Ejectment for one hundred acres of land, covered with water, in
Raritan Bay, in the Township of Perth Amboy, in the State of New
Jersey. The land claimed lies beneath the navigable waters of the
Raritan River and Bay, where the tide ebbs and flows, and the
principal right in dispute was the property in the oyster fisheries
in the public rivers and bays of East New Jersey. The claim was
made under the charters of Charles the Second to his brother the
Duke of York in 1664 and 1674 for the purpose of enabling him to
plant a colony on the continent of America. The land in controversy
is within the boundaries of the charters, and in the territory
which now forms the State of New Jersey. The territory in the
grant, by succeeding conveyances, became vested in the proprietors
of East Jersey, who conveyed the premises in controversy to the
defendant in error. The proprietors, by the terms of the grant to
them, were originally invested with all the rights of government
and property which were conferred on the Duke of York. Afterwards,
in 1702, the proprietors surrendered to the Crown all the powers of
government, retaining their rights of private property. The
defendant in error claimed the exclusive right to take oysters in
the place granted to him by virtue of his title under the
proprietors. The plaintiffs in error, as the grantees of the State
of New Jersey, under a law of that state passed in 1824 and a
supplement thereto, claimed the exclusive right to take oysters in
the same place. The point in dispute between the parties depended
upon the construction and legal effect of the letters patent to the
Duke of York, and of the deed of surrender, subsequently made by
the proprietors.
The right of the King of Great Britain to make this grant to the
Duke of York, with all of its prerogatives and powers of
government, cannot at this day be questioned.
The English possessions in America were not claimed by right of
conquest, but by right of discovery. According to the principles of
international law, as then understood by the civilized powers of
Europe, the Indian tribes in the new world were regarded as mere
temporary occupants of the soil, and the absolute rights of
property and dominion were held to belong to the European nations
by which any portion of the country was first discovered.
The grant to the Duke of York was not of lands won by the sword,
nor were the government and laws he was authorized to establish
intended for a conquered people.
The country granted by King Charles the Second to the Duke of
York, was held by the King in his public and regal character, as
the representative of the nation, and in trust for them. The
discoveries made by persons acting under the authority of the
government were for the benefit of the nation, and the Crown,
according to the principles of the British Constitution, was the
proper organ to dispose of the public domain. Cited,
Johnson v.
McIntosh, 8 Wheat. 595.
When the Revolution took place, the people of each state became
themselves sovereign, and in that character held the absolute right
to all their navigable waters and the soils under them for their
own common use, subject only to the rights since surrendered by the
Constitution to the general government. A grant, therefore,
made
Page 41 U. S. 368
by their authority must be tried and determined by different
principles from those which apply to grants of the British Crown,
where the title is held by a single individual in trust for the
whole nation.
The dominion and property in navigable waters and the lands
under them being held by the King as a public trust, the grant to
an individual of an exclusive fishery in any portion of it is so
much taken from the common fund entrusted to his care for the
common benefit. In such cases, whatever does not pass by the grant
remains in the Crown for the benefit and advantage of the whole
community. Grants of that description are therefore, construed
strictly, and it will not be presumed that the King intended to
part from any portion of the public domain unless clear and special
words are used to denote it.
The rivers, bays, and arms of the sea, and all the prerogative
rights within the limits of the charter of King Charles,
undoubtedly passed to the Duke of York and were intended to pass
except those saved in the letters patent.
The questions upon this charter are very different. It is not a
deed conveying private property, to be interpreted by the rules
applicable to cases of that description. It was an instrument upon
which was to be founded the institutions of a great political
community, and in that light it should be regarded and
construed.
The object in view of the letters patent appears on the face of
them. They were made for the purpose of enabling the Duke of York
to establish a colony upon the newly discovered continent, to be
governed as nearly as circumstances would permit according to the
laws and usages of England, and in which the Duke, his heirs, and
assigns, were to stand in the place of the King and administer the
government according to the principles of the British Constitution,
and the people who were to plant this colony and to form this
political body over which he was to rule were subjects of Great
Britain, accustomed to be governed according to its usages and
laws.
The land under the navigable waters within the limits of the
charter 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. The policy
of England since Magna Charta -- for the last six hundred years --
has been carefully preserved to secure the common right of piscary
for the benefit of the public. It would require plain language in
the letters patent to the Duke of York to persuade the Court that
the public and common right of fishing in navigable waters, which
has been so long and so carefully guarded in England, and which was
preserved in every other colony founded on the Atlantic borders,
was intended in this one instance to be taken away. There is
nothing in the charter that requires this conclusion.
The surrender by the proprietors to Queen Anne in 1702 was of
"all the powers, authorities, and privileges of and concerning the
government of the province," and the right in dispute in this case
was one of these privileges. No words are used for the purpose of
withholding from the Crown any of its ordinary and well known
prerogatives. The surrender, according to its evident object and
meaning, restored them in the same plight and condition in which
they originally came to the hands of the Duke of York. When the
people of New Jersey took possession of the reins of government and
took into their own hands the power of sovereignty, the
Page 41 U. S. 369
prerogatives and regalities which before belonged either to the
Crown or the Parliament, became immediately and rightfully vested
in the state.
Quaere. Whether on a question which depends not upon
the meaning of instruments formed by the people of a state or by
their authority, but upon the letters patent granted by the British
Crown, under which certain rights are claimed by the state, on one
hand, and by private individuals, on the other, if the Supreme
Court of the State of New Jersey had been of opinion that upon the
face of the charter the question was clearly in favor of the state,
and that the proprietors holding under the letters patent had been
deprived of their just rights by the erroneous judgment of the
state court, it could be maintained that the decision of the court
of the state on the construction of the letters patent bound the
Supreme Court of the United States. The decision of the state court
upon the letters patent by which the province was originally
granted by the King of Great Britain is unquestionably entitled to
great weight. If the words of the letters patent had been more
doubtful,
quaere if the decision of a state court on their
construction, made with great deliberation and research, ought to
be regarded as conclusive.
The defendant in error, the lessee of William C. H. Waddell,
instituted, to April term 1835, in the Circuit Court of the United
States for the District of New Jersey, an action of ejectment
against Merrit Martin and others for the recovery of certain land
covered with water, situated in the Raritan Bay, below high water
mark in the State of New Jersey. The defendants appeared to the
suit, and at April term 1837, the cause was tried by a jury, which
found a special verdict on which judgment was afterwards entered
for the plaintiff, from which judgment, the defendants prosecuted
this writ of error.
Page 41 U. S. 406
TANEY, CH.J., delivered the opinion of the Court.
This case was fully argued at the last term. But it was not then
decided,
Page 41 U. S. 407
because the important principles involved in it made it proper
that the case should be heard and determined by a full Court, and
as some of the Justices were not present at the former hearing, a
reargument was ordered. In pursuance of this order, it has been
again elaborately discussed by counsel, and having been carefully
considered by the Court, I am instructed to deliver its
opinion.
The questions before us arise upon an action of ejectment
instituted by the defendant in error, who was the plaintiff in the
court below, to recover one hundred acres of land, covered with
water, situated in the Township of Perth Amboy in the State of New
Jersey. At the trial in the circuit court, the jury found a special
verdict, setting forth, among other things, that the land claimed
lies beneath the navigable waters of the Raritan River and Bay,
where the tide ebbs and flows. And it appears that the principal
matter in dispute is the right to the oyster fishery in the public
rivers and bays of East New Jersey.
The plaintiff makes title under the charters granted by Charles
II to his brother, the Duke of York, in 1664 and 1674, for the
purpose of enabling him to plant a colony on this continent. The
last-mentioned grant is precisely similar to the former in every
respect, and was made for the purpose of removing doubts which had
then arisen as to the validity of the first. The boundaries in the
two charters are the same, and they embrace the territory which now
forms the State of New Jersey. The part of this territory known as
East New Jersey, afterwards, by sundry deeds and conveyances which
it is not necessary to enumerate, was transferred to twenty-four
persons, who were called the Proprietors of East New Jersey, who,
by the terms of the grants, were invested, within the portion of
the territory conveyed to them, with all the rights of property and
government which had been originally conferred on the Duke of York
by the letters patent of the King. Some serious difficulties,
however, took place in a short time between these proprietors and
the British authorities, and after some negotiations upon the
subject, they in 1702 surrendered to the Crown all the powers of
government, retaining their rights of private property.
The defendant in error claims the land covered with water,
mentioned in the declaration, by virtue of a survey made in
1834
Page 41 U. S. 408
under the authority of the proprietors and duly recorded in the
proper office. And if they were authorized to make this grant, he
is entitled to the premises as owner of the soil and has an
exclusive right to the fishery in question. The plaintiff in error
also claims an exclusive right to take oysters in the same place,
and derives his title under a law of the State of New Jersey passed
in 1824 and a supplement thereto passed in the same year. The point
in dispute between the parties therefore depends upon the
construction and legal effect of the letters patent to the Duke of
York and of the deed of surrender subsequently made by the
proprietors.
The letters patent to the duke included a very large territory
extending along the Atlantic coast from the River St. Croix to the
Delaware bay, and containing within it many navigable rivers, bays
and arms of the sea, and after granting the tract of country and
islands therein described,
"together with all the lands, islands, soils, rivers, harbors,
mines, minerals, quarries, woods, marshes, waters, lakes, fishings,
hawkings, huntings and fowlings, and all other royalties, profits,
commodities and hereditaments to the said several islands, lands
and premises belonging and appertaining, with their and every of
their appurtenances, and all the estate, right, title, interest,
benefit and advantage, claim and demand of the King, in the said
land and premises,"
the letters patent proceed to confer upon him, his heirs,
deputies, agents, commissioners and assigns the powers of
government, with a proviso that the statutes, ordinances, and
proceedings established by his authority should
"not be contrary to, but as nearly as might be agreeable to, the
laws, statutes and government of the realm of England, saving also
an appeal to the King, in all cases, from any judgment or sentence
which might be given in the colony, and authorizing the duke, his
heirs and assigns, to lead and transport out of any of the realms
of the King to the country granted, all such and so many of his
subjects, or strangers not prohibited, or under restraint who would
become the 'loving subjects' of the King, and live under his
allegiance, and who should willingly accompany the duke, his heirs
and assigns."
The right of the King to make this grant, with all of its
prerogatives and powers of government, cannot at this day be
questioned.
Page 41 U. S. 409
But in order to enable us to determine the nature and extent of
the interest which it conveyed to the duke, it is proper to inquire
into the character of the right claimed by the British Crown in the
country discovered by its subjects on this continent and the
principles upon which it was parceled out and granted.
The English possessions in America were not claimed by right of
conquest, but by right of discovery. For according to the
principles of international law as understood by the then civilized
powers of Europe, the Indian tribes in the new world were regarded
as mere temporary occupants of the soil, and the absolute rights of
property and dominion were held to belong to the European nation by
which any particular portion of the country was first discovered.
Whatever forbearance may have been sometimes practiced towards the
unfortunate aborigines, either from humanity or policy, yet the
territory they occupied was disposed of by the governments of
Europe at their pleasure, as if it had been found without
inhabitants. The grant to the Duke of York therefore was not of
lands won by the sword; nor were the government or laws he was
authorized to establish intended for a conquered people.
The country mentioned in the letters patent was held by the King
in his public and regal character, as the representative of the
nation and in trust for them. The discoveries made by persons
acting under the authority of the government were for the benefit
of the nation, and the Crown, according to the principles of the
British constitution, was the proper organ to dispose of the public
domains, and upon these principles rest the various charters and
grants of territory made on this continent. The doctrine upon this
subject is clearly stated in the case of
Johnson v.
McIntosh, 8 Wheat. 595. In that case, the Court,
after stating it to be a principle of universal law that an
uninhabited country, if discovered by a number of individuals who
owe no allegiance to any government, becomes the property of the
discoverers, proceeded to say that
"if the discovery be made and possession taken under the
authority of an existing government which is acknowledged by the
emigrants, it is supposed to be equally well settled that the
discovery is made for the benefit of the whole nation, and the
vacant soil is to be disposed of by that organ of the government
which has the constitutional power to dispose of the
Page 41 U. S. 410
national domains; by that organ in which all territory is vested
by law. According to the theory of the British constitution, all
vacant lands are vested in the Crown as representing the nation,
and the exclusive power to grant them is admitted to reside in the
Crown as a branch of the royal prerogative. It has been already
shown that this principle was as fully recognized in America as in
the Island of Great Britain."
This being the principle upon which the charter in question was
founded, by what rules ought it to be construed? We do not propose
to meddle with the point which was very much discussed at the bar
as to the power of the King since Magna Charta to grant to a
subject a portion of the soil covered by the navigable waters of
the Kingdom, so as to give him an immediate and exclusive right of
fishery, either for shellfish or floating fish, within the limits
of his grant. The question is not free from doubt, and the
authorities referred to in the English books cannot perhaps be
altogether reconciled. But from the opinions expressed by the
justices of the Court of King's Bench in the case of
Blundell
v. Catterall, 5 Barn. & Ald. 287, 294, 304, 309, and in
the case of
Duke of Somerset v. Fogwell, 5 Barn. &
Cres. 883-884, the question must be regarded as settled in England
against the right of the King, since Magna Charta, to make such a
grant. The point does not, however, arise in this case unless it
shall first be decided that in the grant to the Duke of York, the
King intended to sever the bottoms of the navigable waters from the
prerogative powers of government conferred by the same charter and
to convert them into mere franchises in the hands of a subject, to
be held and used as his private property. And we the more willingly
forbear to express an opinion on this subject because it has ceased
to be a matter of much interest in the United States. For when the
revolution took place, the people of each state became themselves
sovereign, and in that character hold the absolute right to all
their navigable waters and the soils under them for their own
common use, subject only to the rights since surrendered by the
Constitution to the general government. A grant made by their
authority must therefore manifestly be tried and determined by
different principles from those which apply to grants of the
British Crown
Page 41 U. S. 411
when the title is held by a single individual in trust for the
whole nation.
Neither is it necessary to examine the many cases which have
been cited in the argument on both sides, to show the degree of
strictness with which grants of the King are to be construed. The
decisions and authorities referred to apply more properly to a
grant of some prerogative right to an individual, to be held by him
as a franchise, and which is intended to become private property in
his hands. The dominion and property in navigable waters, and in
the lands under them, being held by the King as a public trust, the
grant to an individual of an exclusive fishery in any portion of
it, is so much taken from the common fund entrusted to his care for
the common benefit. In such cases, whatever does not pass by the
grant, still remains in the Crown, for the benefit and advantage of
the whole community. Grants of that description are therefore
construed strictly, and it will not be presumed that he intended to
part from any portion of the public domain, unless clear and
especial words are used to denote it. But in the case before us,
the rivers, bays and arms of the sea, and all prerogative rights,
within the limits of the charter, undoubtedly passed to the Duke of
York, and were intended to pass, except those saved in the letters
patent. The words used evidently show this intention, and there is
no room, therefore, for the application of the rule above
mentioned.
The questions upon this charter are very different ones. They
are whether the dominion and propriety in the navigable waters and
in the soils under them passed as a part of the prerogative rights
annexed to the political powers conferred on the duke? Whether, in
his hands, they were intended to be a trust for the common use of
the new community about to be established or private property to be
parceled out and sold to individuals for his own benefit? And in
deciding a question like this, we must not look merely to the
strict technical meaning of the words of the letters patent. The
laws and institutions of England, the history of the times, the
object of the charter, the contemporaneous construction given to
it, and the usages under it for the century and more which has
since elapsed are all entitled to consideration and weight. It is
not a deed conveying private property, to be interpreted by the
rules applicable to cases of that description.
Page 41 U. S. 412
It was an instrument upon which was to be founded the
institutions of a great political community, and in that light it
should be regarded and construed.
Taking this rule for our guide, we can entertain no doubt as to
the true construction of these letters patent. The object in view
appears upon the face of them. They were made for the purpose of
enabling the Duke of York to establish a colony upon the newly
discovered continent, to be governed, as nearly as circumstances
would permit, according to the laws and usages of England, and in
which the duke, his heirs and assigns, were to stand in the place
of the King, and administer the government according to the
principles of the British Constitution. And the people who were to
plant this colony, and to form the political body over which he was
to rule, were subjects of Great Britain, accustomed to be governed
according to its usages and laws.
It is said by Hale, in his treatise de Jure Maris, Harg. Law
Tracts 11, when speaking of the navigable waters, and the sea on
the coasts within the jurisdiction of the British Crown,
"That although the King is the owner of this great coast, and as
a consequent of his propriety, hath the primary right of fishing in
the sea, and creeks and arms thereof, yet the common people of
England have regularly a liberty of fishing in the sea or creeks or
arms thereof as a public common of piscary, and may not, without
injury to their right, be restrained of it unless in such places,
creeks or navigable rivers, where either the King or some
particular subject hath gained a propriety exclusive of that common
liberty."
The principle here stated by Hale, as to "the public common of
piscary" belonging to the common people of England, is not
questioned by any English writer upon that subject. The point upon
which different opinions have been expressed is whether, since
Magna Charta, "either the King or any particular subject can gain a
propriety exclusive of the common liberty." For undoubtedly, rights
of fishery, exclusive of the common liberty, are at this day held
and enjoyed by private individuals under ancient grants. But the
existence of a doubt as to the right of the King to make such a
grant, after Magna Charta, would of itself show how fixed has been
the policy of that government on this subject for the last six
hundred years, and how carefully it
Page 41 U. S. 413
has preserved this common right for the benefit of the public.
And there is nothing in the charter before us indicating that a
different and opposite line of policy was designed to be adopted in
that colony. On the contrary, after enumerating in the clause
herein before quoted, some of the prerogative rights annexed to the
Crown, but not all of them, general words are used, conveying "all
the estate, right, title, interest, benefit, advantage, claim and
demand" of the King, in the lands and premises before granted. The
estate and rights of the King passed to the duke in the same
condition in which they had been held by the Crown, and upon the
same trusts. Whatever was held by the King, as a prerogative right,
passed to the duke in the same character. And if the word "soils"
be an appropriate word to pass lands covered with navigable water,
as contended for on the part of the defendant in error, it is
associated in the letters patent with "other royalties," and
conveyed as such. No words are used for the purpose of separating
them from the
jura regalia and converting them into
private property, to be held and enjoyed by the duke apart from and
independent of the political character with which he was clothed by
the same instrument.
Upon a different construction it would have been impossible for
him to have complied with the conditions of the grant. For it was
expressly enjoined upon him as a duty in the government he was
about to establish, to make it as near as might be agreeable in
their new circumstances to the laws and statutes of England, and
how could this be done if in the charter itself this high
prerogative trust was severed from the regal authority? If the
shores and rivers and bays and arms of the sea and the land under
them, instead of being held as a public trust for the benefit of
the whole community, to be freely used by all for navigation and
fishery, as well for shellfish as floating fish, had been converted
by the charter itself into private property, to be parceled out and
sold by the duke for his own individual emolument? There is
nothing, we think, in the terms of the letters patent nor in the
purposes for which it was granted that would justify this
construction. And in the judgment of the court, 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
Page 41 U. S. 414
waters of England, and the soils under them, are held by the
Crown.
This opinion is confirmed by referring to similar grants for
other tracts of country upon this continent, made about the same
period of time. Various other charters for large territories on the
Atlantic cost were granted by different monarchs of the Stuart
dynasty to different persons for the purposes of settlement and
colonization, in which the powers of government were united with
the grant of territory. Some of these charters very nearly
resembled in every respect the one now in controversy, and none of
them, it is believed, differed materially from it in the terms in
which the bays, rivers and arms of the sea and the soils under them
were conveyed to the grantees. Yet in no one of these colonies has
the soil under its navigable waters and the rights of fishery for
shellfish or floating fish been severed by the letters patent from
the powers of government. In all of them, from the time of the
settlement to the present day, the previous habits and usages of
the colonists have been respected, and they have been accustomed to
enjoy in common the benefits and advantages of the navigable waters
for the same purposes and to the same extent that they have been
used and enjoyed for centuries in England. Indeed it could not well
have been otherwise, for the men who first formed the English
settlements could not have been expected to encounter the many
hardships that unavoidably attended their emigration to the new
world, and to people the banks of its bays and rivers, if the land
under the water at their very doors was liable to immediate
appropriation by another as private property, and the settler upon
the fast land thereby excluded from its enjoyment and unable to
take a shellfish from its bottom or fasten there a stake or even
bathe in its waters without becoming a trespasser upon the rights
of another. The usage in New Jersey has in this respect, from its
original settlement, conformed to the practice of the other
chartered colonies. And it would require very plain language in
these letters patent to persuade us that the public and common
right of fishery in navigable waters, which has been so long and so
carefully guarded in England and which was preserved in every other
colony founded on the Atlantic borders was intended in this one
instance to be taken away. But we see nothing in the charter to
require this conclusion.
Page 41 U. S. 415
The same principles upon which the court have decided upon the
construction of the letters patent to the Duke of York, apply with
equal force to the surrender afterwards made by the twenty-four
proprietors. It appears by the special verdict, that all the
interest of the duke in East New Jersey, including the royalties
and powers of government, were conveyed to these proprietors, as
fully and amply, and in the same condition, as they had been
granted to him, and they had the same dominion and propriety in the
bays, and rivers and arms of the sea, and the soil under them, and
in the rights of fishery, that had belonged to him under the
original charter. In their hands, therefore, as well as in those of
the duke, this dominion and propriety was an incident to the regal
authority, and was held by them as a prerogative right, associated
with the powers of government. And being thus entitled, they, in
1702, surrendered and yielded up to Anne, Queen of England, and to
her heirs and successors,
"all the powers and authorities in the said letters patent
granted, to correct, punish, pardon, govern and rule all or any of
her majesty's subjects or others who then were inhabitants or
thereafter might adventure into or inhabit within the said Province
of East New Jersey, and also to nominate, make, constitute, ordain
and confirm any laws, orders, ordinances, directions and
instruments for those purposes, or any of them, and to nominate,
constitute or appoint, revoke, discharge, change or alter any
government or governors, officers or ministers, which were or
should be appointed within the said province, and to make, ordain
and establish any orders, laws, directions, instruments, forms or
ceremonies of government and magistracy, for or concerning the
same, or on the sea, in going to or coming from the same, or to put
in execution, or abrogate, revoke or change such as were already
made, for or concerning such government, or any of them, and also
all the powers and authorities by the said letters patent to use
and exercise martial law in the said Province of East New Jersey,
and to admit any person or persons to trade or traffic there, and
of encountering, repelling and resisting by force of arms, any
person or persons attempting to inhabit there without the license
of them, the said proprietors, their heirs and assigns, and all
other the powers, authorities and privileges of and concerning the
province last aforesaid, or the inhabitants
Page 41 U. S. 416
thereof, which were granted, or mentioned to be granted, by the
said several above-recited letters patent, or either of them,"
which said surrender was afterwards accepted by the Queen.
We give the words of the surrender as found by the special
verdict, and they are broad enough to cover the
jura
regalia which belonged to the proprietors. They yield up "all
the powers, authorities and privileges of and concerning the
government of the province," and the right in dispute was one of
these authorities and privileges. No words are used for the purpose
of withholding from the Crown any of its ordinary and well known
prerogatives. The surrender, according to its evident object and
meaning, restored them in the same plight and condition in which
they originally came to the hands of the Duke of York. Whatever he
held as a royal or prerogative right was restored, with the
political power to which it was incident. And if the great right of
dominion and ownership in the rivers, bays, and arms of the sea and
the soils under them were to have been severed from the sovereignty
and withheld from the Crown; if the right of common fishery for the
common people stated by Hale in the passage before quoted was
intended to be withdrawn, the design to make this important change
in this particular territory would have been clearly indicated by
appropriate terms, and would not have been left for inference from
ambiguous language.
The negotiations previous to the surrender have been referred to
in order to influence the construction of the deed. But whatever
propositions may have been made or opinions expressed before the
execution of that instrument, the deed itself must be regarded as
the final agreement between the parties, and that deed, by its
plain words, reestablished the authority of the Crown, with all of
its customary powers and privileges. And when the people of New
Jersey took possession of the reins of government and took into
their own hands the powers of sovereignty, the prerogatives and
regalities which before belonged either to the Crown or the
Parliament became immediately and rightfully vested in the
state.
This construction of the surrender is evidently the same with
that which it received from all the parties interested at the time
it was executed. For it appears by the history of New Jersey
Page 41 U. S. 417
as gathered from the acts, documents and proceedings of the
public authorities that the Crown and the provincial government
established by its authority always afterwards in this territory
exercised the same prerogative powers that the King was accustomed
to exercise in his English dominions. And as concerns the
particular dominion and propriety now in question, the colonial
government from time to time authorized the construction of bridges
with abutments on the soil covered by navigable waters, established
forts, authorized the erection of wharves, and as early as 1719
passed a law for the preservation of the oyster fishery in its
waters. The public usages also, in relation to the fisheries,
continued to be the same. And from 1702, when the surrender was
made, until a very recent date, the people of New Jersey have
exercised and enjoyed the rights of fishery for shellfish and
floating fish as a common and undoubted right without opposition or
remonstrance from the proprietors. The few unimportant grants made
by them at different times, running into the navigable waters,
which were produced in the argument do not appear to have been
recognized as valid by the provincial or state authorities nor to
have been sanctioned by the courts. And the right now claimed was
not seriously asserted on their part before the case of
Arnold
v. Mundy, reported in 1 Halst. 1, which suit was not
instituted until the year 1818; and upon that occasion, the supreme
court of the state held that the claim made by the proprietors was
without foundation.
The effect of this decision by the state court has been a good
deal discussed at the bar. It is insisted by the plaintiffs in
error that as the matter in dispute is local in its character and
the controversy concerns only fixed property within the limits of
New Jersey, the decision of her tribunals ought to settle the
construction of the charter, and that the courts of the United
States are bound to follow it. It may, however, be doubted whether
this case falls within the rule in relation to the judgments of
state courts when expounding their own Constitution and laws.
The question here depends not upon the meaning of instruments
framed by the people of New Jersey or by their authority, but upon
charters granted by the British Crown, under which certain rights
are claimed by the state, on the one hand, and by
Page 41 U. S. 418
private individuals on the other. And if this Court had been of
opinion that upon the face of these letters patent the question was
clearly against the state, and that the proprietors had been
derived at their just rights by the erroneous judgment of the state
court, it would perhaps be difficult to maintain that this
decision, of itself, bound the conscience of this Court. It is,
however, unquestionably entitled to great weight. It confirms the
construction uniformly placed on these charters and instruments by
the other public authorities and in which the proprietors had so
long acquiesced. Public acts and laws both of the colonial and
state governments have been founded upon this interpretation and
extensive and valuable improvements made under it. In the case
referred to, the sanction of the judicial authority of the state is
given to it. And if the words of the letters patent had been far
more doubtful than they are, this decision, made upon such a
question with great deliberation and research, ought in our
judgment to be regarded as conclusive.
Independently, however, of this decision of the Supreme Court of
New Jersey, we are of opinion that the proprietors are not entitled
to the rights in question, and the judgment of the circuit court
must therefore be
Reversed.
THOMPSON, JUSTICE, dissenting.
The premises in question in this case are a mud flat covered by
the waters of the Bay of Amboy in the State of New Jersey. The
cause comes up on facts found by a special verdict in the court
below, by which it appears that the lessors of the plaintiff
produced upon the trial a regular deduction of title from Charles
II down to themselves, and the premises in question are admitted to
be within the grant. And the general question in the case is
whether this mud flat passed under the grant, and in virtue of the
several conveyances set out in the special verdict became vested in
the proprietors of New Jersey as private property. The opinion of a
majority of the Court is against this right, in which opinion,
however, I cannot concur, and shall briefly assign the reasons upon
which my opinion rests.
Some objections have been made to the right of maintaining
Page 41 U. S. 419
an action of ejectment growing out of the nature of the subject
matter in controversy. There can be no grounds for such an
objection. The subject in question is the right to land, and not to
water. It is the ordinary case of an ejectment for land covered
with water, and the premises are so set out and described in the
declaration, and the special verdict finds that the lessors of the
plaintiff, under the title by them shown, entered into the
tenements with the appurtenances in the declaration mentioned, and
were thereof possessed until the defendant afterwards entered upon
and ejected, expelled, and removed the plaintiff from such
possession. So that the subject matter in controversy is found not
only to be susceptible of actual possession, but to have been so
possessed and enjoyed.
A majority of the Court seems to have adopted the doctrine of
Arnold v. Mundy, decided in the Supreme Court of New
Jersey, 1 Halst. 1, in which it is held that navigable rivers,
where the tide ebbs and flows, and the ports, bays and coasts of
the sea, including both the waters and the land under the water,
are common to the people of New Jersey, and that, under the grant
of Charles II to the Duke of York, all the rights, which they call
royalties, passed to the duke, as governor of the province,
exercising the royal authority, and not as the proprietor of the
soil, but that he held them as trustee for the benefit of all
settlers in the province and that the proprietors did not acquire
any such right to the soil that they would grant a several fishery,
and that no person who plants a bed of oysters in a navigable river
has such property in the oysters as to enable him to maintain an
action of trespass against anyone who encroaches upon it. And this
rests on the broad proposition that the title to the land under the
water did not and could not pass to the Duke of York as private
property. To maintain this proposition it must rest on the ground
that the land under the water of a navigable river is not the
subject of a private right, for if it can be conveyed by words, the
grant in the present case is broad enough to pass the title to the
land in question.
It is worthy of observation that the course of New Jersey in
relation to this claim is hardly consistent with her pretensions.
In the case of
Arnold v. Mundy, the Chief Justice said,
upon the revolution, all these rights became vested in the people
of New
Page 41 U. S. 420
Jersey as the sovereign of the country and are now in their
hands, and the legislature may regulate them &c. But the power
which may be exercised by the sovereignty of the state is nothing
more than what is called the
jus regium, the right of
regulating, improving and securing the same for the benefit of
every individual citizen. The sovereign power itself therefore
cannot, consistently with the principles of the law of nature and
the constitution of a well ordered society, make a direct and
absolute grant of the waters of the state, divesting all the
citizens of a common right. It would be a grievance which never
could be long borne by a free people.
If this be the received doctrine in New Jersey in relation to
the navigable waters of that state and the oyster fisheries, they
remain common to all the citizens of New Jersey, and never can be
appropriated to any private or individual use, and all laws having
such object in view must be utterly null and void, and it is
difficult to perceive how the law of New Jersey, found by the
special verdict, can be sustained. This act declares that the shore
and land covered with water may be set apart and laid out by
commissioners for the purpose of growing and planting oysters
thereon, reserving such parts as might be judged necessary for
public accommodation, provided that nothing in the said act
contained should authorize the commissioners to present any
obstruction or cause any injury to the navigation of the said sound
and river or to any fishery or fisheries therein. Here the
legislature treats these flats in all respects as land, to be used
for planting and growing oysters, and for the use of which a
revenue is derived to the state by the payment of a rent reserved.
It is not the use of the water for any public purpose that this law
contemplates, but an exclusive right to the use of the land under
the water, in contradistinction to the use of the water for
purposes of navigation, and that this law is so to be considered is
manifest from the proviso that no obstruction should be made to the
fishery or fisheries therein; and here is a manifest distinction
made between a fishery and an oyster bed. For if it had been
understood that the fisheries included oysteries, the enacting
clause and the proviso would present a glaring inconsistency. The
enacting clause authorizes the setting apart the oystery to
exclusive private use, when, by the proviso, no obstruction is
to
Page 41 U. S. 421
be made to the fisheries. So that if an oystery is a fishery,
the owner is deprived of the exclusive use of it. The act seems to
be founded upon a distinction clearly held up, in many cases to be
found in the books, between an oystery and a fishery, in the common
use of the term. The one applying to the use of land under the
water, which is peculiarly adapted to the growing of oysters, and
to be used for that purpose in the cultivation of oysters as other
lands are used for the purpose to which they are particularly
adapted, whereas a fishery in common acceptation has reference to
the use of the water for floating fish, and this is a very obvious
and natural distinction.
That the title to land under a navigable stream of water must be
held subject to certain public rights cannot be denied. But the
question still remains what are such public rights? Navigation,
passing, and repassing are certainly among those public rights. And
should it be admitted that the right to fish for floating fish was
included in this public right, it would not decide the present
question. The premises in dispute are a mud flat, and the use to
which it has been and is claimed to be applied is the growing and
planting of oysters. It is the use of land, and not of water, that
is in question. For the purpose of navigation, the water is
considered as a public highway, common to all, like a public
highway on land. If land over which a public highway passes is
conveyed, the soil passes subject to that use, and the purchaser
may maintain an action for an injury to this soil not connected
with the use, and whenever it ceases to be used as a public
highway, the exclusive right of the owner attaches; so with respect
to the land under water, the public use for passing and repassing,
and all the purposes for which a public way may be used, are open
to the public, the owner nevertheless retaining all the rights and
benefits of the soil that may not impede or interfere with the use
as a public highway. Should a coal mine, for instance, be
discovered under such highway, it would belong to the owner of the
soil and might be used for his benefit, preserving unimpaired the
public highway. So with respect to an oyster bed, which is local
and is attached to the soil. It is not the water that is over the
beds that is claimed -- that is common and may be used by the
public -- but the use of the soil by the owner which is consistent
with the use of the water by the public
Page 41 U. S. 422
is reserved to the owner. Suppose this mud flat should, by the
wash from the shore or the receding of the water or in any other
manner be filled up and become solid ground (which is by no means
an extravagant supposition), would not the proprietors be
considered the owners of this land and have the exclusive right to
the use and enjoyment of it if they had in no way parted with such
right? This cannot be denied if the soil passed to and became
vested in the proprietors under the grant to them. It surely would
not be claimed by the state, it being no longer susceptible of
public use.
The case of
Brown v. Kennedy, 5 Har. & Johns. 195,
is fully to this point. The question there related to the right to
the soil in the bed of a navigable river which had been diverted to
a canal, and it was held that the property in the soil covered by
the water was vested in the lord proprietary by the charter of
Maryland; that by the common law, the right was in the King, and he
might dispose of it
sub modo; that the property in the
soil may be granted, subject to the
jus publicum; that by
the terms of the charter to Lord Baltimore, they clearly passed the
property in the soil covered by any waters, within the limits of
the charter; and if the bed of the river had not been conveyed
away, it would have remained in the proprietary, and if an island
had sprung up, it would have been his, or if the bed of the river
had been left bare, it would be his, as the
jus publicum
would be destroyed.
The rules and principles laid down by Lord Hale, as we find them
in Hargrave's Law Tracts, are admitted as containing the correct
common law doctrine as to the rights and power of the King over the
arms of the sea and navigable streams of water. We there find it
laid down that the King of England hath a double right in the sea,
viz., a right of jurisdiction, which he ordinarily
exercises by his admiral, and a right of propriety or ownership.
Harg. 10. The King's right of propriety or ownership in the sea and
soil thereof is evinced principally in these things that follow.
The right of fishing in the sea and the creeks and arms thereof is
originally lodged in the Crown, as the right of depasturing is
originally lodged in the owner of the coast whereof he is lord, or
as the right of fishing belongs to him that is the owner of a
private or inland river. But though the King is the owner of
this
Page 41 U. S. 423
great coast, and as a consequence of his propriety hath the
primary right of fishing in the sea and the creeks and arms
thereof, yet the common people of England have regularly a liberty
of fishing in the sea or creeks or arms thereof as a public common
of piscary, and may not without injury to their right be restrained
of it unless in such places, creeks or navigable rivers, where
either the King or some particular subject hath gained a propriety
exclusive of that common liberty (p. 11). In many ports and arms of
the sea there is an exclusion of public fishing by prescription or
custom (p. 12), although the King hath
prima facie this
right in the arms and creeks of the sea,
communi jure, and
in common presumption; yet a subject may have such a right in two
ways.
1. By the King's charter or grant, and this is without question.
The King may grant fishing within some known bounds, though within
the main sea, and may grant the water and soil of a navigable river
(p. 17), and such a grant (when apt words are used) will pass the
soil itself, and if there shall be a recess of the sea, leaving a
quantity of land, it will belong to the grantee.
2. The second mode is by custom or prescription. There may be
the right of fishing without having the soil, or by reason of
owning the soil, or a local fishery that arises from ownership of
the soil (p. 18). That,
de communi jure, the right of the
arms of the sea belongs to the King; yet a subject may have a
separate right of fishing, exclusive of the King and of the common
right of the subject (p. 20). But this interest or right of the
subject must be so used as not to occasion a common annoyance to
the passage of the ships or boats, for that is prohibited by the
common law as well as by several statutes. For the
jus
privatum that is acquired to the subject, either by patent or
prescription, must not prejudice the
jus publicum
wherewith public rivers or arms of the sea are affected for public
use (p. 22) -- as the soil of a highway, in which, though in point
of property may be a private man's freehold, yet it is charged with
a public interest of the people, which may not be prejudiced or
damnified (p. 36).
These rules, as laid down by Lord Hale, have always been
considered as settling the law upon the subjects so which they
apply, and have been understood by all elementary writers as
governing rules and have been recognized by the courts of
justice
Page 41 U. S. 424
as controlling doctrines. They establish that by the common law,
the King is the owner of all navigable rivers, bays and shores.
That he owns them in full dominion and propriety, and has full
power and authority to convey the same; that he may grant a several
fishery in a navigable stream, and the common law has annexed only
two limitations upon this power: that these waters shall remain
highways for passage and navigation and that whilst they remain
ungranted, there is a common right of fishery in them; but subject
to these limitations, the King has as full power to convey as an
individual has to convey the land of which he is the owner.
I see nothing to countenance the distinctions set up, that the
King holds these subjects as trustee any more than does the dry
land, or that he cannot convey them discharged of the right of
common fishery. There is no reason for such distinction with
respect to land under water. The true rule on the subject is that
prima facie a fishery in a navigable river is common, and
he who sets up an exclusive right must show title either by grant
or prescription. This is the doctrine of the King's Bench in
England in the case in 4 Burr. 2163. It was an action of trespass
for breaking and entering the plaintiff's close, called the River
Severn, and the defense set up was that it was a navigable river,
and an arm of the sea, wherein every subject has a right to fish,
and that an exclusive right cannot be maintained by a subject, in a
river that is an arm of the sea, but that the general right of
fishing is common to all. But this doctrine was not recognized by
the court. Lord Mansfield said, the rule of law is uniform. In
rivers not navigable, the proprietors of the land have the right of
fishing on their respective sides, and it generally extends
ad
filum medium aquae. But in navigable rivers, the proprietors
of the land on each side have it not; the fishery is common; it is
prima facie in the King, and is public. If anyone claims
it exclusively, he must show a right. If he can show a right by
prescription, he may then exercise an exclusive right, though the
presumption is against him unless he can prove such a prescriptive
right. Here it is claimed and found. It is therefore consistent
with all the cases that he may have an exclusive privilege of
fishing, although it is an arm of the sea; such a right shall not
be presumed, but the contrary,
prima facie; but it is
capable of being proved, and must
Page 41 U. S. 425
have been so in the present case. And Yates, Justice, says, he
was concerned in such a case, but the right was not proved, and so
found common, but such a right may be proved. It may be
appropriated by prescription, and he refers to the royal salmon
fishery in the River Banne, in Sir John Davies' reports, and says
it is agreeable to this, and that it is a very good case. That it
appears by it that the Crown may grant a several fishery in a
navigable river where the sea flows and reflows, or in the arm of
the sea. And he refers to the case in 1 Mod. 105, where, he
observes, Lord Hale says truly, if anyone will appropriate a
privilege to himself, the proof lieth on his side. Now if it may be
granted, it may be prescribed for, for a prescription implies a
grant.
In the argument of this case, the counsel on the part of the
defendant referred to the case of
Warren v. Matthews, as
reported in 6 Mod. 73, where it is said every subject of common
right may fish with lawful nets &c., in a navigable river, as
well as in the sea, and the King's grant cannot bar them thereof,
and this case has been much relied on in the argument of the case
now before the Court. But this report of the case in 6 Mod. 73 is
clearly a mistake. It is the only case to be found in which the
broad proposition here stated is recognized, that the King's grant
cannot bar the subject of the common right of fishing. And in the
report of the same case, 1 Salk. 357, the case as stated is that
one claimed
solam piscariam in the river Ex, by a grant
from the Crown. And Nott, Chief Justice, said, the subject has a
right to fish in all navigable rivers, as he has to fish in the
sea, and a
quo warranto ought to be granted to try the
title of this grantee, and the validity of his grant. Lord Nott
here, no doubt, meant to speak of the
prima facie right of
the subject. For if he intended to say that no such exclusive right
could be given by grant from the King, it would be absurd to issue
a
quo warranto to try the title and validity of the grant,
if by no possibility a valid grant could be made. At all events, it
is very certain that the King's Bench, in the case of
Carter v.
Murcot, did not recognize the doctrine of
Warren v.
Matthews, as reported in 6 Mod. 73. And under these
circumstances, it is entitled to no weight in the decision of the
case now before the court.
It is unnecessary to refer to the numerous cases in the English
books on this subject; the doctrine as laid down in the case of
Page 41 U. S. 426
Carter v. Murcot is universally recognized as the
settled law on the subject, and is fully adopted and sanctioned by
the courts of this country. Numerous cases of this description have
come before the courts in the State of New York, and the principles
and rules as laid down in the case of
Carter v. Murcot
fully recognized and adopted. In the case of
James v.
Gould, 6 Cow. 376, the court in referring to that case, place
the decision upon it, and say, "this is the acknowledged law of
Great Britain and of this state," and cases are referred to showing
such to be the settled law.
In the case of
Johnson v.
McIntosh, 8 Wheat. 595, this Court said that
according to the theory of the British constitution, all vacant
lands are vested in the Crown, as representing the nation, and the
exclusive power to grant them is admitted to reside in the Crown as
a branch of the royal prerogative. And this principle is as fully
recognized in America as in Great Britain; all the lands we hold
were originally granted by the Crown; our whole country has been
granted, and the grants purport to convey the soil as well as the
right of dominion to the grantee. Here the absolute ownership is
recognized as being in the Crown, and to be granted by the Crown,
as the source of all title, and this extends as well to land
covered by water as to the dry land; otherwise no title could be
acquired to land under water. There is in this case no intimation
that any of the lands are vested in the Crown as trustee, but as
absolute owner. If lands under water can be granted and are
actually granted, the grantees must, of course, acquire all the
right to the use and enjoyment of such lands of which they are
susceptible as private property, as much so as the dry land, and
there can be no grounds for any implied reservation of ungranted
rights in the one case more than in the other, and the grant of the
soil carries with it, of course, all the uses to which it may be
applied, among which is an exclusive or several fishery. All grants
of land, whether dry land or covered with water, are for great
public purposes, subject to the control of the sovereign power of
the country. So the grant of the soil under water, which carries
with it a several fishery, is subject to the use of the water for
the public purposes of navigation, and passing and repassing, but
it is nowhere laid down as the law of the land that a several
fishery is a part of the
jus publicum and open to the use
of the public. So long as the
Page 41 U. S. 427
fishery remains ungranted, it is common and may be used by the
public; but when granted to individuals, it becomes private
property as much as any other subject whatever, and I think the law
is too well settled that a fishery may be the subject of a private
grant to be at this day drawn in question.
If, then, according to the principles of the common law, the
King had the power to grant the soil under the waters of a
navigable stream, where the tide ebbs and flows, and if such grant
of soil carries with it the right of a several fishery to the
exclusion of a public use, the remaining inquiries are whether the
grant of Charles II to the Duke of York in the year 1664 did convey
the premises in question? and if so, then, whether this right was
surrendered by the proprietors of New Jersey to Queen Anne in the
year 1702?
This charter to the Duke of York is one containing not only a
grant of the soil, but of the powers of government. This Court, in
the case of
Johnson v. McIntosh, in noticing the various
charters from the Crown, observe that they purport to convey the
soil and right of dominion to the grantees. In those governments
which were denominated royal, where the right to the soil was not
vested in individuals, but remained in the Crown, or was vested in
the colonial government, the King claimed and exercised the right
of granting the lands. Some of these charters purport to convey the
soil alone, and in those cases in which the powers of government as
well as the soil are conveyed to individuals, the Crown has always
acknowledged itself to be bound by the grant, and in some
instances, even after the powers of government were revested in the
Crown, the title of the proprietors of the soil was respected. The
Carolinas were originally proprietary governments; but in 1721, a
revolution was effected by the people, who shook off their
obedience to the proprietors and declared their dependence
immediately on the Crown, and the King purchased the title of those
proprietors who were disposed to sell. Lord Carteret, however, who
was one of the proprietors, surrendered his interest in the
government, but retained his title to the soil, and that title was
respected till the revolution, when it was forfeited by the laws of
war.
This shows the light in which these charters, granting the soil,
were considered by this Court. That they conveyed an absolute
Page 41 U. S. 428
interest in the soil and passed everything susceptible of
private and individual ownership, of which a fishery is certainly
one, according to the settled law, by the authorities I have
referred to. Subject always, as before mentioned, to the
jus
publicum or rights of navigation and trade, but of which the
right of a common fishery forms no part after the soil has been
conveyed as private property.
It is unnecessary to notice particularly the various charters
and mesne conveyances set out in the special verdict. It was
admitted on the argument that the premises in question fall within
these conveyances and vested in the proprietors of New Jersey all
the right and title, both of soil and the powers of government,
which passed to the Duke of York under the charter of Charles II.
The terms employed in the description of the rights conveyed, are
of the most comprehensive character, embracing the land, soil, and
waters. After a general description and designation of the
territory embraced within the charter and comprehending the
premises in question, it adds,
"together with all the lands, islands, soils, rivers, harbors,
mines, minerals, quarries, woods, marshes, waters, lakes, fishings,
hawkings, huntings and fowlings, and all other royalties, profits,
commodities and hereditaments, to the said several islands, lands,
and premises belonging and appertaining, with all and every of
their appurtenances, and all our estate, right, title, interest,
benefit, advantage, claim and demand of, in, or to the said lands
and premises or any part or parcel thereof, and the reversion and
reversions, remainder, and remainders thereof, to have and to hold
all and singular the premises hereby granted or herein mentioned
unto our brother James, Duke of York, his heirs and assigns
forever, to be holden of us, our heirs and successors in free and
common socage."
If these terms are not broad enough to include everything
susceptible of being conveyed, it is difficult to conceive what
others could be employed for that purpose. The special verdict,
after setting out the mesne conveyances by which the title is
deduced down to the proprietors of New Jersey, sets out a
confirmation of the title in the proprietors by Charles II as
follows:
"And the jurors, on their oath aforesaid, further say that the
said Charles II, afterwards, to-wit, on 23 November in the year of
our Lord 1683,
Page 41 U. S. 429
by a certain instrument in writing, duly executed, bearing date
on the same day and year last aforesaid and reciting the said
last-mentioned indenture from the said Duke of York to the said
twenty-four proprietors, did recognize their right to the soil and
government of the said Province of East New Jersey, whereof the
tenements aforesaid, with the appurtenances, in the declaration
aforesaid are parcel, and did strictly charge and command the
planters and inhabitants and all other persons concerned in the
same to submit and yield all due obedience to the laws and
government of the said twenty-four proprietors, their heirs and
assigns, as absolute proprietors and governors thereof, who, in the
words of the said instrument in writing, had the sole power and
right, derived under the said Duke of York, from him, the said
Charles II, to settle and dispose of the said Province of East New
Jersey upon such terms and conditions as to the twenty-four
proprietors, their heirs and assigns, should deem meet."
Here is the most full recognition and confirmation of the right
and title of the proprietors to the soil, with the absolute power
to dispose of the same in such manner as they should think proper.
The absolute ownership could not be expressed in a more full and
unqualified a manner. In the case of
Fairfax v. Hunter's
Lessee, 7 Cranch 618, the question was as to the
legal effect and operation of certain descriptive words in a
charter of Charles II, and MR. JUSTICE STORY, in giving the opinion
of the Court, said
"The first question is whether Lord Fairfax was proprietor of
and seized of the soil of the waste and unappropriated lands in the
Northern Neck by virtue of the royal grants of Charles II and James
II, or whether he had mere seignoral rights therein as lord
paramount, disconnected with all interest in the land except of
sale and alienation. The royal charter expressly conveys all that
entire tract, territory, and parcel of land situate &c.,
together with all the rivers, islands, woods, timber, &c.,
mines, quarries of stone, and coal, &c., to the grantees and
their heirs and assigns to their only use and behoof, and to no
other use, intent and purpose whatsoever."
"It is difficult," said the Court,
"to conceive terms more explicit than these to vest a title and
interest in the soil itself. The land is given, and the exclusive
use thereof, and if the union of the title and the exclusive use do
not constitute the complete and absolute
Page 41 U. S. 430
dominion in the property, it will not be easy to fix any which
shall constitute such dominion."
The terms here used are certainly not more broad and
comprehensive than those used in the charter under consideration,
and if they will pass the right to the soil in the one case, they
certainly must in the other. The land in the one case being covered
with water and in the other not can make no difference as to the
passing of the title if land under water can be conveyed at all,
and whatever the public right to the use of the water may be, it
can give no right to the use of the land under the water, which
has, by the grant, become private property. And if, as I think, the
authorities clearly show a grant of the soil carries with it the
right to every private use to which it can be applied, including
the cultivation of oysters, there can be no ground upon which this
can be claimed as a common right. A several fishery and a common
fishery are utterly incompatible with each other. The former is
founded upon and annexed to the right of soil, and when that right
of soil is acquired by an individual, the several fishery begins
and the common fishery ends.
Did the proprietors, then, by the surrender of Queen Anne in the
year 1702, relinquish any rights of private property in the soil
derived under the charter of Charles II? I think it very clear that
they surrendered nothing but the mere powers of government granted
by the charter, retaining, unaffected in any manner whatever, the
right of private property.
The special verdict states the surrender as follows:
"That on 15 April, in the year 1702, the said twenty-four
proprietors and the other persons in whom, by sundry means
conveyances and assurances in the law the whole estate, right,
title and interest in the said Province of East New Jersey were
vested, at the said last-mentioned date, as proprietors thereof by
an instrument in writing under their hands and seals, bearing date
the same day and year last aforesaid, did, for themselves and their
heirs, surrender and yield up unto Anne, Queen of England, &c.,
and to her heirs and successors, all the powers and authorities in
the said letters patent granted to correct, punish, pardon, govern,
and rule all or any of her said majesty's subjects or others who
then were, as inhabitants, or thereafter might adventure into or
inhabit, within the
Page 41 U. S. 431
said Province of East New Jersey. And also to nominate, make,
constitute, ordain, and confirm any laws, orders, ordinances,
directions, and instruments for those purposes or any of them, and
to nominate, constitute, or appoint, revoke, discharge, change, or
alter any governor or governors, officers, or ministers which were
or should be appointed within the said province, and to make,
ordain and establish any orders, laws, directions, instruments,
forms, or ceremonies of government and magistracy for or concerning
the same, or on the sea, in going to or coming from the same, or to
put in execution or abrogate, revoke, or change such as were
already made for or concerning such government or any of them. And
also the powers and authorities by the said letters patent granted
to use and exercise martial law in the said Province of East New
Jersey. And to admit any persons to trade or traffic there. And of
encountering, repelling, and resisting by force of arms any person
or persons attempting to inhabit there without the license of them,
the said proprietors, their heirs and assigns. And all other the
powers, authorities, and privileges of and concerning the
government of the province last aforesaid or the inhabitants
thereof which were granted or mentioned to be granted by the said
several above-recited letters patent or either of them. And that
the said Queen Anne afterwards, to-wit, on the 17th day of the same
month of April in the year last aforesaid, did accept of the said
surrender of the said powers of government so made by the said
proprietors in and over the premises last aforesaid."
I do not perceive in this surrender a single term or expression
that can in the remotest degree have any reference to the private
property conveyed by the grant or to any matter except that which
related to the powers of government; all the enumerated subjects
manifestly have relation only to such powers. And after this
specification of particulars comes the special clause "and all
other the powers, authorities, and privileges of and concerning the
government," necessarily implying that the specified subjects
related to the powers of government, and the acceptance by the
queen manifestly limits the surrender to such powers; she accepts
the said surrender of the said powers of government so made by the
proprietors in and over the premises.
If there was anything in the language here used which could
Page 41 U. S. 432
in the least degree render doubtful the object and purpose of
this surrender, the memorials of the proprietors, and the
correspondence which took place on the subject, referred to on the
argument, as contained in the collection of Leaming & Spicer,
must remove all doubt and show that the surrender was confined
exclusively to the powers of government and intended to operate not
only as a surrender of such powers, but as a confirmation of all
right and title to the soil and private property of the
proprietors. And if so, the proprietors' right must depend upon the
power of the King to grant the right claimed in the premises and
the construction of the charter as to what it does embrace. And I
have endeavored to show that by the settled and uncontradicted
principles of the common law, the King had the power to grant the
land under the water of a navigable river, and that such grant
carries with it to the grantee all rights of private property of
which the susceptible, subject to the
jus publicum; that
the grant of the soil necessarily carries with it a several and
exclusive fishery, which is utterly incompatible with the rights of
a common fishery, and which, of course, can form no part of the
jus publicum, and that the grant in question of Charles II
to the Duke of York conveyed all private right in the soil which
could be conveyed by the King, all which rights, by sundry mesne
conveyances, became vested in the proprietors of East New Jersey,
and from them to the lessor of the plaintiff.
And I can discover nothing in the authorities giving countenance
to the idea that the King held the land covered by the waters of a
navigable river as trustee or by a tenure different from that by
which he held the dry land. And I must again repeat, if the King
held such lands as trustee for the common benefit of all his
subjects, and inalienable as private property, I am unable to
discover on what ground the State of New Jersey can hold the land
discharged of such trust and can assume to dispose of it to the
private and exclusive use of individuals. If it was a trust estate
in the King for the benefit of his subjects, and upon the
revolution the government of New Jersey became the trustee in the
place of the King, and the trust devolved upon such government, and
the land became as inalienable in the government of New Jersey as
in the hands of the King, and the state must be bound to hold all
such lands subject to the trust, which, as contended, embraces
Page 41 U. S. 433
a common right of fishery in the waters and the dredging for
oysters in the land covered by the waters, and if this be so, there
certainly can be no power in the state, without a breach of trust,
to deprive the citizens of New Jersey of such common right and
convert these oyster grounds to the private and exclusive use of
individuals.
There is nothing in the case, in my judgment, showing a usage in
the state by which the proprietors have, either directly or by
implication, relinquished or abandoned any right of property which
they derived under the charter of Charles II. All the authority
exercised by the state in granting ferries, bridges, turnpikes, and
railroads, &c., are the exercise of powers vested in the
government over private property for public uses, and formed a part
of the powers of government surrendered by the proprietors to Queen
Anne, and it is only since the decision in
Arnold v. Mundy
that the private right of the proprietors to the lands under the
waters in New Jersey has been denied and assumed by the state to
grant the same to individuals, and even in such cases it has been
done cautiously and apparently with hesitation as to the right of
the state. In the two cases referred to on the argument, of a grant
to N. Burden, on 8 November, 1836, and to Aaron Ogden on 25
January, 1837, of land under the water, the grant is a mere release
or quitclaim of the state; but the proprietors have been in the
habit of making grants for land under the water from the time of
the surrender to Queen Anne down to the year 1820, and numerous
instances of such grants were referred to on the argument.
With respect, however, to the right of fishery, there is, in my
judgment, a marked distinction, both in reason and authority,
between the right in relation to floating fish and the right of
dredging for oysters. The latter is entirely local and connected
with the soil. There are natural beds of oysters, but in other
places there is a peculiar soil adapted to the growing of oysters.
They are planted and cultivated by the hand of man, like other
productions of the earth, and the books in many cases clearly hold
up such a distinction and speak of the oyster fishery as distinct
from that of floating fish, 5 Burr. 2814; and in the case of
Rogers v. Allen, 1 Camp. 309, this distinction is
expressly taken. It was an action of trespass for breaking and
entering
Page 41 U. S. 434
the several oyster fishery of the plaintiffs in Burnham River
and fishing and dredging for oysters. The defense set up was that
the
locus in quo was a navigable river in which all the
King's subjects had a right to fish and dredge for oysters, and
evidence was introduced showing that all who chose had been
accustomed to fish in Burnham River for all sorts of floating fish,
without interruption, and it was contended that a fishery was
entire, and that as it had been proved that it was lawful for all
the King's subjects to catch floating fish, so they might lawfully
dredge for oysters. But Heath, Justice, ruled otherwise and said a
fishery was divisible -- a part may be abandoned and another part
of more value may be preserved. The public may be entitled to catch
floating fish in the River Burnham, but it by no means follows that
they are justified in dredging for oysters, which may still remain
private property, and although a new trial was granted upon another
point in the case, the doctrine as above stated was not at all
impugned by the Court of King's Bench.
Upon the whole I am of opinion that the judgment of the circuit
court ought to be affirmed.
BALDWIN, JUSTICE, also dissented.