Stevens v. Paterson & Newark Railroad

34 N.J.L. 532

Opinions

The following opinion was delivered:

Beasley, Chief Justice.

The principal question which has been argued in this case is that respecting the interest of the state in the lands lying between high and low water marks in tidal rivers. In some of its aspects this subject is a familiar one to our courts; but, on this occasion, the point is, for the first time, distinctly presented, whether it is competent for the legislature to grant the soil under the water, so as to cut off the riparian owner from the benefits incident to his property from its contiguity to the water.

Notwithstanding the apparent skepticism of counsel upon the subject, I am constrained to think that some of the matters which were handled in the discussion before the court are to be considered as at rest. In my opinion, it is entirely indisputable that the proprietors of New Jersey did uot,. under the grant from the Duke of York, take any property in the soil of navigable rivers within the ebb and flow of the tides. This was the very point of decision in Arnold v. Mundy, 1 Halst. 1; Martin v. Waddell, 16 Pet. 367; and Den, ex dem. of Russel, v. The Associates of Jersey Co., 15 How. 426.

Second, that this title to the soil under navigable water, which the common law of England placed in the king, \va¡s transferred by the revolution to the people of this state. The cases above cited completely establish this proposition.

And, lastly, in tito case of Gough v. Bell, 2 Zab. 411, it was declared that the owner of lands along the shore of tide waters could extend his improvements by wharves and filling up over the shore in front of his lands to low water mark, unless prevented by the state, provided he did it so as not to interfere injuriously with navigation.

Thus far I regard the law in this state as founded in adjudications which ought not to be questioned, and which cannot be disturbed. Assuming, then, as I do, the foregoing propositions as data in the discussion now before the court, the point of inquiry is narrowed to the single question which was regarded as left open in the case last cited, viz., whether the owner of lands on tide water has such a right to the use of the water that the state cannot authorize any improvements in front of his lands which will destroy or abridge that right without compensation.

In the discussion of this topic, I will consider briefly, first, the right, so-called, of the riparian proprietor; and, in the second place, the rights of the state over the sea shore.

First, then, with regard to the rights of the owner of the upland. In the case of Gough v. Bell, in this court, I observe that Mr. Justice Nevius and Mr. Justice Potts put their opinion on the ground that the riparian owner, at common law, was invested with certain rights in the water as appurtenant to his estate. And in the case of Gould v. The Hudson River Railroad Company, 2 Seld. 544, Mr. Justice Edmonds in a dissenting opinion, expresses a similar view.

I have not found that any other judge has ever based a decision on such a ground. The theory on which those opinions are founded seems to me the result of misconception. “ The riparian proprietor has a right,” says Mr. Justice Potts, “ though his strict legal title is bounded by the high water line, to the water as appurtenant to the upland; a right of towing on the banks, of landing, lading, and unlading ; a right of way to the shore; a right to draw seines upon the upland, and of erecting fishing huts. He has the right of fishery, of ferry, and every other which is properly appendant to the owner of the soil; and he holds every one of these by as sacred a tenure as he holds the land from which they emanate.” The error in this statement arises from overlooking the fact that some of the rights enumerated belong to the riparian proprietor as a member of the community, and that others of them belong to him in his character of owner of the soil. Not one of the privileges in the water which are ascribed to him emanate from his ownership of the land. In common with every other citizen, he can fish in the water, and pass and repass to and from the water along the shore. But he has not these rights by virtue of his property; they attach to him as an individual, and he holds them in common with other citizens. They are part rerum eommunium. Then, again, it is true, it is lawful for him to land on the hank, and to dry his nets and to build fishing huts there. But the right to do these things, and which are not privileges in the water, appertain to him in the ordinary way, as the owner of the land. The case is merely this: the man who owns the land next to navigable water is more conveniently situated for the enjoyment of the public easement than the rest of the community. But a mere enumeration of the advantages of that position falls far short of showing that such proprietor has, in the jus publieum by the common law, more or higher rights Ilian others. It will be observed that in the sentences above quoted, it is averred that the rights referred to emanate from the ownership of the soil j this is certainly true as to certain of them, such as the right to erect fishing huts, &c., but with respect to the usufruct of the water being append-ant to the land, in any legal sense whatever, that is the point to be proved, and it is simply assumed. The question is one of mere tradition, precedent, and ancient authority. When and by whom was it ever claimed, from the clays of Braeton to the present time, that the ownership of the upland drew to it any rights in the sea shore, or peculiar uses of the water? In the opinion commented on, no common law authority is cited, and the few American cases referred to are so manifestly misapplied that it is not necessary to subject them to criticism. My examination has been so thorough that I feel confidence in saying that none of the ancient authorities can be found — and they, of necessity, must be our guides in this inquiry — -which give countenance to the notion that any such privileges as those claimed are appurtenant to the bank or ripa of navigable water. Indeed, so far has the bank owner been from making claim to any peculiar privileges of this kind, that the reverse has occurred, and the contested question has been, whether his land, for the convenience of the public, was not subject to certain servitudes; whether such land might not be crossed in going to and returning from the water ; whether the right to tow boats along the bank or to land, or to dry nets upon it, was not a public right incident to the use of the water. These and similar questions have been mooted in the courts, some of which remain unsolved to the present day, while others have been decided, though not without hesitation and difficulty, in favor of the riparian proprietor. In-all these controversies, extending from ancient through modern times, I do not find that it was ever even suggested that, as an incident to his estate, the owner of the terra firma along the line of tide water was possessed of any peculiar privileges, with the exception of those of alluvion and dereliction — privileges which are, perhaps, countervailed by the loss to which he is subject from the washing away of his land. That this is the true position of the land-owner at the common law, will, I think, more clearly appear when I come to set forth the rights of the king in the sea shore, to which subject I now proceed.

The language of the old books is, “that the sea is the king’s proper inheritance,” and he is styled “ the lord of the great waste,” “ tarn aquae quam soli.” Co. Litt. 107, 260 b ; Colles 17 ; 3 Leo. 75 ; 2 Molloy 375.

And this was property susceptible of transference. There are some antique instances of grants by the kings of England of certain portions of land under the sea. Lord Hale recites several transfers of this description. Hale, de jure mavis, 14-28. It is true that such conveyances, at least in modern times, did not pass the property disencumbered of the public right of navigation and fishing; but still it is clear that the tenure of the soil carried with it certain valuable rights. In fact it appears to have been possessed of the ordinary incidents of property on terra firma. It could be put to any use not inconsistent with the public easements with which it was burthened. If it was unlawfully appropriated or interfered with, the law afforded it protection. There are cases, both ancient and modern, showing that this distrietus marts — -this land covered with water — was a property susceptible of valuable uses. Thus, in the celebrated case of the Royal Fishery in the Banne, Davies’ Rep. 149, it is said: “ The city of London, by a charier from the king, hath the river Thames granted to them, but because it was conceived that the soil and ground of the river did not pass by that grant, they purchased another charter, by which the king granted to them solum et fimdum of the said river; by force of which grant the city to this day receives rents of those who fix posts, or make wharves or other edifices on the soil of said river.” It cannot fail to be observed how entirely this case explodes the assumption that the riparian proprietor lias any common law right to extend his front, either by filling in or by the erection of a wharf. Such acts would have been trespasses on the private property of the sovereign.

The modern case illustrative of the same subject, to which I will particularly refer, is that of the Attorney-General v. Chambers, 11 De Gex, M. & G. Rep. 206. This was an information against certain owners and lessees of a district, abutting on the sea shore. The information alleged that by the royal prerogative, the sea shore and the soil, and all mines and minerals lying under the sea, and all profits arising uhereírom, Wiorg to Wr majesty, &o.; \W. there Were Veify valuable veins or strata of coal lying under that part of said district which was contiguous to the sea shore; that the sea shore vested in her majesty extended landwards as far as high water mark in ordinary spring tides, or, at all events, far beyond high water mark at neap tides; and that the defendants had encroached upon and worked valuable mines under the shore. The general right of the queen as stated was admitted, the only question which was put in controversy being as to the extent of such right. A verdict was taken, by consent, for the crown, and the court decided that the right of her majesty to the sea shore landwards is, prima fade, limited by the line of the medium high tide between the spring and neap tides. This decision was made in the year 1854.

From these two cases it seems to me most conspicuous that the ownership of the shore under the sea drew to it all the usual rights of property. It could be leased out for wharves or worked as a coal mine. We are also to bear in mind that the sea shore could. be granted in gross — that is, without being parcel of the upland. Hall on the Rights of the Crown, &c.,p. 19. I also refer, for a number of examples in which claims of the crown similar to the foregoing have been successfully enforced, to an article in vol. vi., p. 99, of the Lato Magazine and Law Review. From this essay it appears that “ the advisers of the crown, for the last quarter of a century, have exercised unusual vigilance respecting, and been most active in realizing the royal claim to the fore shores.”

Among other notable instances the following one is thus described: “ An earlier case was one of an information for intrusion, filed in 1833, by Sir William Hone, when attorney-general, in the Court of Exchequer, to establish the right of the crown to a tract of land containing about two hundred and seventy acres, formerly overflowed by the tide, situate'near the city of Chester, on the,south bank of the Dee, á tidal navigable river. The suit terminated in favor of the crown, and the land was subsequently sold by the crown.” Nor do I find the royal right anywhere, in the long line of adjudications upon the subject, called in question with respect to its general features. It is admitted, in the fullest extent, in the conspicuous modern cases. Lord Advocate v. Sinclair of Foss, L. R., 1 Scotch Appeals 174 ; and Gann v. The Free Fisheries of Whitstable, 11 House of Lords Cases 192.

Indeed, I think it is safe to say that no English lawyer, speaking either from the bench or bar, has ever asserted that the owner of the land along the shore of navigable water has any peculiar right, by reason of such property, to the use of the water or of the shore. And it seems entirely incredible to suppose that such a right as this could have existed, and that no allusion should have ever been made to it. It is obvious that many of the controversies which have been before the courts would have been largely affected by the existence of such a right. Such would have been the effect in the case of the Duke of Buccleuch v. The Metropolitan Board of Works, the report of which has come to hand since the argument on the present occasion. D. R., 5 Exchequer 221. The facts of the case are thus stated: “ The Duke of Buccleuch, the plaintiff, had a certain interest under a lease and two agreements from the crown in a mansion in Parliament street, the back of which was' parallel to and bounded by the river Thames; and th.e Metropolitan Board of Works, the defendants, had constructed, by force of an act of parliament, an embankment between the back of the plaintiff’s premises and the river. Eor the purpose of this construction the board of works had found it necessary to remove the area or mass of water which formerly used to run at the back of the premises between high and low water mark, and also to take away a causeway or jetty running from the foot of some stairs on the plaintiff’s land across the shore tp low water mark. It will he observed that the facts of this case were, in all essential particulars, the same as those embraced in the one now before this court, with the exception that in the reported case the plaintiff had a jetty in controversy extending from his land to low water mark. The act under which, the defendants had erected their embankment required, where land was taken, compensation to be made, and directed that in estimating 'the purchase money or compensation to be paid by the promoters/ regard should be had ' not only to the value of the land to be purchased, but also to the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers,’ ” &c. The plaintiff’s claim for compensation was two fold: first, for the destruction of the jetty or landing place; and, second, for the taking away of' the water which used to flow along the river side of the premises. The court held that the only damages the plaintiff was entitled to were those .resulting from the destruction of the jetty or landing place; but that the general damage occasioned by the interposition of the embankment of the defendants along the water front of the premises were damna absque injuria. This was regarded as a case of great importance, and was fully argued and considered, and yet it was not intimated, either by counsel or any of the judges, that the plaintiff, as riparian proprietor, had any right, the deprivation of which was a legal injury or afforded even any just ground for complaint. In the ‘whole case there is not'a hint of the supposed existence of such a right.

From these authorities and many others which might be cited, it appears to me to be plain, that by the rules of the ancient law,'the owner of land along the shore was entitled to no right as an incident of such township, except the contingent ones before referred to of alluvion and dereliction ; and that, on the other hand, the title to the soil under tide water was in the sovereign; and that such title was attended with the usual concomitants of the ownership of realty. And it consequently followed from this result, that in order to enable the owner of the upland to fill in or wharf out below the line of high water, it was absolutely necessary to adopt some principle different from those of the common law. And this, as I understand, was the foundation on which the majority in this court placed themselves in the decision of the case of Gough v. Bell. That final decision was a concurrence in the view expressed by Chief Justice Green, in his opinion delivered in the Supreme Court; and, that view was, as I apprehend, the only one which could invest the claim of the land-owner to extend his lands by artificial means below the line of high* water with the faintest semblance of legality. As such claim could not rest on the common law, it was indispensable to invoke and sanction a custom or local usage variant from the common law. How far such a custom, as a mode of acquiring a title to real estate, can be made to harmonize with legal principles, it is not necessaiy to inquire, for as before remarked, I consider the existence and legality of such a usage to be res adjudieata in this state. Admitting its legal existence, then, the inquiry presses as 1o its effect in law. It confers a right by the legal exercise of which, the bank-owner may encroach on the public property between high and low water marks. If such a right existed by force of the common law, as an incident of property, it is obvious it could not be destroyed or substantially impaired by the legislative power, without compensation. The question is, whether this customary right has the same quality and efficiency as though it appertained to the land by force of the common law.

My consideration of this branch of the subject has led to the conviction that such privilege has not the effect suggested in the above inquiry. The local custom in question was nothing more than a license on the part of the public to the land-owner, enabling the latter to fill in or wharf out along the fore shore between high and low water marks, and which license, when executed, became irrevocable. The shore-owner acquired his indefeasible right by the acquiescence of the public in the performance of the act. That this was the view of the judges whose opinions prevailed in the decision of Gough v. Bell is, I think, clearly manifest. I have above observed that the true doctrine with respect to this local custom is embodied in the opinion read in the Supreme Court by Chief Justice Green. In that opinion, this clear statement with respect to the necessity of the execution of the license, as a pre-requisite to the acquisition of a legal right on the part of the land-owner, is to be found, viz., “In New Jersey, as we have seen, the title of the state extends, as at common law, to high water mark as it actually exists. Where the waters have receded by alluvion or by the labor of the adjoining proprietor, the title of the state does not extend beyond the actual high water line. That every encroachment upon the shore or other part of the public domain may, at all times, be restricted or controlled by the legislature, is admitted. That any erection prejudicial to the common rights of navigation or fishery may be abated, is not denied. But 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.” This language is too clear and explicit to need explanatory comment. That the local custom of the state which was recognized and enforced by the court, operated 'as a simple license to the riparian owner to enlarge his possessions at the expense of the public domain, and which license was revocable at any time before execution-, is the clear doctrine of the adjudication in question. It has no reaph beyond this. And from that time to the present, I do not perceive that the judiciary of this state have been-in any doubt upon this subject. Whenever the doctrine has been referred to, the question has been treated as being entirely at rest. In the year 1856, in the case of The State v. The Mayor and Common Council of Jersey City, 1 Dutcher 525, certain lands lying under the flow of the tide were thrown out of a tax assessment for the reason that the title to such lands was in the state, and Mr. Justice Elmer, with characteristic directness of expression, defines the public title thus: “It must now be accepted as the established law in New Jersey, that the right of the owner of lands bounding on a navigable river extends only to the actual high water mark, and that all below that mark belongs to the state. The inchoate right,, if such it may be called, which the proprietor of the upland has, either with or without a license, to acquire an exclusive right to the property, by wharfing out or otherwise improving the same, gives him no property in the land while it remains under the water. It may be granted by the state to a stranger at any time before it is actually reclaimed and annexed to the upland. Such is unquestionably the common law, and I am aware of no alteration of it in this respect in New Jersey.” In this opinion, Chief Justice Green and Justices Ogden and Haines concurred. Again, after an interval of several years, the rule was treated by the same court as established. 1 refer to the case of Stewart v. Fiteh and Boynton, 2 Vroom 18. This was a suit by a riparian owner for the use of certain flats by the rafts and lumber of the defendants, and among other reasons given for dissent to the legality of the plaintiff’s claim, the court said: “ But it also appears that the flats on which the rafts were anchored were all below high water mark, and, at high tide, covered to the depth of two feet, and that no part had been in any wise improved or reclaimed, and that, consequently, the title to them was not in the plaintiffj but in the state of New Jersey.” From these cases, I think it is evident that from the date of the decision of Gough v. Bell up to the time of the present controversy, the question now under consideration has not been considered an open one by the courts of this state. And such, too, appears to have been the legislative and public understanding of the effect of this leading decision just mentioned, at the time that it was rendered. This, I think, is manifest from the provisions of the act of 1851, entitled “An act to authorize the owner of lands upon tide waters to build wharves in front of the same.” Nix. Dig. 1025.* By the first section of this act it is declared “ that it shall be lawful for the owner of lands situate along or upon tide waters to build docks or wharves upon the shore in front of his lands, and in any other way to improve the same, and when so built upon or improved, to appropriate the same to his own exclusive use.” Thus we find in this provision, and in similar provisions in many other laws, the local custom sanctioned in the case of Gough v. Bell assuming a statutory form and subject to certain general regulations. The right of the bank-owner was dealt with by the legislature not as an incident of property already vested, but as a privilege which required the element of public acquiescence, and the performance of a pre-requisite on the side of the proprietor, to be converted into a legal right. Nor should it fail to be observed that even if we were to admit the indefeasibility of this customary right of the shore-owner, such concession could not have much effect in securing him against the exercise of legislative power. By force of such a doctrine, the land lying between the high and low water lines could not be taken from him without compensation; but below the low water line, the public right and control would be still absolute. But I have said such concession cannot be made. The bank-owner has, by the local custom of the state, but an inchoate right before the reclamation of the land below the water; nor does he gain anything in this respect by the statute just referred to. That act did not add anything to the efficiency of the local custom as a mode of acquiring title. It left that right as it found it — a pure license, revocable .before execution.. Such acts, bearing the form of legislative licenses, are not uncommon, and their effect has been clearly defined. It has never been thought that the privileges conferred by them were vested rights in the sense of debarring the public from revoking them at pleasure. Two cases in point, which have arisen in Pennsylvania, I will refer to as illustrative of the principle. .By a statute of that state, all persons owning lands adjoining navigable streams were authorized to erect dams in such streams, and appropriate the water to the uses of their mills. In the cases of The Susquehanna Canal Co. v. Wright, 9 Watts & Serg. 9; and The New York and Erie Railway v. Young, 33 Penn. 175, it was declared that the rights acquired under this act were not indefeasible, but were subordinate to the rights of the commonwealth. This result was justified by the theory that such licensees took their privileges under the implied condition that they should be held in subordination- to the requirements of the public. These decisions go to the point that a legislative permission to appropriate to individual use a part of the jus publicum, does not, per se, deprive the public of a right to resume the privilege granted, unless it appears that it was the intention to vest such privilege irrevocably in the licensee. The wharf act of this state clearly leaves, in this respect, nothing íd doubt;, for it expressly announces that; after the riparian proprietor has, in point of fact, erected his wharf or made any other improvement below the high water line, then, and not till then, the land so appropriated shall become his own. Prior to this event, he has no rights in the water or the land under'it, either by the statute or by the local custom, which are not subservient to the legislative will.

The steps which I have thus far taken have led me to this position: that all navigable waters within the territorial limits of the state, and the soil under such waters, belong in actual propriety to the public; that the riparian owner, by the common law, has no peculiar righfs in this public domain as incidents of his estate, and that the privileges he possesses by the local custom or by force of the wharf act, to acquire such rights, can, before possession has been taken, be regulated or revoked at tlie will of the legislature. The result is, that there is no legal obstacle to a grant by the legislature to the defendants, of that part of the property of the public which lies in front of the lands of the plaintiff, and which is below high water mark. It may be true that by snch an appropriation, the plaintiff will sustain a greater inconvenience than will other citizens whose laud does not run along this river. But the injury to all is in its essence and character the same, the difference being only in degree. All persons who have occasion to approach this river over that part of the bank occupied by the railroad of the defendants, 1 l « _ _ ' ’ may, perhaps, experience some inconvenience from the interposition of such works: the railroad, therefore, is somewhat of an impediment to the public rights of fishery and navigation. But no one, it is presumed, will pretend that such impediment is, on that account, illegal, if authorized by the legislative .authority. Nor can' the plaintiff complain because a difficult access to the water is a greater hardship to him, owing to the easy use of the water, in connection with his property in its natural condition, than it is to those who live at a distance from it. If it were true that no public improvement can be made which, in its execution, will affect the property of one citizen more injuriously than it will that of another, many of the greatest works of the times would become impossible. No railroad or canal can be constructed which will not greatly benefit the lands of some persons, and injure almost as greatly those of others. Every citizen is required, at times, to contribute something, by way of sacrifice, to the public good. Such partial evils are the price which is paid for the advantages incident to the social state. It is not' necessary to refer extensively to authorities in confirmation of the doctrine that, as a general rule, the public domain is subject altogether to the control of the legislature, and that incidental damage resulting to individuals from the exercise of such control, gives no legal claim to compensation. The principle seems universally conceded that, unless in certain particulars protected by the Federal constitution, the public rights in navigable rivers can,- to any extent, be modified or absolutely destroyed by statute. By force of the constitution of this state, private property cannot be taken, even for public use, without just compensation. But the dominion of the legislature over the jura publica appears to be unlimited. By this power they can be regulated, abridged, or vacated. We have seen that, by the common law, the king was the proprietor of the soil under the navigable water, and this being regarded as a private emolument of the crown, was susceptible of a transfer to a subject. But such transfer did not divest or diminish, at least after Magna Oharta, the public rights in the water, and consequently the grantee of the crown held the property in subjection to the common privilege of fishery and navigation. The consequence was, that the king could not deprive the subjects of the realm of these general rights. This was a power that resided in parliament,,and not in the monarch. But that such a parliamentary power existed, appears never to have been questioned by any English authority, nor do I perceive that its exercise was ever regarded as a legal wrong, or even as an unusual hardship to the owner of the land along the shore. In the year 1780, this authority of parliament to put to use the land under tide water, thus intercepting the land-owner, was fully recognized by Lord Mansfield. The case referred to is that of The King v. Smith, Douglass 441. The city of London, under an act in the time of George III., had erected piles on the bed of the Thames, near Richmond, within high water mark, about the distance of twenty-nine feet from the shore, for the purpose of making a towing-path for horses, adjoining and contiguous to a wharf in the possession and the property of the defendants, or of those under whom they claimed. The defendants cut down one of these piles, which was proved to have been erected between the high and low water marks, opposite to the said wharf. For this act an indictment was found, and the defendants were convicted. The case came before the court on a motion to arrest judgment. In the argument of this case none of the distinguished counsel employed for the defence questioned the right of parliament to appropriate the land in question in the manner specified, if the Thames, at the point in question, was within the reach of the tide, the entire predication being that such was not the fact. The conviction was sustained. I think the power of parliament, in affairs of this character, is not to be denied. Nor was this one of those severe prerogatives which existed only in consequence of the theoretic omnipotence of the legislative branch of the British government. Whatever the theory, we know what the practice has been, and it is scarcely too much to say that, since the days of the revolution, no instance can be found of any Englishman being deprived of any right of property by act of parliament. A statute putting to use the land under tide water was regarded as legitimate — not because the power of parliament was unlimited, but because the control over the public domain was unlimited. And, in fact, the absence of a power to control and put to use the public interests in the navigable waters would be an imperfection in the civil polity of any people. I do not find that it has ever been supposed that such a power did not exist in any of the American states. By a statute of the state of Delaware, a citizen was authorized, for the purpose of improving his lands, to close the mouth of a navigable creek, and such statute was pronounced to be constitutional, and the act done under it legal, by the Supreme Court of the United States. Wilson v. Blackbird, Greek, 2 Peters 245. In Glover v. Powell, 2 Stockt. 211, a similar law was enforced, and in' the case of The Mayor of Georgetown v. The Alexandria Canal Company, 12 Peters 91, it was held competent for congress, acting as the local legislature, to authorize the erection of the canal in question, although the same was admittedly injurious to the interests of the riparian owners. This same doctrine was enforced in the case of Gould v. Hudson R. R. Co., 12 Barbour 616; 2 Selden 522, on a scale of the greatest magnitude, the road of the defendants being located along the Hudson, and intervening for many miles between the water and the land of the bank-owners. See a collection of cases to the same effect, in Angell on Tide Waters 92-108. It is upon this principle that water, in large quantities, is taken from our rivers to feed our canals, and that dams are placed, to the destruction of navigation, in our rivers for the use of manufactories. Our state affords many instances of a display of this power in this form.

With regard to the hardships oftentimes incident to the exercise of such a power, the courts can have no concern. Such considerations address themselves exclusively to the law-makers. It is the office of the court to declare, if the law leads to such results^ that the legislature has the authority to regulate or destroy at its pleasure, and for the common welfare, the public rights in navigable rivers, and that if individuals -are,, in consequence thereof, incidentally injured, such loss is damnum absque injuria. If compensation be made for such damage, it is on the part of the state a mere gratuity, for neither the riparian proprietor no any other citizen whose property has been impaired can claim such redress as a matter of legal right. In all such cases the appeal must be to the sense of justice of the legislature.

The result being that the legislature, can authorize the laying of this road in front of the land of the plaintiff without compensation, the next question is, has such a privilege been conferred on the defendants?

The claim is, that the legislature has granted to these defendants the use of a part of the public domain. The state is never presumed to have parted with any part of its property, in the absence of conclusive proof of an intention to do so. Such proof must exist, either in express terms or in necessary implications. I shall not cite authorities to sustain so familiar a proposition. With respect to this statute now drawn in question, and by the supposed force of which the defendants have erected their works, I fully concur in the view expressed by Mr. Justice Depue, in the opinion read by liim in the Circuit Court. I think there are no terms used in this statute which, fairly interpreted, imply an intention to confer on the defendants the privilege asserted, nor does such privilege necessarily result from the general powers conferred. This plea, therefore, presents no bar to the action of the plaintiff.

With respect to the question raised in the argument, touching the sufficiency of the facts stated in the plaintiff’s declaration to sustain his suit, I will merely say that it seems to me that a legal cause of action is shown.

The substantial allegation is, that in consequence of the works of the defendants, he is prevented from passing from his land to the river Passaic, which at present is a public highway.

Now it is true that, as the defendants have put these obstructions in this river without authority of law, such obstructions are a public nuisance. But I think it is a nuisance which, according to the allegations on the record, inflicts a peculiar damage on the plaintiff, and if that be so, it is admitted this action is well brought. The plaintiff!, until the state interferes and deprives him of the privilege, has the right to pass directly from his property on to the shore of this navigable river. He has been deprived of the right by the tort of the defendants, and this is a damage which, apparently, is individual and peculiar to himself. If a ditch should be dug in a public highway, in front of the door of a dwelling-house, so as to cut off access to and from' such house, no one would doubt that the occupier of such house sustained a greater inconvenience from the public nuisance than the body of the community. The character of the present tort, as it respects the plaintiff, is precisely of this nature. I think the fa.cts stated support the action.

The judgment in the Circuit Court should be affirmed.

Footnotes

*

Rev., p. 1240.