The title of the Pennsylvania Railroad Company to its lands in
controversy, derived by grant from the Hoboken Land and Improvement
Company, was confirmed and enlarged by the Act of the Legislature
of New Jersey of March 31, 1869, "to enable the United Companies to
improve lands
Page 124 U. S. 657
under water at Kill von Kull and other places," and the title of
the other defendants to their lands in controversy, also derived by
grant from said Hoboken Company, was enlarged and confirmed by
grants from the state, under the Riparian Act of the legislature of
the same 31st March, and thus all these titles are materially
distinguished from the title of the Hoboken Land and Improvement
Company (derived only through § 4 of its charter), which was the
subject of the decision of the highest court of the New Jersey in
Hoboken Land & Improvement Co. v. Hoboken, 36 N.J.L.
540.
The act of the Legislature of New Jersey of March 31, 1869, "to
enable the United Companies to improve lands under water at Kill
von Kull and other places," embraced but one object, and
sufficiently indicated that object in its title,
viz.,
that it was intended to apply to the lands of the Pennsylvania
Railroad Company in controversy in these actions, and thus it
complied with the requirements of the Constitution of New Jersey
respecting titles to statutes.
By the laws of New Jersey, lands below high water mark on
navigable waters are the absolute property of the state, subject
only to the power conferred upon Congress to regulate foreign
commerce and commerce among the states, and they may be granted by
the state, either to the riparian proprietor or to a stranger, as
the state sees fit.
The grant by the State of New Jersey to the United Companies by
the Act of March 31, 1869, under which the Pennsylvania Railroad
Company claims, and the grants under the general riparian act of
the same date under which the other defendants claim, were intended
to secure and do secure to the respective grantees the whole
beneficial interest in their respective properties, for their
exclusive use for the purposes expressed in the grants.
An estoppel cannot apply in this case to the state or to its
successor in title.
Any easement which the public may have in New Jersey to pass
over lands redeemed by filling in below high water mark in order to
reach navigable waters is subordinate to the right of the state to
grant the lands discharged of the supposed easement.
A riparian proprietor in New Jersey has no power to create an
easement for the public over lands below high water mark, as
against the state and those claiming under it, and if he attempts
to do it, and then conveys to another person all his right to
reclaim the land under water fronting his property, his grantee may
acquire from the state the title to such land, discharged of the
supposed easement.
Thee title of a grantee under the riparian acts of New Jersey
differs in every respect from that of a riparian owner to the
alluvial accretions made by the changes in a shifting stream which
constitutes the boundary of his possessions.
The defendants in error hold the exclusive possession of the
premises in controversy against the adverse claim of the plaintiff
to any easement by virtue of the original dedication of the streets
to high water mark on the Loss map.
Page 124 U. S. 658
The following is the case as stated by the court:
These are six actions of ejectment brought by the Mayor and
Common Council of the City of Hoboken originally in the Supreme
Court of New Jersey, and removed into the circuit court of the
United States for that district by the several defendants on the
ground of citizenship or alienage. In that court, they were tried
as one case, the intervention of a jury having been duly waived in
writing by the parties. Judgment was rendered in them severally for
the defendants, to reverse which these writs of error have been
sued out.
The general nature of the controversy is accurately stated by
Judge Nixon, who tried the causes, in his opinion, as follows, 16
F. 816:
"The claim of the plaintiff is for an easement, and is based
upon the dedication of certain streets, in the year 1804, by Col.
John Stevens, who was then the owner of between 500 and 600 acres
of land on the western shore of the Hudson River, where the City of
Hoboken now stands, and who made 'a plan of the new City of
Hoboken, in the County of Bergen,' and caused the same to be filed
in the clerk's office of said county in the month of April, 1805.
This plan, on the map known as the Loss map, exhibits a number of
streets running north and south, and a still larger number running
east and west, all of the latter except one apparently terminating
on the riverfront at their eastern end, and one of the former
having a like terminus on the south. Since that date, and by
legislative authority, the riverbed below the ancient high water
mark has been filled in for a long distance to the east and south
of the land included in the Loss map, rendering the navigable water
inaccessible from the streets as therein laid out and dedicated.
This controversy has reference to extending one of these streets,
not named on the map but now called River Street, to the south, and
four others, to-wit, Newark Street, designated on the map the
Philadelphia post road, and First, Second and Third Streets, to the
east, until they respectively reach the navigable water of the
river. The city claims the right of extension by virtue and force
of the Stevens dedication.
Page 124 U. S. 659
The defendants resist it, asserting that the title of Col.
Stevens was limited to high water mark of the river in 1804; that
the soil below the high water mark, as it then existed, belonged to
the New Jersey, which not only has never acquiesced in any easement
over the land, but by various enactments has conferred upon the
defendants or their grantors an absolute title inconsistent with
any right of way in the public over the same."
The facts in all the cases are embraced in a series of findings
by the court constituting a single statement, as follows:
"(1) That the tract of land on which the City of Hoboken has
been mainly built was formerly the property of Col. John Stevens,
and contained originally five hundred and sixty-four acres."
"(2) That in the year 1804, Col. Stevens, then being the owner
of said tract, caused to be made 'a plan of the new City of
Hoboken, in the County of Bergen,' known as Loss' map, which was
filed in the clerk's office of the County of Bergen, in April,
1805."
"(3) That the public streets laid out on said map running east
and west extended eastwardly to the high water mark of Hudson River
as it then existed."
"(4) That the only street thereon running north and south which
concerns the present controversy is now called River Street, and
its southerly terminus on the map was at the high water mark of
said river."
"(5) That subsequent to the filing of said map, Col. Stevens
conveyed several lots or parcels of the land shown thereon to
different persons, and describing the lots so conveyed by reference
to the map and the streets delineated thereon, and that other
owners deriving title from or under him have since conveyed lots
within said plan, describing the same by reference to the map and
streets."
"(6) That at the time of the filing of said map in the clerk's
office, the title to all the land fronting the said Stevens
property and lying between high and low water mark of the west bank
of the Hudson River was in the New Jersey. "
Page 124 U. S. 660
"(7) That 'The Hoboken Land and Improvement Company' was
incorporated by the legislature of said state by an act entitled
'An act to incorporate the Hoboken Land and Improvement Company,'
approved February 21, 1838; that by § 1 of the act, they were
authorized to hold real estate, but the amount held by the company
should not exceed 1,000 acres at any time; that by the fourth
section, the company was empowered to purchase, fill up, occupy,
possess, and enjoy all land covered with water fronting and
adjoining the lands that might be owned by them, and to construct
thereon wharves, piers, and slips, and all other structures
requisite or proper for commercial and shipping purposes, provided
that it should not be lawful for the company to fill up any such
land covered with water, nor to construct any dock, pier, or wharf
immediately in front of the lands of any other person or persons
owning down to the water without the consent of such persons first
had in writing."
"(8) That by virtue of the powers and privileges of said act of
incorporation, the company purchased all the land and real estate
described in the deed of conveyance from Edwin A. Stevens and
others, bearing date May 6, 1839, and duly recorded in the clerk's
office of the County of Bergen, in Liber 13 of Deeds, fol. 105, and
in which, among other land, is included the tract of 564 acres
embraced in the Loss map, and formerly the property of Col.
Stevens."
"(9) That at the time of said transfer by Edwin A. Stevens and
others to the said Hoboken Company, the land for which these suits
were brought by the City of Hoboken was under water, and since the
date of said conveyance has been filled up, occupied, and possessed
by said company or their grantees, and that all of said land under
water was in front of and adjoining the real estate purchased by
the company; that since the time of said purchase, the company, or
their grantees, have at various times reclaimed the land from the
water and have constructed thereon wharves, harbors, piers, and
slips, and other structures requisite or proper for commercial
purposes, and have been in the exclusive possession, occupancy, and
enjoyment of the same from the time of such reclamation. "
Page 124 U. S. 661
"(10) That the City of Hoboken was incorporated by the
Legislature of the New Jersey by an act approved March 28, 1855,
with the powers and privileges therein granted,
prout the
same, and that the territorial limits of the said city embraced all
the lands shown on the Loss map, and also a large tract of real
estate adjoining the same on the west, extending to the west line
of the lands of the late John G. Coster, deceased, and that
previous to said incorporation, its territory embraced (a portion
of) one of the townships of the County of Hudson."
"(11) That the City of Hoboken never by ordinance recognized
River Street south of Third Street, and only recognized its
existence as far south as Third Street by the ordinance of January
9, 1855; that Newark, First, and Second Streets were never
recognized by ordinance east of Hudson Street prior to the
ordinance of October 5, 1875, which ordinance provided that said
streets should extend to high water mark on the Hudson River, and
that Third Street was never recognized east of River Street prior
to the said ordinance of October 5, 1875, which ordinance also
provided that the said street should extend to high water mark of
said river."
"(12) That no proceedings have been taken by the city to condemn
the lands in controversy or to take them for the purposes of a
public street except the passage of the ordinance of 1875 and the
bringing of these actions of ejectment claiming the dedication of
the lands as a public street under the Loss map of 1804."
"(13) That the Hoboken Land and Improvement Company, in
consideration of $68,583.33, executed a deed to the Camden and
Amboy Railroad Company, dated December 1, 1864, conveying a tract
of land at the foot or easterly end of Second Street, within the
boundaries of which are embraced the premises that the plaintiff
seeks to recover in the two suits against the Pennsylvania Railroad
Company, and that the Camden and Amboy Railroad Company and its
grantees or lessees have been in the possession of said lands since
said conveyance."
"(14) That the Legislature of the State pf New Jersey, by a law
approved March 31, 1869, authorized the United Railroad
Page 124 U. S. 662
Companies of New Jersey to reclaim and erect wharves and other
improvements in front of any lands then owned by them or held in
trust for them on any tidewaters of the state, and when so
reclaimed and improved, to have, hold, possess, and enjoy the same
as the owners thereof, subject only to the provisions that they
should pay for such grant unto the treasury of the state the sum of
$20,000 before the first day of July next ensuing, and should also
file in the office of the Secretary of the State a map and
description of the lands underwater in front of the upland
designated in said act; that the sum of $20,000 was paid by the
companies within the time limited and the map and description filed
as required. Exhibit D 9."
"(15) That an act of the legislature of New Jersey,
supplementary to the act to ascertain the rights of the state and
of riparian owners in the lands lying under water, approved April
11, 1864, was passed on the thirty-first of March, 1869; that by a
proviso to the third section of the same,"
"All previous grants of lands underwater or right to reclaim
made directly by legislative act or grant or license power or
authority so made or given to purchase, fill up, occupy, possess,
and enjoy lands covered with water fronting or adjoining lands
owned by the corporation, grantee, or licensee named in the
legislative act mentioned, its, his, or their representatives,
grantees, or assigns,"
are excepted from the operation of said supplement; that in the
fourth section of said act, the riparian commissioners are
authorized, for the consideration therein mentioned, to execute and
deliver in the name of the New Jersey, to all persons coming within
the terms of said proviso, a paper capable of being acknowledged
and recorded, conveying and confirming to them the title to all
lands, whether then underwater or not, which were held by previous
legislative grant or lease either in the hands of the grantees or
lessees or by their representatives or assigns.
"(16) That under the provisions of said act, the State of New
Jersey conveyed to the Hoboken Land and Improvement Company, by
deed dated December 21, 1869, for the consideration of $35,500, so
much of the land and premises purchased of Edwin A. Stevens and
others as was originally below the
Page 124 U. S. 663
high water mark of the river, and all lands underwater in front
of the same and as was situate between Second and Fourth Streets if
extended, and in front of Third Street if extended to the exterior
bulkhead and pier lines established by the riparian commissioners,
and embracing the premises claimed in the several suits against the
Hamburg-American Steam Packet Company and the North German Lloyd
Steamship Company, and that the said company and its grantees have
been in the possession of said premises since the date of said
conveyance."
"(17) That on the twenty-sixth of September, 1866, the Hoboken
Land and Improvement Company and Edwin A. Stevens executed a
conveyance to the New York Floating Dry Dock Company for certain
lots and tracts of land, above and underwater, in front of and to
the east of First Street, and the northerly half of Newark Street,
if extended, embracing the premises claimed in the suits against
Adolph E. Schmidt and others; that the said The New York Floating
Dry Dock Company transferred the same to Frederick Kuhne, trustee
of the German Transatlantic Steam Navigation Company, by deed dated
August 31, 1872, the said Kuhne, on the same day, executing a
formal declaration of trust to the said company; that on the ninth
of November, 1872, the State of New Jersey, in consideration of
$22,625, granted and conveyed to said Kuhne, trustee as aforesaid,
all the right and title of said state in and to the land and
premises described in the above recited deed from the Hoboken Land
and Improvement Company to the New York Floating Dry Dock Company,
and that the same has been in the possession of the said respective
grantees from the date of the respective conveyances."
"(18) That on the twenty-third of April, 1872, the Hoboken Land
and Improvement Company made a conveyance to the North German Lloyd
Steamship Company of a lot of land situate in front of and to the
east of Third Street if continued to the Hudson River, and
embracing the premises claimed in the several suits against the
North German Lloyd Steamship Company and the Hamburg-American
Packet Company, and the premises have been in the possession of
said company and its lessees since the date of said conveyance.
"
Page 124 U. S. 664
"(19) That River Street, as shown on the Loss map, cannot be
extended to reach the navigable waters of the Hudson River without
crossing land outside of that shown on said map and without
crossing land which, prior to April 28, 1874, belonged to the State
of New Jersey, and which the said state, by deed of that date,
leased in perpetuity to the Morris and Essex Railroad Company.
See Exhibit D 8."
Upon these facts, the Circuit Court founded its conclusions of
law, as follows:
"(1) That neither Col. John Stevens, in 1804, nor at any time
thereafter, nor his grantees of any portion of the land delineated
on the Loss map, had power to dedicate to the public use as a
highway any pant of the land or water adjoining said lands and
lying east of and below high water mark of the river as it then
existed, and that said land underwater belonged to the State of New
Jersey, and could only be dedicated or subjected to an easement by
the state and its grantees."
"(2) That the charter granted by the State of New Jersey to the
Hoboken Land and Improvement Company was a contract between the
state and the corporators; that the fourth section expressly
authorized the corporation to fill up all lands covered with water
fronting and adjoining the lands they might acquire, and to
construct thereon wharves, harbors, piers, and slips, and all other
structures requisite or proper for commercial or shipping purposes,
and that the only restriction imposed upon the corporation by the
act was that it should not fill up or build any dock, pier, or
wharf upon any land under water 'immediately in front of the lands
of any other person or persons owning down to the water,' and that
neither the plaintiff in these suits nor the State of New Jersey
nor the public was 'another person owning down to the water' within
the legal meaning and intent of said charter or contract."
"(3) That the provisions of the charter of incorporation of the
plaintiff, so far as they are applicable to the subject of the
pending controversy, negative the plaintiff's construction of its
powers under said charter, in that (1) it withholds from
Page 124 U. S. 665
the corporate authorities any right or privilege as shore or
riparian owners; (2) while it vests the council with power to take
any lands that it may judge necessary for the opening of Third
Street, it requires payment to be made to the owner for the fair
value of the lands so taken and of the improvements thereon, and
the damage done to any distinct lot or parcel or tenement by taking
any part of it for such purposes, and (3) it expressly provides
that nothing contained in the charter shall be so construed as to
interfere with or impair the vested rights and privileges of any
person or corporation whatever, except as to property taken for
public use, upon compensation as provided for in the act."
"(4) That the State pf New Jersey, being the absolute owner of
the land under the water below high water mark, which was the limit
of the Stevens dedication of streets, had the right to fill in and
make land as far as its ownership extended; that the soil thus
acquired and redeemed from the water was in no sense alluvion or
accretion which became the property of the shore owner, but
remained the land of the state or its grantees, and that no right
or authority existed in the shore owner, by dedicating the public
streets to the limits of its ownership, to charge such newly made
land with the burden of an easement over it."
"(5) That as to the two several suits against the Pennsylvania
Railroad Company, the
locus in quo is embraced within the
descriptions of the deed from the Hoboken Land and Improvement
Company to the Camden and Amboy Railroad Company dated December 6,
1864, and also within the grant of the state to the United Railroad
Companies of New Jersey of the date of March 31, 1869, wherein the
said companies were authorized, for the consideration therein
expressed and afterwards paid, 'to reclaim and erect wharves and
other improvements in front of any lands owned by or held in trust
for them,' subject to no restriction other than the regulations as
to solid filling and pier lines before recommended by the riparian
commissioners, and that the defendant, who is the lessee of the
said companies, is entitled to hold said premises against the claim
of plaintiff unless compensation be first made for the taking
thereof according to law. "
Page 124 U. S. 666
"(6) That as to the two several suits against Adolph E. Schmidt
and others, the
locus in quo is covered by the description
of the deed from the Hoboken Land and Improvement Company to the
New York Floating Dry Dock Company dated August 31, 1872, and also
within the grant from the state by its commissioners under the
provisions of the fourth section of the supplement to the act
entitled 'An act to ascertain the rights of the state and of the
riparian owners,' etc., to Frederick Kuhne, trustee, etc., under
whom the defendants hold by mesne conveyance, and that they are
entitled to retain the possession and ownership of said premises
against the plaintiff until the same is condemned and payment
therefor made according to law."
"(7) That as to the several suits against the Hamburg-American
Steam Packet Company and the North German Lloyd Steamship Company,
the locus
in quo is within the grant from the State of New
Jersey to the Hoboken Land and Improvement Company of the date of
December 21, 1869, and also of the deed of conveyance from the
Hoboken Land and Improvement Company to the North German Lloyd
Steamship Company dated April 23, 1872, and that the said
defendants are entitled to hold the said premises clear and
discharged of any right or claim therein or thereto by said
plaintiff."
"(8) That none of the land and premises claimed by the plaintiff
in either of the said several suits is subject to an easement in
consequence of the dedication of public streets made by Col. John
Stevens in the Loss map of 1804."
"(9) That the several defendants in the several suits should be
adjudged not guilty. "
Page 124 U. S. 678
MR. JUSTICE MATTHEWS, after stating the facts as above,
delivered the opinion of the Court.
In the year 1873 the Court of Errors and Appeals of New Jersey
decided the case of
Hoboken Land & Improvement Co. v.
Hoboken, 36 N.J.Law 540. It was an action of ejectment for the
recovery of the possession of a strip of land, constituting the
extension of Fourth Street, as laid out on the Loss map, over lands
below the original high water mark, reclaimed by the plaintiff in
error in that suit, continued to the new waterfront. The unanimous
judgment of that court affirmed the right of the City of Hoboken to
the premises in dispute, being the extension of that street as a
public highway. The foundation of that judgment is the dedication,
according to the Loss map, of the streets delineated upon it as
extending to the line of high water mark at that date, and the
nature of the title acquired by the Hoboken Land and Improvement
Company, under the terms of their charter, to the land made by
filling in in front of the original high water mark, upon and
across which it was proposed to extend the street so as to secure
access in behalf of the public to the stream of the river. It is
argued that as the present defendants claim title, through the
Hoboken Land and Improvement Company, to premises similarly
situated and equally affected by the original dedication, the
judgment of the Court of Errors and Appeals of New Jersey in that
case conclusively establishes the law applicable to the present,
and requires a reversal of the judgments of the circuit court of
the United States. It becomes necessary, therefore, at the outset
to ascertain and define the terms and scope of that judgment. In
that case, the court said (p. 546):
"The title to the soil between the high water line, as shown on
Loss' map, and the present high water line was originally in the
state. It became the property of the defendants by reclamation
under the powers
Page 124 U. S. 679
contained in their charter. The contention was that it was not
competent for Col. Stevens to impress upon lands, the property of
the state, a servitude such as the plaintiffs are seeking to have
them appropriated to, and that when the defendants acquire title
under legislative permission, they were entitled to hold such lands
unimpaired by the servitude imposed upon the upland. The first
branch of this proposition is conceded. But whether it will be
available to his grantees to defeat the present claim of the city
will depend upon considerations incident to the nature and effect
of the original dedication. The street, as dedicated, extended to
the high water mark as it then was. There is no street shown on the
map, or in fact along the river, in which Fourth Street might
terminate. River Street, which is the first street crossing Fourth
Street parallel with the river, is laid down on the map at a
distance of about seventy-five feet from the high water line as it
appears on the Loss map. The location of Fourth Street, with its
terminus at the water, demonstrates conclusively that its purpose
was to provide a means of access for the public to the navigable
waters, and such was the scope and purpose of the dedication."
The court then refers to the case of
New
Orleans v. United States, 10 Pet. 717, as showing
that, according to the recognized law concerning dedications to
public use, a grant of land, bounded on a stream which has
gradually changed its course by alluvial formations, extends to the
new boundaries, including the accumulated soil, and that, on the
same principle, it had been held in that state, in the case of
Jersey City v. Morris Canal, 12 N.J. 547, that a dedicated
street terminating at the waters of a navigable river is continued
to the new waterfront obtained by filling in in front on the shore
by the owner of the land over which the street was dedicated, and
to the same point the court cites the cases of
People v.
Lambier, 5 Denio 9, and
Barclay v. Howell's
Lessees, 6 Pet. 498. The learned judge, delivering
the opinion of the New Jersey Court of Errors and Appeals,
continues thus (p. 548):
"In my judgment, these cases declare the law correctly on this
subject. The essence of the gift is the means of access to the
public waters of the river,
Page 124 U. S. 680
the advantage of which induced the growth of the city by reason
of its adjacency and connection with the important navigable waters
of the Hudson, which gave a peculiar commercial value to the lots
put in the market by the dedication which can only be preserved by
maintaining unbroken the connection of the streets with the
navigable river. Any obstructions of that access would not only
derogate from the effect of the gift, but would also be a public
nuisance."
Referring then to the title claimed by the Hoboken Land and
Improvement Company, adverse to the application of this presumptive
right growing out of the original dedication on behalf of the
public, the court said (p. 549:)
"The legislature alone has the power to release the dedicated
lands and discharge the public servitude when it once has attached.
Extinguishment by legislative action, it is insisted, has been
effected as to a part of the premises in dispute by the fourth
section of the defendants' act of incorporation. The argument was
that the land below high water being the property of the state, and
both the easement and the title being under legislative control,
the extinguishment of the former, by a necessary implication,
resulted from the grant of the latter. I am unwilling to concur in
this construction of the statute. The grant to the defendants is
not of lands of the state in express and definite terms. The right
conferred is a mere privilege of reclamation and appropriation to
private uses. Its exercise is expressly limited to lands covered
with water in front of and adjoining lands that should be owned by
the corporation. The proviso annexed to the grant shows clearly the
legislative intent that the rights of others owning to the water
should not be interfered with without express consent."
Referring then to certain authorities as justifying this
construction, the opinion proceeds (p. 551):
"It is not necessary on the present occasion to express any
opinion as to whether the defendants could, under their charter,
have filled in in front of streets terminating at the water as
against the public authorities resisting the execution of the work.
The cases above cited are referred to to show the strictness of the
construction made of statutes granting privileges of this kind to
private
Page 124 U. S. 681
persons. . . . The defendants' act of incorporation would
probably relieve the defendants after the work was executed from
the consequences of an unlawful encroachment on public lands in
front of the streets, and of a nuisance in the obstruction of
navigation, but it cannot affect the public easement of access to
the navigable waters which existed before the act was passed. That
public right is entirely distinct in its essential qualities from
the title of the state in lands under tidewaters. The former
inheres in the state in its sovereign capacity. The latter is
strictly proprietary. A grant of the proprietary title will never
operate as a release or extinguishment of a sovereign right not
necessarily included within the scope of the grant.
The State,
Morris Canal & Banking Company v. Haight, 36 N.J.Law 471.
The grant to the defendants comprised the valuable privilege of
acquiring title to lands under tidewaters along their entire
frontage on the river. The public easement is legally consistent
with the title to the soil in a private owner, and the legislative
intent to vest the proprietary title in the defendants will have
legal effect without extinguishing the public right of access to
the river, derived from the original dedication. Where two public
rights of different origin, distinct in their nature, and capable
of separate enjoyment, exist, a grant of one will not extinguish
the other unless required by clear and unequivocal language. The
cardinal rule of construction is the inquiry whether the
legislative gift can take effect without drawing to it the
additional right claimed. If it can, the latter is by operation of
law excluded from the grant.
Stevens v. Paterson & Newark
Railroad Co., 34 N.J.Law 532. . . . The act incorporating the
defendants contains no language indicative of an intent to
extinguish the public right of access to the river, and the
defendants hold the title acquired by legislative permission
subject to the obligation that resulted from the original
dedication of permitting the connection of the street with the
navigable waters to remain unbroken."
The two principal propositions established by this decision, so
far as they are material to be considered in these cases,
appear
Page 124 U. S. 682
by these extracts from the opinion therefore to be as follows:
1st, that the scope and purpose of the original dedication of the
streets terminating at the water was to provide a means of access
for the public to the navigable waters of the Hudson River, and
second, that the intent and purpose of this dedication were not
defeated by the rights acquired by the Hoboken Land and Improvement
Company, under the terms of its charter, to the lands in front of
the streets terminating at the water as filled in by that company.
That company, it will be understood, had become the successor to
the title of the original proprietor, Col. John Stevens, to the
lands owned by him embraced within the limits of the Loss map not
previously sold. The object of its incorporation, and its principal
powers in respect thereto, are stated in the fourth section of its
charter, as follows:
"SEC. 4.
And be it enacted that the said company be,
and they are hereby, empowered to improve all such lands as they
are hereby authorized to own or purchase, by laying out that
portion of the same which lies north of Fourth Street in the
village of Hoboken into lots, streets, squares, lanes, alleys, and
other divisions; of leveling, raising, and grading the same or
making thereon all such wharves, workshops, factories, warehouses,
stores, dwellings, and such other buildings and improvements as may
be found or deemed necessary, ornamental, or convenient and
constructing on the lands of the said company aqueducts or
reservoirs for conveying, collecting, and providing pure and
wholesome water and letting, renting, leasing, mortgaging, selling,
or changing the same, or using any lot or other portion of any of
the said lands for depots, and for agricultural, mining, or
manufacturing purposes, and they shall have power to purchase, fill
up, occupy, possess, and enjoy all land covered with water fronting
and adjoining the lands that may be owned by them, and they may
construct thereon wharves, harbors, piers, and slips, and all other
structures requisite or proper for commercial and shipping
purposes, and when they shall have purchased the ferry right from
the owners thereof they may enjoy the same, and purchase and build
steamboats,
provided it shall not be
Page 124 U. S. 683
lawful for the said company to fill up any such land covered
with water, nor to construct any dock, pier, or wharf immediately
in front of the lands of any other person or persons owning down to
the water, without the consent of such person or persons so owning
first had in writing and obtained."
Under this section it was that they proceeded to fill up,
occupy, and improve the land covered with water fronting and
adjoining the lands in the City of Hoboken which they had
purchased, filling, as they progressed, in front of the several
streets terminating on the river as well as in front of the other
lands which they had bought. They acquired no title to the lands
reclaimed except according to the terms of the permission granted
in this section of the charter. The construction put upon this
section by the New Jersey Court of Errors and Appeals was in
substance that the license thereby granted to the company did not
convey an unqualified title to the reclaimed lands in front of the
streets, and therefore that the authority conferred by it was not
intended to exclude the public right of access to the navigable
water by an extension of the streets and highways laid out on the
original land for that purpose.
It remains to be considered whether, consistently with that view
of the law, the circumstances of the present cases distinguish them
from the case decided, so as to justify us in affirming, upon other
grounds, the judgments of the circuit court of the United States
now under review.
It appears from the findings of fact that the several defendants
in these causes are the assignees of the Hoboken Land and
Improvement Company and successors to that company in respect to
the parcels of land sought to be recovered, of all its rights and
title under its charter. The Hoboken Land and Improvement Company
conveyed the premises held by the Pennsylvania Railroad Company by
a deed executed December 1, 1864, in consideration of $68,583.33,
the grantee being the Camden and Amboy Railroad Company. On March
31, 1869, the legislature of New Jersey passed an act entitled "An
act to enable the United Companies to improve lands underwater at
Kill von Kull and other places." Laws 1869,
Page 124 U. S. 684
c. 386, p. 1026. This act recites that the United Companies had
recently secured to the state the payment of $500,000
"for the grant of lands underwater in front of lands owned by
them, and are desirous of having the right and privilege of
erecting and making wharves, piers, and other improvements in front
of other lands now owned by or in trust for them, so that they may
safely make such improvements as they may find necessary to
facilitate their business."
It enacts
"That the said United Companies shall be, and they are hereby,
authorized to reclaim and erect wharves and other improvements in
front of any lands now owned by or in trust for them, or either of
them, or by any company in which they now hold the controlling
interest, adjoining Kill von Kull, or any other tidewaters of the
state, and when so reclaimed and improved, to hold and possess and
enjoy the same as owners thereof."
It provides that such improvements shall be subject to the
regulations, where applicable, as to the line of solid filling and
as to pier lines, heretofore recommended in the report of the
commissioners made and filed under the act entitled "An act to
ascertain the rights of the state and of the riparian owners in the
lands lying under the waters of the bay of New York and elsewhere
in the state," approved April 11, 1864, but
"neither said improvements nor those which may be made by said
companies in Harsimus Cove shall be subject to any other
restrictions than those contained in said report."
It was further provided that the United Companies should pay the
further sum of $20,000 in full satisfaction for the right and
privilege thereby granted, and that they should, on or before July
1st, file in the office of the Secretary of State a map and
description of the lands underwater in front of the upland referred
to in the section. On the same day on which this act was passed and
took effect, March 31, 1869, the Legislature of New Jersey passed
an act entitled a "supplement to an act entitled "An act to
ascertain the rights of the state, and of riparian owners, in the
lands lying under the waters of the Bay of New York and elsewhere
in this state," approved April 11, 1864."
Laws 1869, p. 1017; Revision 1877, p. 982. By this act it was
provided
Page 124 U. S. 685
that the bulkhead line or lines of solid filling, and the pier
lines in the tidewaters of the Hudson River, New York Bay, and Kill
von Kull, lying between Enyard's Dock on the Kill von Kull and the
New York state line, so far as they had been recommended and
reported to the legislature by the commissioners appointed under
the original act, were adopted and declared to be fixed and
established as the exterior bulkhead and pier lines between the
points above named, as shown upon the maps accompanying the reports
of the commissioners and filed in the office of the Secretary of
State. The act made it unlawful to extend any structures into the
river beyond these lines. It repealed an act approved March 18,
1851, the object of which was to authorize the owners of lands upon
tidewaters to build wharves in front of the same, so far as the
tidewaters of the Hudson River, New York Bay, and Kill von Kull
were concerned, providing that said repeal
"shall not be construed to restore any supposed usage, right,
custom, or local common law, founded upon the tacit consent of the
state or otherwise, to fill in any land underwater below mean high
tide,"
and it prohibited any person from filling in, building on, or
making any erection on, or reclaiming any land under, the
tidewaters of the state in New York Bay, Hudson River, or Kill von
Kull without the grant or permission of the commissioners. This,
the third section of the act, however, contained the following
proviso:
"Provided, however, that neither this section nor any provision
in this act contained shall in any wise repeal or impair any grant
of land underwater, or right to reclaim made directly by
legislative act, or grant, or license, power, or authority so made
or given to purchase, fill up, occupy, possess, and enjoy lands
covered with water fronting and adjoining lands owned or authorized
to be owned by the corporation or grantee or licensee in the
legislative act mentioned, its, his, or their representatives,
grantees, or assigns, or to repeal or impair any grant or license,
power or authority to erect or build docks, wharves, and piers
opposite and adjoining lands owned or authorized to be owned by the
corporation or grantee or licensee in the legislative act
mentioned, its, his, or their representatives, grantees, or assigns
heretofore made or
Page 124 U. S. 686
given directly by legislative act, whether said acts are or are
not repealable, and as to any revocable license given by the board
of chosen freeholders of a county to build docks, wharves, or
piers, or to fill in or reclaim any lands underwater in the said
New York Bay, Hudson River, or Kill von Kull, the same shall be
irrevocable so far as the land underwater has been reclaimed or
built upon under such license at the time that this act takes
effect."
The fourth section of the act provides that in case any person
who by any legislative act is a grantee or licensee or has any such
power or authority shall be entitled to a deed in the name of the
State of New Jersey conveying the land in the proviso to the third
section mentioned, whether underwater at that time or not, with the
benefit of an express covenant that the state would not make or
give any grant or license, power or authority affecting lands
underwater in front of said lands, and the commissioners, or any
two of them, with the Governor and Attorney General for the time
being, were authorized to execute and deliver and acknowledge, in
the name of the state, a lease in perpetuity to such grantee or
licensee of such lands and rights, reserving an annual rental of
three dollars for each lineal foot measuring on the bulkhead line,
or a conveyance in fee upon the payment of $50 for each lineal foot
measuring on the bulkhead line, in front of the land included in
said conveyance. It was also provided that
"The conveyance or lease of the commissioners under this or any
other section of this act shall not merely pass the title to the
land therein described, but the right of the grantee or licensee,
individual, or corporation, his, her, or their heirs and assigns,
to exclude to the exterior bulkhead line the tidewater, by filling
in or otherwise improving the same, and to appropriate the land to
exclusive private uses, and so far as the upland, from time to time
made, shall adjoin the navigable water, the said conveyance or
lease shall vest in the grantee or licensee, individual or
corporation, and their heirs and assigns the rights to the
perquisites of wharfage and other like profits, tolls, and
charges."
Under the provisions of said act, the State of New Jersey,
Page 124 U. S. 687
according to the findings of fact, for a valuable consideration,
has conveyed to the Hoboken Land and Improvement Company, by deeds
and conveyances properly executed, or to its assigns the premises
claimed in the several suits against the defendants other than the
Pennsylvania Railroad Company.
An objection is taken in argument to the validity under the
Constitution of New Jersey of the act to enable the United
Companies to improve land underwater at Kill von Kull and other
places of March 31, 1869, under which the Pennsylvania Railroad
Company claims title, on the ground that the title of the act does
not sufficiently indicate its subject, and that the subject is not
single. The article of the state constitution to which this act is
alleged to be repugnant is article 4, section 7, par. 4, as
follows:
"To avoid improper influences which may result from intermixing
in one and the same act such things as have no proper relation to
each other, every law shall embrace but one object, and that shall
be expressed in the title."
We cannot think, however, that this objection is well founded.
The subject of the enactment is single; the United Companies, it
being recited, having paid $500,000 for the grant of lands
underwater in front of lands owned by them, were desirous of having
the right and privilege of erecting and making wharves, piers, and
other improvements in front of other lands now owned by or in trust
for them so that they might safely make such improvements as they
might find necessary to facilitate their business. This is the
declared purpose of the act. It has and professes to have but a
single object -- this was to confirm the title of the United
Companies to the lands described and to define the uses to which
they were subject and to which they might lawfully be devoted. The
subject matter of the legislation was the interest of the United
Companies in respect to such land wherever situate. For the right
conveyed by the new act, a further consideration of $20,000 was
exacted and paid, and it was certainly appropriate that in the same
act requiring that consideration to be paid there should be a full
statement of all the rights intended to be secured. The statute
therefore is unobjectionable in point of form.
Page 124 U. S. 688
It is next objected that this act of 1869 can have no
application to the lands in question, because, by its terms, it
applies only to lands underwater in front of upland owned by the
grantees, and that it did not appear that at that time the United
Companies owned any upland which these lands were in front of. We
cannot doubt, however, that the land in question refers to and
embraces the premises in controversy. It expressly refers to all
lands owned by the United Companies adjoining any of the tidewaters
of the state, and undoubtedly had in view the lands conveyed by the
Hoboken Land and Improvement Company by the deed of December 1,
1864. These they were authorized to reclaim, so far as necessary,
by filling out to the lines fixed by the commissioners under the
Act of April 11, 1864, as lines of solid filling and as pier lines,
upon which they were authorized to erect wharves and other
improvements, and when so reclaimed and improved to have, hold,
possess, and enjoy the same as owners thereof, and so absolutely
such owners as that the improvements should not be subject to any
other restrictions than those contained in the report of the
commissioners. Under this act, having paid the consideration
required, they filed the map and the description of the lands
specified in the last proviso of the section, and the findings of
the circuit court authorize us to assume that this map and
description embraced the premises in controversy.
In the examination of the effect to be given to the riparian
laws of the State of New Jersey by the Act of April 11, 1864, in
connection with the supplementary Act of March 31, 1869, it is to
be borne in mind that the lands below high water mark, constituting
the shores and submerged lands of the navigable waters of the
state, were, according to its laws, the property of the state as
sovereign. Over these lands it had absolute and exclusive dominion,
including the right to appropriate them to such uses as might best
serve its views of the public interest, subject to the power
conferred by the Constitution upon Congress to regulate foreign and
interstate commerce. The object of the legislation in question was
evidently to define the relative rights of the state, representing
the public sovereignty and interest, and of the owners of land
bounded
Page 124 U. S. 689
by high water mark. The regulations to this end had in view a
definite and permanent demarcation of the line in the water beyond
which there should be no obstructions or impediments to the public
right of navigation; they also contemplated as of equal importance
the manner in which and the persons by whom the intermediate space
between those exterior lines and the original high water mark
should be filled up, reclaimed, occupied, and used so as to make
the enjoyment of such property most valuable to private and public
interests involved in the public right of navigating the water. It
was for this reason that this space was made the subject of grants
by the state to corporations and other persons who were riparian
owners adjacent thereto, with authority to erect or build thereon
docks, wharves, and piers, and that prior grants of a similar
character, under legislative authority, even although in the form
of mere executed licenses, were confirmed and perpetuated. It was
for that reason that, in the grant to the United Companies, this
right and privilege of erecting and making wharves, piers, and
other improvements was declared to be "so that they may safely make
such improvements as they may find necessary to facilitate their
business." For the same reason, it was declared in the Act of March
31, 1869, that the conveyance or lease of the commissioners under
the act should not merely pass the title to the land therein
described, but the right to reclaim and fill in and otherwise
improve the same, and "to appropriate the land to exclusive private
uses." In view of the same policy it was that by the same act, in
reference to land underwater which had not been improved and in
respect to which no authority or license to reclaim the same had
been previously granted, it was provided that the grant from the
state should be offered first to the riparian proprietor, and if
after six months' notice he declined to buy the same from the state
at its statutory price, the commissioners were authorized to grant
the same to others having no riparian ownership, on condition,
however, that the interest of the riparian owner as such in the
shore and front of his land thus to be taken from his use should be
paid for at a valuation to be judicially ascertained. The intent of
this legislation is therefore
Page 124 U. S. 690
manifest to treat the title and interest of the state in these
shore lands as a distinct and separate estate, to be dealt with and
disposed of in accordance with the terms of the statutes -- first
by a sale and conveyance to the riparian owner himself or to his
assignees, and second, in case of his neglect to take from the
state its grant on the terms offered, then to a stranger who,
succeeding to the state's title, would have no relation to the
adjacent riparian owner except that of a common boundary. The title
acquired by such a grantee therefore differs in every respect from
that of a riparian owner to the alluvial accretions made by the
changes in a shifting stream which constitutes the boundary of his
possessions. The latter comes to him by virtue of his title to land
bounded by a stream, and belongs to him because it is within the
description of his original grant, but the title under the New
Jersey grants is not only of a new estate, but in a new subject
divided from the upland or riparian property by a fixed and
permanent boundary.
The nature of the title in the state to lands under tidewater
was thoroughly considered by the Court of Errors and Appeals of New
Jersey in the case of
Stevens v. Paterson & Newark Railroad
Co., 34 N.J.Law 532. It was there declared (p. 549):
"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 rights 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 the 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 was therefore held in that case that it was competent for the
legislative power of the state to grant to a stranger lands
constituting the shore of a navigable river under tidewater, below
the high water mark, to be occupied and used
Page 124 U. S. 691
with structures and improvements in such a manner as to cut off
the access of the riparian owner from his land to the water, and
that without making compensation to him for such loss. The Act of
March 31, 1869, as we have seen, afterwards secured to the riparian
owner the option of purchasing from the state its title to the
shore, or, if granted to a stranger, compensation for the value of
his privilege. Having in view the manifest policy of this
legislation and the force and meaning of its language, we do not
hesitate to adopt the conclusion that the several grants of the
state to the United Companies under the Act of March 31, 1869, to
enable them to improve their lands underwater at Kill von Kull and
other places, and the grants under the general act of the same
date, under which the other defendants claim, were intended to
secure to the grantees the whole beneficial interest and estate in
the property described, for their exclusive use, for the purposes
expressed and intended in the grants, and, construing these
conveyances most strongly in favor of the public, and yet so as not
to defeat the grants themselves, we also conclude that the rights
conveyed exclude every right of use or occupancy on the part of the
public in the land itself. The land granted is specifically
described by metes and bounds. The grant is a grant of the estate
in the land, and not of a mere franchise or incorporeal
hereditament. The uses declared are such as require an exclusive
possession by the grantees, that they may hold, possess, improve,
and use the same for their own use and profit according to the
nature of the business which by law they are authorized to conduct.
In other words, under these grants, the land conveyed is held by
the grantees on the same terms on which all other lands are held by
private persons under absolute titles, and every previous right of
the State of New Jersey therein, whether proprietary or sovereign,
is transferred or extinguished, except such sovereign rights as the
state may lawfully exercise over all other private property.
It is further objected, however, that upon this supposition the
grants of the state in question are absolute and unqualified;
nevertheless they operated only upon the title
Page 124 U. S. 692
which the state had when it made them, and that, construing the
original dedication of Stevens by the Loss map of the streets to
the river as containing an implied covenant that they should be
extended through any after-acquired lands thereafter owned by
Stevens or by those claiming under him, the conclusion follows that
the defendants, on acquiring the title of the state to the premises
in dispute, were thereafter estopped to deny the right of the City
of Hoboken to the easement which it seeks to establish by its
recovery in these actions. It is admitted in the argument by
counsel for the plaintiff that the dedication could not impose a
burden on the lands of the state, and that no such burden existed
as long as the state remained the owner; but it is contended that,
as the grants of the state only operated on its present title,
"when the state's title passed to the successor of John Stevens,
who was estopped from excluding these streets from access to
tidewater, the right as against him by estoppel sprang at once into
existence, and estopped him and all claiming under him."
Suppose, instead of a dedication, it is said, John Stevens had
made an express covenant with the city that as he acquired the
state's title to these lands and reclaimed them, he would continue
the streets to the new water line. In such case, no one would
contend that the riparian acts, or the grants made under them,
would discharge such liability; it would attach to the lands as he
acquired them, and bind him and his assigns. The dedication
operates, it is claimed, on the same principle. No grant of the
state's title would extinguish a liability which could not attach
until after the state had parted with all its title to the lands.
But in this case, there was no express covenant, and if any to that
effect can be implied by law, it arises only upon the principle of
an estoppel. Whether such an estoppel would arise upon the
circumstances of the case it is not necessary for us to discuss or
decide. If we suppose it to exist, so that if the title acquired by
the defendants from the state had been acquired from some other
source, it would have been affected by it; nevertheless, the
estoppel cannot apply to the defendants as successors to the title
of the state. The grant, being
Page 124 U. S. 693
from the state, creates an estoppel against the estoppel; for
the state, in respect to the easements claimed, is the
representative of the public, superior in authority and paramount
in right to the City of Hoboken; and, as we have already seen, the
existence of the easement defeats the grant of the state. The state
therefore being estopped by its grant, is estopped to deny its
effect to extinguish the public right to the easement claimed. The
right insisted upon in these actions by the City of Hoboken is the
public right, and not the right of individual citizens, claiming by
virtue of conveyances of lots abutting on streets made by Stevens
or his successors in the title. The public right represented by the
plaintiff is subordinate to the state, and subject to its control.
The state may release the obligation to the public, may discharge
the land of the burden of the easement, and extinguish the public
right to its enjoyment. Whatever it may do in that behalf
conclusively binds the local authorities when, as in the present
cases, the rights of action asserted are based exclusively on the
public right.
The extension of the easement of the public streets over the
shore, when filled up below the original high water mark to a new
water line, is, by the supposition made, a mere legal conclusion.
The original proprietor had no power to extend the dedication
beyond his own lines over the public domain. The estoppel sought to
be raised against him by his subsequent acquisition of the title of
the state to the shore is a mere conclusion of law, and may be
extinguished by a subsequent law. Such is the present case. If the
law prior to the statutes of March 31, 1869, extended the easements
of the dedicated streets to the newly made shoreline, a subsequent
law might extinguish it. This is what in fact was done, for the
statutes of that date were not merely grants of rights of property,
but were laws, which had the force of repealing all prior laws
inconsistent with them.
Our conclusion, therefore, is that the grants from the State of
New Jersey, under which the defendants claim, respectively, are a
complete bar to the recovery sought against them in these suits.
The effect of these grants was not considered or determined by the
Court of Errors and Appeals of New Jersey
Page 124 U. S. 694
in the case of
Hoboken Land & Improvement Co. v.
Hoboken, 36 N.J.Law 540, and they were not elements in that
judgment. The present cases are decided upon the distinction
created by these grants from the state. It has not been necessary,
therefore, for us to consider other questions raised in the
argument in reference to the soundness in point of law of the
judgment of the courts of New Jersey upon the facts involved, nor
as to our obligation to follow that judgment as conclusive evidence
of the settled law of the state on the subject. The new elements
which have been introduced into these cases establish the rights of
the defendants, as we have declared them, upon the basis of the
absolute and unqualified title derived by them under direct grants
from the State of New Jersey. Under these grants, they have and
hold the rightful and exclusive possession of the premises in
controversy against the adverse claim of the plaintiff to any
easement or right of way upon and over them, by virtue of the
original dedication of the streets to high water mark on the Loss
map.
The several judgments of the circuit court in these cases are
therefore
Affirmed.
