Crenshaw, 1 Hen. & Munff., 474; 26 Maine Rep., 128; Bady vs. Weeks, 3 Barb. S. C. Rep., 158; Story, § 923-925. See State of Pennsylvania vs. Wheeling Bridge Co., 18 Howard U. S. Rep., 421.

NOTE 49.-PAGE 225.

State Decisions.

NEW JERSEY.-In no State of the Union has the subject received a more thorough investigation than in New Jersey.

The first case of importance is that of Arnold vs. Munday, 1 Halstead Rep., 1. It was decided that the patents granted by the king to the Duke of York carried the right to navigable rivers as a royalty appurtenant to the government and sovereignty, and not as an estate or right to property in fee. The grants of the Duke to the proprietors on the shore had the same, and no greater, operation.

When the proprietors surrendered the right of government to Queen Anne, this right of sovereignty went with it. No estate or property was retained. The State succeeded to the power of both king and parliament, and become invested with this royalty. Therefore, the assigns of the proprietors had no exclusive right of fishing or oystering in these waters, unless by grant from the State; which not appearing, the privilege remained in common.

The Chief Justice observed, upon the trial, that a grant bounded on a navigable river extended to the edge of the water to high water when the tide was up, and to low water when it was down-and that the intermediate space

might be appropriated by the owner of the adjacent land to the building of wharves, &c. But when the case was argued before the full bench, he said "that a grant of land, bounded upon a river or other water, which is navigable, and where the tide ebbs and flows, extends to the edge of the water only, that is to say, to high water mark only." The next case is Gough vs. Bell (1 Zabriskie's Rep., 156). In that it was held

1. That the title in the country, which vested in the British nation, was that of discovery, and was held by the king in trust for the public. Such matters as were part of the sovereignty or regalia were subject to the restrictions then imposed on their alienation by the law of England.

2. The crown could not grant a several fishery in navigable rivers, or arms of the sea; and, consequently, could not grant the soil under water; a grant which would involve the destruction of the fishery.

3. The right to navigable rivers and arms of the sea was included in the surrender to Queen Anne, by the proprietors of East Jersey, as a part of the sovereignty, and at the revolution vested in the State.

4. The shores of navigable rivers and arms of the sea, where the tide ebbs and flows, which includes all between high and low water mark, is part of the sovereignty, and belongs to the State, not to riparian owners.

5. A riparian owner, by filling up in front of his premises, does not become entitled to the land so filled up.

6. A boundary to or along a navigable river, bay, &c., extends to high water mark only; but a grant of land, in a question of jurisdiction, to low water.*

* In Palmer vs. Smith, 6 John. Rep., 133, it was decided, that where an act extended the boundaries of a town over navigable waters, it was to be

7. The land under navigable waters, bays, and arms of the sea, are part of the public domain, and the legislature may grant and alien them. However expedient and proper it might be to make such a grant to the riparian owner, it was not obligatory on the State to do so.

The same case of Gough vs. Bell came again before the court, under some additional facts. The important one was, that the place of the trepass had been occupied, filled in, and improved by the owner of the adjacent upland before the grant was made by the State.

Gough vs. Bell, 2 Zabriskie, 441.

In this it was decided, C. J. Green:

1. That no title to land under water could be made under the proprietors of East Jersey. They had no right. This was definitely settled in Arnold vs. Munday, and Martin vs. Waddell.

The locus in quo was originally between high and low water. But, at the time of the alleged trespass, it had been filled up and occupied as a meadow by the owners of the adjoining shore.

2. "The ancient rule of the common law was, that the title of owners of land bounded by the sea or by navigable rivers, where the tide ebbs and flows, extends to ordinary high water mark only. The title to the shore, between ordinary high and low water mark, as well as the title to the soil under water, belongs prima facie to the sovereign." Citing various cases.

3. This title, which by the common law of England is vested in the king, upon the revolution became vested in

intended as only made for the purpose of jurisdiction, and did not give the property in the soil under water. The town of Flushing had not, therefore, the right to prohibit the catching of clams below low water.

people. In the State the rule of the common law, as to the limit of the right, remains unaltered. High water mark constitutes the boundary between the proprietors and the title of the sovereign.

The point is fully settled in Arnold vs. Munday and Martin vs. Waddell.

4. The title to the shore of navigable rivers, between ordinary high and low water mark, being vested in the State, may be granted to individuals by the legislature, as by parliament in England.

5. The views expressed upon this power of the legislature in the same case, when formerly before the court, are reaffirmed. The Chief Justice says he concurred in the views of Justice Randolph.

6. Although the authorities are not uniform, yet the better opinion appears to be, that since Magna Charta, the English sovereign has no power to alien the public do

main.

7. A grant of the waters, to the utter destruction of navigation and fishery, would not only be a grievance, but an infringement upon the Constitution of the United States.

8. The plaintiffs made title under a grant from the State in 1836.

It appeared that the owners of the upland adjoining the place in question had filled in the premises, and raised them above the level of the tide prior to the grant.

9. The Chief Justice then enters into a full and elaborate argument, leading to the conclusion, that this occupation and improvement of such soil under water, before and without the intervention of the State on behalf of the public right, was by the custom and common law of New Jersey (sanctioned impliedly by many statutes) sufficient to vest the title in the upland owner.

Justice Carpenter inclines strongly to the opinion that the title to the strip between high and low water mark, as matter of law in New Jersey, vested in the adjoining

owners.

Justice Randolph delivered a dissenting opinion. See also the case of Martin vs. Waddell, 16 Peters, 307.

PENNSYLVANIA. The positions established by the Courts of Pennsylvania may be collected from the following cases: Randall vs. The Delaware and Raritan Canal Company, Wallace's Rep., 290; Bennett vs. Boggs, 1 Baldwin's Rep., 72; Naglee vs. Ingersoll, 7 Barr, 194.

They appear to determine—

That previous to the revolution, the channel and waters of the Delaware, below Trenton, so far as the same were navigable, in the common law sense of the term, were vested in the King of England.

That the rights of the shore proprietors on the Delaware river, to low water mark, existed in colonial times, and had been recognized by New Jersey, Pennsylvania, and in various States. But below this, the State is the owner of the river in full sovereignty, and no one can acquire a right in it but by grant or prescription.

The statement of the learned judge, in Naglee vs. Ingersoll, 7 Barr, 94, that in England and this country the space between high and low water mark, on navigable rivers, belongs to the owners of the adjacent soil, is certainly an error. But as applied to the bed of the stream, the true rule of the English law cannot be better expressed than in this opinion. The bed of the navigable river is there vested in the crown, and here in the Commonwealth, for the use of the whole community; and no private man can challenge an individual interest therein.