner. But it is objected that the company, by their charter, could only acquire the title to land necessary to construct their canal and carry out the purposes of their incorporation, and that they could neither, by purchase nor condemnation, acquire title to the rights of the landholder under water.
The rights of the landholder under water, whatever they may have been, were mere incidents of the ownership of the adjoining shore, held by permission of, and subject to the control of the state. They passed with the grant of the land, as incidents of ownership. The restriction of the power of the company to use their rights, admitting such limitations to exist, is no limitation of the power of the company to take the rights. Nor, because the company cannot use them, does it follow that they exist elsewhere. In Barnet v. Johnson, it was held that there were uses to which the company could not apply lands acquired for the use of their canal. But it was not held that their ownership was limited, or that the adja[22]*22cent owners possessed the rights which the company themselves could not exercise.
It is further objected, that if the company cannot exercise these rights themselves, they have no interest in contesting the claims of another, and cannot be hoard upon the application. If these rights are incidents of the ownership of the shore, if the title to them is in the corporation, they surely have an interest in defending, them. If this company cannot erect dwellings upon their canal, they may exclude others from doing so. If they may not, as a corporation, carry on the business of mining upon the land, they may exclude-others from doing it. They have an interest in protecting all the incidents of their rights of property. They have, moreover, a direct and immediate interest in having free access to the sea, and in excluding all others from obstructing it.
Without intending to intimate the least expression of opinion upon- the question whether the canal company may exercise the right of building wharves in front of this land, I am clearly of opinion that the grant of license for this purpose, by the board of freeholders to another person, was unauthorized by the statute, and must be set aside.
Justices Ogden and Vkedenbdkgh concurred.