1. The boundary between Delaware and New Jersey, within a circle
of twelve-miles about the town of New Castle, is the low water mark
of the Delaware River on the East, or New Jersey, side, and below
the circle it is the thalweg or main channel of navigation in
Delaware River and Delaware Bay. Pp. 291 U. S. 363
291 U. S.
2. Delaware's title to the river bed within the circle is
derived as follows:
(1) From a feoffment, describing the Delaware territory within
the circle, including the river, its islands, and soil, made by the
Duke of York to William Penn, August 24, 1682, when the present
territory of Delaware, having been taken over from the Dutch, was
governed as a dependency of the Government and Colony of New York
under governors commissioned by the Duke. P. 291 U. S.
(2) Letters patent, March 22, 1682/3, from the Crown, granting
to the Duke of York the identical lands and waters described in the
deed of feoffment, and inuring to the feoffee by virtue of a
covenant for further assurance contained in the deed of feoffment.
P. 291 U. S.
(3) Confirmation of the title by practically uninterrupted
possession of the Delaware territory on the part of Penn and his
successors, as Proprietaries and Governors, from the date of the
feoffment to the Revolution. P. 291 U. S.
Page 291 U. S. 362
(4) Succession of the Delaware to dominion over the same
territory. P. 291 U. S.
3. Early Acts and Resolutions of the Legislature of the State of
Delaware attacking the right of the Penns to the vacant and
uncultivated lands within the state and for that purpose declaring
that the right of soil was, at the date of the Treaty of Paris, in
the British Crown, and passed by that Treaty to the citizens of the
state, had no effect, either as an estoppel or as a practical
construction, upon the ancient boundaries of the colony and state
as laid down originally by the letters patent of 1683. P.
291 U. S.
4. The letters patent of 1683 were not surrendered. P.
291 U. S.
5. The Crown had power to grant away the soil beneath navigable
waters as an incident to a grant or delegation of powers strictly
governmental. P. 291 U. S.
6. Acquiescence by Delaware in wharfing out by riparian
proprietors from the New Jersey side did not affect her sovereign
title to the riverbed within the circle. P. 291 U. S.
7. Acts of dominion by New Jersey over the riverbed beyond the
low water mark, within the twelve mile circle, such as service of
process, assessments for taxation, the making of deeds, etc., could
not serve to alter the boundary, not having been acquiesced in by
Delaware. P. 291 U. S.
8. The compact between New Jersey and Delaware of March, 1905,
relating to riparian rights, service of process, and rights of
fishery, did not affect the boundary. P. 291 U. S.
9. When New Jersey and Delaware became independent states, the
title to the soil of the river below the circle and to the soil of
the bay had not been granted, but still was in the Crown of
England, and the division of these waters is to be determined by
the principles of international law. P. 291 U. S.
10. The modern rule of international law divides boundary rivers
between states by the main channel of navigation, if there is one,
rather than by the geographical center, and applies the same
doctrine of equality to estuaries and bays in which the dominant
sailing channel can be followed to the sea. P. 291 U. S.
11. The doctrine of thalweg is applicable between states of the
Union where the boundary in question has not been fixed in some
other way, as by agreement, practical location, prescription, and
it applies even as between states that existed before the doctrine
became fully established in international law. Pp. 291 U. S. 380
291 U. S.
12. Delaware's claim that there is not, or was not in 1783, any
definite channel of navigation down Delaware Bay, and her
Page 291 U. S. 363
the geographical center should be made the boundary in the river
below the circle to avoid a sharp and inconvenient turn where the
river meets the bay, are rejected. Pp. 291 U. S. 379
291 U. S.
Final Hearing on the report of William L. Rawls, Esq., Special
Master, in a suit to establish the boundary between the two states.
Leave was granted to file the bill of complaint in this case on
June 3, 1929 (279 U.S. 825), and it was filed on June 4, 1929. The
defendant's answer was filed on October 7, 1929, and on January 8,
1930 (280 U.S. 529), the Special Master was appointed and the case
referred to him. His report was filed October 9, 1934, and the
cause was argued on exceptions to that report.
MR. JUSTICE CARDOZO delivered the opinion of the Court.
Invoking our original jurisdiction, New Jersey brings Delaware
into this Court and prays for a determination of the boundary in
Delaware Bay and river.
The controversy divides itself into two branches, distinct from
each other in respect of facts and law. The first branch has to do
with the title to the bed or subaqueous soil of the Delaware river
within a circle of twelve miles about the town of New Castle.
Delaware claims to be the owner of the entire bed of the river
within the limits of this circle up to low water mark on the east
or New Jersey side. New Jersey claims to be the owner
Page 291 U. S. 364
up to the middle of the channel. The second branch of the
controversy has to do with the boundary line between the two states
in the river below the circle and in the bay below the river. In
that territory, as in the river above, New Jersey bounds her title
by the thalweg. Delaware makes the division at the geographical
center, an irregular line midway between the banks or shores.
The special master appointed by this Court in January, 1930 (280
U.S. 529), has now filed his report. As to the boundary within the
circle, his report is in favor of Delaware. To that part of the
report exceptions have been filed by New Jersey. As to the boundary
in the bay and in the river below the circle, his report is in
favor of New Jersey. To that part exceptions have been filed by
Delaware. The two branches of the controversy will be separately
First. The boundary within the circle.
Delaware traces her title to the riverbed within the circle
through deeds going back two and a half centuries and more.
On August 24, 1682, the Duke of York delivered to William Penn a
deed of feoffment for the twelve-mile circle whereby he conveyed to
"ALL THAT the Towne of Newcastle otherwise called Delaware and
All that Tract of Land lying within the Compass or Circle of Twelve
Miles about the same scituate lying and being upon the River
Delaware in America And all Islands in the same River Delaware and
the said River and Soyle thereof lying North of the Southermost
part of the said Circle of Twelve Miles about the said Towne."
On October 28, 1682, there was formal livery of seisin of the
lands and waters within the twelve-mile circle. John Moll and
Ephriam Herman, attorneys appointed in the deed of feoffment, gave
possession and seisin
"by delivery of the fort of the sd Town and leaving the sd
William Penn in quiet and peaceable possession thereof and
Page 291 U. S. 365
by the delivery of turf and twig and water and Soyle of the
River of Delaware. . . . We did deliver allso unto him one turf
with a twigg upon it a porringer with River water and Soyle in part
of all what was specified in the sd Indentures or deeds."
By force of these acts, there was conveyed to the feoffee any
title to the riverbed within the circle that then belonged to the
feoffor. New Jersey insists, however, that the feoffor, the Duke of
York, was not then the owner of any territory west of the easterly
side of the Delaware river, and hence, at the time of the
feoffment, had no title to convey. Letters patent from Charles II,
dated May 12, 1664, had granted to the Duke full title to and
government of a large territory in America, embracing much of New
England and, in particular, "all the land from the west side of
Connecticut River to the east side of Delaware Bay," not including,
however, lands or waters to the west. True, the Duke had gone into
possession of lands westward of the grant, including land within
the circle, and, through his delegates and deputies, was exercising
powers of government. His acts in that behalf were the outcome of
conflicts with the Dutch. What is now the state of Delaware had
been subject to the government of the Dutch until 1664, when, with
the victory of the English arms, it became an English colony. From
that time until August 24, 1682, the date of the deed of feoffment,
Delaware was governed (with the exception of a brief period from
July, 1763, to February 9, 1764) as a dependency of the Government
and Colony of New York through governors commissioned by the Duke
of York and Albany. Upon the delivery of the deed to Penn, the Duke
was the de facto
overlord of the land within the circle,
though title at that time was still vested in the Crown.
The deed of feoffment had in it a covenant for further assurance
at any time within seven years. At the instance
Page 291 U. S. 366
of Penn and with little delay, the feoffor took steps to carry
out this covenant, and thus rectify his title. On March 22, 1682/3,
letters patent under the Great Seal of England were issued to the
Duke of York for the identical lands and waters described in the
deed of feoffment from York to William Penn. [Footnote 1
] There is no doubt that these letters
were delivered to the Duke. The special master has found, upon
evidence supporting the conclusion, that they were afterwards
delivered to Penn, from whom they passed to his descendants. The
master also found, and again upon sufficient evidence, that the
letters patent so delivered
"were never thereafter surrendered, nor was the grant of lands
and waters thereby made ever abandoned, nor was its validity ever
impaired by any act or proceeding."
By force of this grant, there passed to the Duke of York a title
to the land within the circle which inured by estoppel to the
grantee under the feoffment.
The applicable principle in such circumstances is among the
rudiments of the law of property. The covenant generating the
estoppel is commonly one of warranty or seisin. Irvine v.
9 Wall. 617; Van
Renesselaer v. Kearney,
11 How. 297, 52 U. S.
-325; Tefft v. Munson,
Page 291 U. S. 367
N.Y. 97; Vanderheyden v. Crandall,
2 Denio 9,
aff'd, Wendell v. Crandall,
1 N.Y. 491; White v.
24 Pick. 324. [Footnote 2
] The effect is the same where the covenant is
one for further assurance. Taylor v. Debar,
274 (1676); Lamb v. Carter,
14 Fed.Cas. 991, 1 Sawy. 212;
Wholey v. Cavanaugh,
88 Cal. 132, 25 P. 1112; Hope v.
10 Minn. 141; Norfleet v. Russell,
64 Mo. 176.
To enforce that conclusion, we do not need to wander far afield and
consider other deeds than the specific one in question. There
exists for our enlightenment the opinion of the chancellor in an
historic litigation where the relation between the feoffment of
August, 1682, and the later patent from the Crown was the very
point at issue. A dispute had arisen between Lord Baltimore and
Penn as to the title to part of the Delaware territory. On May 10,
1732, after Penn was in his grave, there was an agreement between
his sons and Baltimore for the settlement of the boundaries between
Pennsylvania, Delaware, and Maryland. Three years later, a bill was
filed in chancery for the specific performance of the agreement of
May, 1732, to which suit the Attorney General was made a party as
the representative of the Crown. [Footnote 3
] The Duke of York had become King under the
name of James II on February 6, 1685, and George II sat upon the
throne when the cause in chancery was heard. The Lord Chancellor,
Hardwicke, gave judgment for the Penns. Penn v. Lord
1 Ves Sen. 444; also Ridg. t.
H. 332. In
his opinion, he holds that the effect of the letters patent is to
make the deed of feoffment good either by force of an estoppel or
by converting the feoffor into a trustee for
Page 291 U. S. 368
the feoffee. The objection is urged upon him that an estoppel
will not prevail against the Crown. The chancellor makes it plain
that he is not favorably impressed.
"For the Duke of York, being then [i.e.,
at the date of
the feoffment] in nature of a common person, was in a condition to
be estopped by a proper instrument."
At the same time, he is diffident about declaring a technical
estoppel, nor is there need to go so far. If his Majesty was not
estopped, he was, in any event, a trustee of the title for the use
of the feoffee, which will bring about a like result.
"The Duke of York . . . while a subject was to be considered as
a trustee; why not afterwards as a royal trustee? . . . His
successors take the legal estate under the same equity, and it is
sufficient for plaintiffs if they have an equitable estate."
So Lord Baltimore must make performance in accordance with the
contract. True, the decree for performance will be "without
prejudice to any prerogative, right, or interest in the Crown."
This again is by virtue of the deference owing to the Crown by the
keeper of his conscience.
"Being liberated from the restraints of the lord chancellor, we
are at liberty to say that the duke, at the date of the deeds,
being a subject, was, in this respect, only 'a common person,' and
as much bound by estoppel as any other subject."
Per Sergeant, Arbitrator, in the case of Pea Patch
30 Fed.Cas. 1123, 1151.
In the meantime, Penn had proceeded to organize a government for
the Delaware territory. On October 29, 1682, he issued a summons to
persons of note in the community to meet him at the town of New
Castle on November 2 for the holding of a General Court to settle
the jurisdiction of the territory. At that court, he announced his
title derived from the Duke of York, and instructed the magistrates
that, until laws were enacted by a proper assembly, they should
take for their guide the laws that had been provided by his Royal
Highness for the Province
Page 291 U. S. 369
of New York, promising that they should be governed thereafter
by such laws and orders as they should consent to by their own
deputies and representatives. A general assembly having been
summoned, an Act of Union was passed, December 7, 1682, whereby the
three counties of Delaware territory were annexed to Pennsylvania.
In the same month was enacted an Act of Settlement providing for a
Provincial Council and Assembly and reciting the letters patent to
Pennsylvania and the deeds of release and feoffment from the Duke
of York. Following the establishment of this government, Penn and
his successors as Proprietaries and Governors, and the Assembly and
Council of the Province, together with the Assembly of the Lower
Counties subsequently established, continued to exercise the power
of government in all its plenitude over Pennsylvania and the
Delaware territory. This continued until the Revolution, except for
a brief interruption during the reign of William and Mary.
There were, it is true, intermittent challenges both of the
proprietary interest of Penn and his successors and of their
governmental powers. As to these last, the most serious challenge
was one that followed the accession of William and Mary in
February, 1689, after the deposition of James II as the result of
the "Glorious Revolution." Penn, who had been a favorite of royalty
during the reign of James, was for a time under a cloud. In 1692,
he was removed from the Government of Pennsylvania, including the
New Castle country, and his place given to a successor. But he was
soon restored to power, and, it seems, to the royal confidence. In
August, 1694, there was an Order in Council by which he was
reestablished in his former office. In the same month, letters
patent issued under the Great Seal of state restoring him in the
most formal way to the administration of the government of the
"said province and territories," and revoking any other appointment
Page 291 U. S. 370
This patent, it would seem, had settled for all time the
validity of his exercise of governmental powers, however much it
may have left in doubt his title to the land. Mutterings of
uncertainty, however, continued to be heard as to his rights and
powers in both aspects. In 1701, he had correspondence with the
Board of Trade which showed itself restless on the subject of his
ownership. At intervals during the reign of Anne and afterwards, he
was required to sign a declaration that the approval by the Crown
of his governmental acts, such as the appointment of a deputy, was
not to be construed in any manner to diminish "her Majesty's claim
of right to the said three lower counties." But the claims of right
thus reserved were never admitted by Penn to be valid, nor were
they ever pressed by the Crown. Not even the petitions of jealous
rivals, egging the Crown on, were of avail to wake it into action.
Thus, in 1717, the Earl of Sutherland applied for a grant of the
three Lower Counties, asserting that he was ready to prove that the
title was in the Crown. The Attorney General issued a summons to
Penn to be present at a hearing, but Penn, who had suffered a
stroke of apoplexy, was unable to appear, and the proceeding was
allowed to lapse. A like fate awaited similar petitions submitted
in later years. Reservations of the royal claims might continue to
be made by cautious scriveners. By the time of the Revolution they
were little more than pious formulas. A title, good of record when
reinforced by the patent of 1683, had been confirmed by a century
of undisturbed possession. When the Treaty of Paris was signed in
1783, the land within the circle was part of the territory of
Delaware, and the title was in the Penns or in persons claiming
The Declaration of Independence had made Delaware a state with
boundaries fixed as of that time. Nothing that was done by her
legislature thereafter has had the
Page 291 U. S. 371
effect of cutting down her territorial limits, however much it
may have affected the private ownership of the Penns and their
successors. Nothing thereafter done has had the effect of adding to
the territory then belonging to New Jersey. Even so, a word must be
said as to resolutions and statutes that became a law in Delaware
shortly after the treaty of peace, since they are much relied upon
by New Jersey as marking the true boundary. The legislation is
directed to the disposition of unappropriated lands. A resolution
of January 16, 1793, recommends to the citizens of Delaware
"to take up no Warrants and to accept of no Patents or Deeds
whatever from John Penn the Younger and John Penn, or either of
them, or their Agents or Attornies."
A statute of February 2, 1793, visits the penalty of a fine on
inhabitants refusing to abide by these recommendations and
accepting any grants of vacant or uncultivated lands except from
persons acting under the authority of the state. Another statute
(February 7, 1794) recites in an elaborate preamble that "the right
to the soil and lands within the known and established limits of
this state was heretofore claimed by the crown of Great Britain,"
that, by the treaty of peace between his Britannic Majesty and the
United States of America, his Majesty
"relinquished all rights, proprietary and territorial within the
limits of the said United States to the citizens of the same, for
their sole use and benefit, by virtue whereof the soil and lands
within the limits of this state became the right and property of
the citizens thereof,"
"the claims of the late and former pretended proprietaries of
this state, to the soil and lands contained within the same, are
not founded either in law or in equity."
We do not yield assent to the contention that the effect of
these acts was to establish a new boundary between Delaware and New
Jersey either as the result of estoppel or through practical
construction. There is no element of estoppel. The declarations in
respect of title were not
Page 291 U. S. 372
addressed to New Jersey, nor did action follow on the faith of
them. There is not even a sufficient basis for a claim of practical
construction. The declarations were framed alio intuitu,
with an eye to private titles, not to public boundaries. In the
economic unrest and disturbance of the day, the inhabitants of
Delaware were ready to disavow the claims of the Penns and others
to the ownership of vast areas of uncultivated land. This is far
from meaning that there was a disavowal of the grants whereby the
colony of Delaware had derived its form and being. What the
legislation had in view was enlargement, not restriction, of the
domain of common ownership. The truth, indeed, is that, for the
purpose of an inquiry into the boundaries between colonies or
states, questions of private ownership are of secondary importance.
The Penns' title may have been misjudged, or may even have failed
for reasons not now apparent, and yet it does not follow that the
boundaries of New Jersey had thereby been enlarged or those of
Delaware curtailed. Such a result could not be wrought without
successfully impeaching the letters patent of 1683 whereby a
seigniory in the new world was conveyed by Charles to James. The
effect of those letters was to define the territorial limits of the
province or colony of Delaware, whether Penn and his successors
took anything thereby or not. The colony of Delaware, as defined by
this patent, was the one that declared its independence in 1776 and
that succeeded in 1783 to any fragment of ownership abiding in the
Crown. In resuming the title to uncultivated lands, its people had
no thought of modifying the ancient boundaries, of relinquishing a
foot of soil above the waters or below. The later history of the
controversy between the states makes this abundantly clear, if it
could otherwise be doubtful. What concerns us now is more than a
question of meum
between one man and
another. One concern
Page 291 U. S. 373
is with the meaning of an instrument of government, a patent of
jurisdiction, which was to generate a state.
The letters patent of March 1683, being basic to the defendant's
title, there must be another word of reference to the contention
for the complainant that the letters were surrendered in April,
1683, a month after they were granted. The special master, as we
have already stated, has made a finding to the contrary, and has
summarized the evidence. There would be no profit now in repeating
the analysis. Not only does the master find that there was no
surrender of the patent, he finds that the original patent is in
evidence before him. His holding that there was no surrender is in
line with Lord Hardwicke's judgment in Penn v. Lord
His holding that the original letters are extant
and in the custody of Delaware is in line with the judgment of the
arbitrator, rendered eighty-five years ago, in the case of Pea
Patch Island, supra.
We see no adequate reason for rejecting
Assuming the existence of the patent, New Jersey makes the claim
that, in its application to the riverbed, it is void upon its face
in that the Crown was without power to grant away the soil beneath
navigable waters. The objection will not hold. The letters patent
to the Duke of York and the grant from York to Penn were not for
private uses solely, but for purposes of government. There is high
authority for the view that power was in the Crown by virtue of the
to convey the soil beneath the waters for
uses merely private, but subject always to the jus
the right to navigate and fish. Commonwealth v.
7 Cush. 53; People v. N.Y. & S.I. Ferry
68 N.Y. 71. 76; People v. Steeplechase Park Co.,
218 N.Y. 459, 473, 113 N.E. 521; Shively v. Bowlby,
152 U. S. 1
152 U. S. 13
Hale, De Jure Maris, p. 22. Never has it been doubted that the
grant will be upheld
Page 291 U. S. 374
where the soil has been conveyed as an incident to the grant or
delegation of powers strictly governmental. Martin v.
16 Pet. 367, 41 U. S. 410
41 U. S. 413
Massachusetts v. New York, 271 U. S.
, 271 U. S. 89
In such circumstances,
"the lands under the navigable waters passed to the grantee, as
one of the royalties incident to the powers of government, and were
to be held by him, in the same manner, and for the same purposes,
that the navigable waters of England, and the soils under them, are
held by the Crown."
Martin v. Waddell's Lessee, supra,
p. 41 U. S. 413
The grant from Charles II to York was upon its face an instrument
of government. The feoffments from York to Penn were in furtherance
of kindred ends. Penn had no thought of using his title to the soil
as an obstruction to navigation or to any other common right. In a
letter to one of his commissioners, he writes as early as April,
1683, concerning boundary negotiations with the Province of New
"Insist upon my Title to ye River, Soyl, and Islands thereof
according to Grant. . . . Whatever bee ye Argument, they are
bounded Westward by the River Delaware, yn they cannot go beyond
low water mark for land. They have ye Liberty of ye River, but not
The title to the soil, which was subject to the jus
while it was vested in the King and his grantees, is
subject to the same restrictions in the ownership of Delaware. The
patent and the deeds under it are not void for want of power.
Delaware's chain of title has now been followed from the
feoffment of 1682 to the early days of statehood, and has been
found to be unbroken. The question remains whether some other and
better chain can be brought forward by New Jersey. Unless this can
be done, Delaware must prevail. But, down to the Peace of 1783 at
the end of the Revolution, New Jersey has no chain to offer. Up to
that time, if not afterwards, her reliance is less upon
Page 291 U. S. 375
the strength of her own title than on the weakness of her
adversary's. The supposed defects have already been reviewed in
this opinion, and have been found to be unreal. There is still to
be considered whether events during the years of statehood have
worked a change of ownership. New Jersey argues that they have,
though not even during those years does she build her claim of
title upon instruments of record. Her claim is rather this -- that,
through the exercise of dominion by riparian proprietors and by the
officers of government, title to the subaqueous soil up to the
centre of the channel has been developed by prescription. The
special master held otherwise, and we are in accord with his
The acts of dominion by riparian proprietors are connected with
the building of wharves and piers that project into the stream. The
structures were built and maintained without protest on the part of
Delaware, and no doubt with her approval. There is nothing in their
presence to indicate an abandonment by the Sovereign of title to
the soil. By the law of waters of many of our states, a law which
in that respect has departed from the common law of England,
riparian proprietors have very commonly enjoyed the privilege of
gaining access to a stream by building wharves and piers, and this
though the title to the foreshore or the bed may have been vested
in the state. Yates v.
10 Wall. 497; Scranton v.
Wheeler, 179 U. S. 141
179 U. S.
-158; Shively v. Bowlby, supra
152 U. S. 24
152 U. S. 55
Town of Brookhaven v. Smith,
188 N.Y. 74, 80 N.E. 665;
United States v. Dern, 289 U. S. 352
289 U. S. 357
New Jersey in particular has been liberal in according such a
license (State v. Jersey City,
25 N.J.Law, 525), and so,
it seems, has Delaware (Harlan & Hollingsworth Co. v.
5 Del.Ch. 435; State v. Reybold,
484, 486), though, in Delaware, unlike New Jersey, title to the
foreshore is in the riparian proprietor. From acquiescence in these
improvements of the river front there can
Page 291 U. S. 376
be no legitimate inference that Delaware made over to New Jersey
the title to the stream up to the middle of the channel, or even
the soil under the piers. The privilege or license was accorded to
the owners individually, and even as to them was bounded by the
lines of their possession.
Apart from these acts of dominion by riparian proprietors, there
are other acts of dominion by New Jersey and its agents which are
relied upon now as indicative of ownership. They include the
service of process, civil and criminal, the assessment of
improvements for the purpose of taxation, [Footnote 4
] and the execution of deeds of conveyance to
the United States and others. Of all it is enough to say that they
are matched by many other acts, equally indicative of ownership and
dominion, by the Government of Delaware. The master summarizes the
situation with the statement that
"at no time has the Delaware ever abandoned its claim, dominion,
or jurisdiction over the Delaware River within said twelve-mile
circle, nor has it at any time acquiesced in the claim of the State
of New Jersey, thereto, except as modified by the . . . Compact of
The truth, indeed, is that, almost from the beginning of
statehood, Delaware and New Jersey have been engaged in a dispute
as to the boundary between them. There is no room in such
circumstances for the application of the principle that long
acquiescence may establish a boundary otherwise uncertain.
Vermont v. New Hampshire, 289 U.
, 289 U. S. 613
Indiana v. Kentucky, 136 U. S. 479
136 U. S.
Page 291 U. S. 377
136 U. S. 511
Massachusetts v. New York, supra,
p. 271 U. S. 95
Acquiescence is not compatible with a century of conflict. Only a
few instances will be mentioned among many that are available. In
1813, the Delaware Assembly ceded to the United States an island in
the Delaware river, east of the main channel and within the
twelve-mile circle, for the erection of a fort. A controversy arose
between the United States as holder of the Delaware title and Henry
Gale, who claimed under New Jersey. In 1836, Gale brought ejectment
in the United States Circuit Court against Beling, a tenant. Mr.
Justice Baldwin charged the jury that Penn had no title, but the
charge makes it plain that he had no knowledge of the letters
patent of 1683, and that they were not in evidence before him.
Later, an arbitration was agreed upon between Humphrey, who had
succeeded to the New Jersey title, and the Government of the United
States, represented by the Secretary of War. In that proceeding,
the award was in favor of the Government. The opinion by the
arbitrator, which was announced in January, 1849, is a careful and
able statement of the conflicting claims of right. See
case of Pea Patch Island, supra.
But the controversy would
not down. In 1877, New Jersey began a suit in this Court to
establish the disputed boundary. It slumbered for many years, and
finally, in April, 1907, was discontinued without prejudice. 205
U.S. 550. If a record such as this makes out a title by
acquiescence, one is somewhat at a loss to know how protest would
The complainant builds another argument upon a compact with the
defendant which was ratified by the parties in March, 1905, and
approved by Congress in January of that year. 34 Stat. c. 394, p.
858. We are told that, by this compact, the controversy was set at
rest and the claim of Delaware abandoned. It is an argument wholly
without force. The compact of 1905 provides for the enjoyment
Page 291 U. S. 378
of riparian rights, for concurrent jurisdiction in respect of
civil and criminal process, and for concurrent rights of fishery.
Beyond that it does not go.
"Nothing herein contained shall affect the territorial limits,
rights, or jurisdiction of either state of, in, or over the
Delaware River, or the ownership of the subaqueous soil thereof,
except as herein expressly set forth."
This opinion, though it has summarized many facts and arguments,
has perforce omitted many others, important in the view of counsel.
We content ourselves with the statement that they have not been
overlooked. Omission is the less serious in view of the able and
comprehensive report submitted by the special master. All that
matters most in this keen but amicable controversy is there set
forth at large, and there and in the supporting documents the
student of our local history can live it over when he will.
We uphold the title of Delaware to the land within the
Second. The boundary below the circle in the lower river and
Below the twelve-mile circle there is a stretch of water about
five miles long, not different in its physical characteristics from
the river above, and below this is another stretch of water
forty-five miles long where the river broadens into a bay.
The title to the soil of the lower river and the bay is
unaffected by any grant to the Duke of York or others. The letters
patent to James do not affect the ownership of the bed below the
circle. Up to the time when New Jersey and Delaware became
independent states, the title to the soil under the waters below
the circle was still in the Crown of England. When independence was
achieved, the precepts to be obeyed in the division of the waters
were those of international law. Handly's
Lessee v. Anthony,
5 Wheat. 374, 18 U. S.
Page 291 U. S. 379
International law today divides the river boundaries between
states by the middle of the main channel, when there is one, and
not by the geographical center, halfway between the banks. Iowa
v. Illinois, 147 U. S. 1
147 U. S. 7
Keokuk & Hamilton Bridge Co. v. Illinois, 175 U.
, 175 U. S. 631
Louisiana v. Mississippi, 202 U. S.
, 202 U. S. 49
Arkansas v. Tennessee, 246 U. S. 158
246 U. S.
-170; Arkansas v. Mississippi, 250 U. S.
; Minnesota v. Wisconsin, 252 U.
, 252 U. S. 282
It applies the same doctrine, now known as the doctrine of the
"thalweg," to estuaries and bays in which the dominant sailing
channel can be followed to the sea. Louisiana v. Mississippi,
supra, and compare
1 Halleck International Law (4th Ed.) p.
182; Moore, Digest International Law, vol. 1, p. 617; Matter of
Devoe Manufacturing Co., 108 U. S. 401
8 Fed.Cas. 984, Story, J.; The Open
18 Fed.Cas. 751, Ware, J. The "thalweg," or downway, is
the track taken by boats in their course down the stream, which is
that of the strongest current. 1 Westlake, International Law, p.
144; Orban, Etude de Droit Fluvial International, pp. 343, 343;
Kaeckenbeck, International Rivers, p. 176; Hyde, supra;
Fiore, International Law Codified, § 1051; Calvo, Dictionnaire de
Droit International. Delaware makes no denial that this is the
decisive test whenever the physical conditions define the track of
navigation. Her position comes to this -- that the bay is equally
navigable in all directions, or, at all events, was so navigable in
1783, and that, in the absence of a track of navigation, the
geographical center becomes the boundary not of choice, but of
necessity. As to the section of the river between the bay and the
circle, the same boundary is to be accepted, we are told, as a
matter of convenience.
The findings of the special master, well supported by the
evidence, overcome the argument thus drawn from physical
conditions. He finds that,
"as early as Fisher's Chart of Delaware Bay (1756), there has
been a well
Page 291 U. S. 380
defined channel of navigation up and down the Bay and River"
in which the current of water attains its maximum velocity;
"Delaware River and Bay, on account of shoals, are not equally
navigable in all directions, but the main ship channel must be
adhered to for safety in navigation;"
that the Bay, according to the testimony, "is only an expansion
of the lower part of the Delaware River," and that the fresh water
of the river does not spread out uniformly when it drains into the
bay, but maintains a continuing identity through its course into
"The record shows the existence of a well defined deep water
sailing channel in Delaware River and Bay constituting a necessary
truck of navigation, and the boundary between the states of
Delaware and New Jersey in said bay is the middle of said
The underlying rationale of the doctrine of the thalweg is one
of equality and justice. "A river," in the words of Holmes, J.
(New Jersey v. New York, 283 U. S. 336
283 U. S.
), "is more than an amenity; it is a treasure." If
the dividing line were to be placed in the centre of the stream,
rather than in the centre of the channel, the whole track of
navigation might be thrown within the territory of one state to the
exclusion of the other. Considerations such as these have less
importance for commonwealths or states united under a general
government than for states wholly independent. Per Field, J., in
Iowa v. Illinois, supra,
p. 147 U. S. 10
Nonetheless, the same test will be applied in the absence of usage
or convention pointing to another. Iowa v. Illinois,
Indeed, in 1783, the equal opportunity for use that was
derived from equal ownership may have had a practical importance
for the newly liberated colonies, still loosely knit together, such
as it would not have today. They were not taking any chances in
affairs of vital moment. Bays and rivers
Page 291 U. S. 381
are more than geometrical divisions. They are the arteries of
trade and travel.
The commentators tell us of times when the doctrine of the
thalweg was still unknown or undeveloped. Anciently, we are
informed, there was a principle of codominion by which boundary
streams to their entire width were held in common ownership by the
proprietors on either side. 1 Hyde, International Law, p. 243, §
137. Then, with Grotius and Vattel, came the notion of equality of
division (Nys, Droit International, vol. 1, pp. 425, 426; Hyde,
p. 244, citing Grotius, De Jure Belli et Pacis, and
Vattel, Law of Nations), though how this was to be attained was
still indefinite and uncertain, as the citations from Grotius and
Vattel show. [Footnote 5
Finally, about the end of the eighteenth century, the formula
acquired precision, the middle of the "stream" becoming the middle
of the "channel." There are statements by the commentators that the
term thalweg is to be traced to
Page 291 U. S. 382
the Congress of Rastadt in 1797 (Engelhardt, Du Regime
Conventionnel des Fleuves Internationaux, p. 72; Koch, Histoire des
Traites de Paix, vol. 5, p. 156), and the Treaty of Luneville in
1801. Hyde, supra,
pp. 245, 246; Kaeckenbeck,
International Rivers, p. 176; Adami, National Frontiers, translated
by Behrens, p. 17. If the term was then new, the notion of equality
was not. There are treaties before the Peace of Luneville in which
the boundary is described as the middle of the channel, though, it
seems, without thought that in this there was an innovation, or
that the meaning would have been different if the boundary had been
declared to follow the middle of the stream. Hyde, supra,
p. 246. Thus, in the Treaty of October 27, 1795, between the United
States and Spain (Article IV), it is
"agreed that the western boundary of the United States which
separates them from the Spanish colony of Louisiana is in the
middle of the channel or bed of the River Mississippi."
Miller, Treaties and other International Acts of the United
States of America, vol. 2, p. 321. [Footnote 6
] There are other treaties of the same period in
which the boundary is described as the middle of the river without
further definition, yet this Court has held that the phrase was
intended to be equivalent to the middle of the channel. Iowa v.
Illinois, Arkansas v. Tennessee, Arkansas v. Mississippi,
supra. See, e.g.,
the Treaty of 1763 between Great
Britain, France, and Spain, which calls for "a line drawn along the
middle of the River Mississippi." The truth plainly is that a rule
was in the making which was to give fixity and precision to what
had been indefinite and fluid.
Page 291 U. S. 383
There was still a margin of uncertainty within which conflicting
methods of division were contending for the mastery. Conceivably
that is true today in unusual situations of avulsion or erosion.
pp. 246, 247. Even so, there has emerged out
of the flux of an era of transition a working principle of division
adapted to the needs of the international community. Through
varying modes of speech, the law has been groping for a formula
that will achieve equality in substance, and not equality in name
only. Unless prescription or convention has intrenched another rule
(1 Westlake, International Law, p. 146), we are to utilize the
formula that will make equality prevail.
In 1783, when the Revolutionary War was over, Delaware and New
Jersey began with a clean slate. There was no treaty or convention
fixing the boundary between them. There was no possessory act nor
other act of dominion to give to the boundary in bay and river
below the circle a practical location, or to establish a
prescriptive right. In these circumstances, the capacity of the law
to develop and apply a formula consonant with justice and with the
political and social needs of the international legal system is not
lessened by the fact that, at the creation of the boundary, the
formula of the thalweg had only a germinal existence. The gap is
not so great that adjudication may not fill it. Lauterpacht, The
Function of Law in the International Community, pp. 52, 60, 70, 85,
100, 110, 111, 255, 404, 432. Treaties almost contemporaneous,
which were to be followed by a host of others, were declaratory of
a principle that was making its way into the legal order. Hall,
International Law (7th ed.) p. 7. International law, or the law
that governs between states, has at times, like the common law
within states, a twilight existence during which it is hardly
distinguishable from morality or justice, till at length the
imprimatur of a court attests its jural quality. Lauterpacht,
Page 291 U. S. 384
pp. 110, 255; Hall, supra,
pp. 7, 12,
15, 16; Jenks, The New Jurisprudence, pp. 11, 12. "The gradual
consolidation of opinions and habits" (Vinogradoff, Custom and
Right, p. 21) has been doing its quiet work. [Footnote 7
It is thus with the formula of the thalweg in its application to
the division between Delaware and New Jersey. We apply it to that
boundary, which goes back to the Peace of Paris, just as we applied
it to the boundary between Illinois and Iowa, which derives from a
treaty of 1763 (Iowa v. Illinois, Keokuk & Hamilton Bridge
Co. v. Illinois, Arkansas v. Tennessee, Arkansas v. Mississippi,
), or to that between Louisiana and Mississippi (
202 U. S. 202
1, 202 U. S. 16
which goes back to 1812, or between Minnesota and Wisconsin (
252 U. S. 252
273), going back to 1846. Indeed, counsel for Delaware make no
point that the result is to be affected by difference of time. In
requests submitted to the master, they have asked for a finding
"there was in 1783 no well defined channel in the Delaware Bay
constituting a necessary track of navigation, and the boundary line
between the states of Delaware and New Jersey in said bay is the
geographical center thereof."
The second branch of the request is dependent on the first. This
is clear enough upon its face, but is made doubly clear by the
exceptions to the report and by
Page 291 U. S. 385
the written and oral arguments. The line of division is to be
the center of the main channel unless the physical conditions are
of such a nature that a channel is unknown.
We have seen that even in the bay the physical conditions are
consistent with a track of navigation, which is also the course of
safety. Counsel do not argue that such a track is unknown in the
five miles of river between the bay and the circle. The argument
is, however, that the geographical center is to be made the
boundary in the river as a matter of convenience, since otherwise
there will be need for a sharp and sudden turn when the river meets
the bay. Inconvenient such a boundary would unquestionably be, but
the inconvenience is a reason for following the thalweg
consistently through the river and the bay alike instead of
abandoning it along a course where it can be followed without
trouble. If the boundary be taken to be the geographical center,
the result will be a crooked line, conforming to the indentations
and windings of the coast, but without relation to the needs of
shipping. Minnesota v. Wisconsin, supra.
If the boundary
be taken to be the thalweg, it will follow the course furrowed by
the vessels of the world.
The report will be confirmed, and a decree entered accordingly,
which, unless agreed to by the parties, may be settled upon
Within the twelve-mile circle, the river and the subaqueous soil
thereof up to low water mark on the easterly or New Jersey side
will be adjudged to belong to the state of Delaware, subject to the
Compact of 1905.
Below the twelve-mile circle, the true boundary between the
complainant and the defendant will be adjudged to be the middle of
the main ship channel in Delaware river and bay.
The costs of the suit will be equally divided
It is so ordered.
The following is the description:
"All that the Towne of Newcastle otherwise called Delaware and
the fort therein or thereunto belonging scituate lying and being
between Maryland and New Jersey in America And all that Tract of
land lying within the Compasse or Circle of twelve miles about the
said Towne Scituate lying and being upon the River of Delaware and
all Islands in the said River of Delaware and the said River and
Soyle thereof lying North of the Southermost part of the said
Circle of twelve miles about the said Towne And all that Tract of
Land upon Delaware River and Bay beginning twelve miles South from
the said Towne of Newcastle otherwise called Delaware and extending
South to Cape Lopen."
Powers of government and other proprietary and seignorial rights
were granted to the Duke along with ownership of the fee.
as to covenants of seisin, Doane
5 Gray 328, 66 Am.Dec. 369; Allen v.
5 Me. 227.
The Attorney General filed two answers in the cause, neither of
which asserted any beneficial title in the Crown, but merely prayed
that the court might "Preserve all such Rights Title and Interest
of in or to the Premises as shall appertain or belong to his
The complainant points for illustration to the construction of
important works for the use of the Dupont Co. 4,400 feet below low
water level, and taxation of these works like other property in New
Jersey. At that time, controversy was flagrant between the two
states. No inference of ownership can be drawn from dominion
exerted in such conditions.
Grotius has this to say (De Jure Belli et Pacis, Book 2, c. 3, §
"In case of any Doubt, the Jurisdictions on each Side reach to
the Middle of the River that runs betwixt them, yet it may be, and
in some Places it has actually happened, that the River wholly
belongs to one Party, either because the other Nation had not got
possession of the other Bank 'till later, and when their Neighbours
were already in Possession of the whole River, or else because
Matters were stipulated by some Treaty."
In an earlier section (§ 16, subdivision 2) he quotes a
statement of Taxitus that, at a certain point "the Rhine began . .
. to have a fixed Channel, which was proper to serve for a
Vattel (Law of Nations, supra) states the rule as follows:
"If, of two nations inhabiting the opposite banks of the river,
neither party can prove that they themselves, or those whose rights
they inherit, were the first settlers in those tracts, it is to be
supposed that both nations came there at the same time, since
neither of them can give any reason for claiming the preference,
and in this case, the dominion of each will extend to the middle of
the treaties collected in the Argument of the
United States before the International Boundary Commission in the
Chamizal Arbitration of 1910 between the United States and
Nys traces the concept of the thalweg to a period earlier than
the Treaty of Munster, 1648. Droit International v. 1, p. 426.
"International law, as well as domestic law, may not contain,
and generally does not contain, express rules decisive of
particular cases; but the function of jurisprudence is to resolve
the conflict of opposing rights and interests by applying, in
default of any specific provision of law, the corollaries of
general principles. . . . This is the method of jurisprudence; it
is the method by which law has been gradually evolved in every
country resulting in the definition and settlement of legal
relations as well between states as between private
The case of the Eastern Extension Australasia and China
Telegraph Co., Ltd., decided November 9, 1923, by the British
American Arbitral Tribunal under the Convention of August 18, 1910,
Nielsen's Report, pp. 75, 76, quoted by Lauterpacht,