iDukfe TLibvaxii* PMnphJat Collection Duke University Library, QJV..V. ^^^5^/^. AN EXAMINATION {EHY STREET. • 1866. The contents of the following pages originally ap- peared as newspaper communications — the first in the " Monitor" at Trenton, during the session of the last Legislature — the second, in the "State Gazette" soon afterwards. They attracted some attention at the time of their publication, and as the same ques- tions, which gave occasion for their production, may again be presented for the consideration of future Legislatures, it has been thought advisable to reprint them, in such form that they may be conveniently preserved for use if required. On the Ownership of Lands Under Water, If the old legal maxim be true, that " Ignorance of the law excuseth no man," then are a majority of the people of New Jersey inexcusable respecting one point of law at least — the legal rights of shore owners in adjoining lands which are covered by water. Widely different opinions have prevailed in the halls of legislation and in courts of law relating to this matter — within the last half century acts have been passed recognizing the rights of ownership in them by individuals, and other acts asserting by impli- cation, the ownership of all submerged lands by the State — and a similar diversity has prevailed in the decisions of the courts. Thus the constantly vary- ing legislation proceeding from the former, and the vacillating action of the latter, have kept the proprie- tors of shore line property ignorant of the law, or at all events ignorant of the phase it might assume when the next case should be presented for consideration ; and if they are not excusable for this, they certainly ought to be excused for desiring to have it so fixed and defined that they may hereafter understand what their rights really are. tt appears to be conceded by all that in the interior of the country, where comparatively small streams form the boundaries of farms or tracts of land, the rights of the owners extend ad filum aqua, or to the thread of the stream, which is generally held to be at the middle of its breadth; but for some reason not very apparent it has frequently been held in New Jersey that the rights of owners upon the banks of- the same streams, after they are sufficiently increased in size to be considered navigable, and especially in that part of their course where the tide ebbs and flows, are restricted to high water mark, with some undefined claim to that part of the shore or bank extending from high water to low water. For this restriction no sufficient reason has ever been assigned, and we are entirely unable to under- stand why an increased volume of water, or the flux and reflux of the tide, can be supposed to change or modify the rights of the owner of the shore. If this rule for determining the ownership be the proper one, the bottom of a river flowing through an extensive farm may in one part belong to the State, and in an- other part to the owner, or owners, of the land which forms its banks. This uncertainty, or " ignorance of the law which excuseth no man," has led to no inconsiderable amount of litigation in the courts, and has furnished the plea for considerable expenditures by the State, in attempts to arrive at something like certainty re- specting the ownership of submerged lands in various places within its boundaries, and especially in the counties of Hudson and Camden, where they are sup- posed by some to be so valuable that if the State can gain possession of them, and establish a proper agency for their management and sale, a sum may be realized from them sufficient to pay the present State debt at least. If the Legislatures of 1848 and 1864 had not been " ignorant of the law," it is confidently believed that neither would have involved the State in the expense attendant upon the appointment of commissioners to inquire into and report to succeeding Legislatures respecting a matter which both the makers and the administrators of the laws are, by the theory of our system of government, supposed to understand — or, in other words, to ascertain to whom, of right, the lands under water in the State of New Jersey belong. Had this matter been carefully examined by the law makers, they would unquestionably have learned that all navigable waters are public highways; and that, as such, the long existing and well understood laws, relating to those constructed upon the land, are equally applicable to those furnished by creeks, bays, rivers and other bodies of navigable water. The owner of a farm bounded on any side by a public road or highway, owns the fee of the land upon which it is constructed, to the middle thereof — or if the road passes through a farm, the fee of the whole is in the land owner, and he may carry a water pipe, or con- struct an arched passage under the roadway, from one part of the farm to another ; or plant trees upon it and gather the fruit from them, or remove them at his will ; or remove earth or minerals from any part of it, not interfering with the public servitude or easement. And if those acts are done by another without the land owner's leave, the doer is liable as a trespasser, in the same manner, and to the same ex^ tent, as if done in the adjoining enclosures, 8 So rivers, creeks, bays and other navigable waters, being public highways, the ownership or fee of the land over which the water flows is in the owners of the shores ; though the right to use the water for the purposes of navigation and fishery belongs to the public, and the State is bound to maintain this public right unimpaired. And if mines of coal, or iron, or other minerals be found extending beneath navigable waters, the owners of the adjoining shores have the right to work them — the owner of each shore, to the middle of the creek, river or bay under which the minerals lie. In England the workings of some mines extend far under the bed of the ocean, so that the miners hear the storms raging over their heads while engaged in their work. If the sovereign owned the soil under navigable waters, the proprietors of such mines could not thus extend their workings ; but such ownership is not claimed even there, where preroga- tive rights are much more extensive than are ever claimed in this country. Again : If, by the operation of natural causes, additions are made to the upland, the owner of the shore where it occurs, in all cases, takes possession of the newly formed land as the rightful owner — or, if by the action of the waves or currents, the upland is abraded or carried away, the shore owner loses his right to occupy, but not the ownership of the soil— the water which covers it passes into the care and custody of the State, as part of the great highway which it is bound to preserve unimpaired for the use of all; unless by natural causes it be restored to its previous condition. If a shore owner builds a wharf or pier extending into navigable water, without authority first obtained from the State, or from agents to whom it has dele- gated the right to decide upon the propriety of its construction, the law declares it a common nuisance, which may be abated by the same proceedings that are required for abating nuisances in highways upon the land, caused by excavating pits, or placing' ob- structions of any kind in such situations as to render travel difficult or dangerous. And should a vessel run upon any such unauthorized dock or pier, the owner would be held liable for the damages she might sustain by the collision — but even in New Jersey it has never been held that the builder of a wharf ex- tending from his own shore into navigable water was a trespasser, simply because no man can commit a trespass upon his own property ; nor has a suit ever been instituted on the part of the State to dispossess such owner. The present Eiparian Commissioners have, in their report, modestly repeated the conclusion arrived at by their predecessors, the Commissioners of 1848, who expressed the opinion that the lands under water in Hudson river and New York bay are of great value, and that they ought to be disposed of for the benefit of the State. For their time and labor bestowed in hearing claim- ants, collecting facts and presenting a synopsis of the whole to the Legislature, they were paid a few hun- dred dollars— their report was printed and forgotten. The first commission consisted of three members only, but the present contains six, and as they are operating on a much more extensive scale than their predecessors — employing secretaries, surveyors, drafts- men and assistants, their expenditures, instead of being limited to a few hundreds, will no doubt ex- B 10 tend to several thousands of dollars (eleven thousand has been paid, more may be asked for) ; for which the treasury of the State will probably never be reim- bursed. The idea that the State will ever realize anything from the sale of lands it does not own, is an Illusion; and should an attempt be made to carry out the plans suggested in the Commissioners' report, it would soon be found that parcels of the New Jersey shores be- long to citizens of New York and Pennsylvania, and that the question of title to the lands under water in front thereof must be referred to the United States Courts for decision, where the recommendations of Eiparian Commissioners will have little weight if the decisions in the "Batture" case at New Orleans, and the case of Pintado at Pensacola, are still held to be sound law. And the expectation that the submerged lands in New York bay and Delaware river will pro- duce a sum sufficient to discharge the war debt of New Jersey, will be "dissolved like the baseless fabric of a vision, and leave not a rack behind." The whole argument may be shortly summed up thus : The State, as conservator of the public inter- est, has a clear, full, perfect and indefeasible right to control all the navigable waters within its limits, and is charged with the duty of preserving them undimin- ished in extent and with their usefulness unimpaired, permitting the construction of no works therein not necessary or beneficial to the operations of navigation and commerce, and permitting such only after care- fully ascertaining that they will add to the public convenience. And on the other hand, the State has no claim to, or right in, land over which the navigable 11- waters flow, except the right of eminent domain, and cannot legally dispose of, or appropriate to its own use, the smallest portion of it without awarding proper and reasonable compensation therefor to the owner. Former Legislation Eespecting Submerged Lands, As the proceedings of the late Riparian Commis- sioners excited so much attention in Jersey City, as to induce the municipal government to petition the Legislature to sanction the measures proposed by that now defunct Board, the following remarks upon that part of their report designated " Appendix D," are offered for the consideration of your readers. For the purpose of sustaining their doctrine that- all submerged lands within its limits are the pro- perty of the State, the Commissioners collected to- gether, in this appendix, a list of all grants made by the Legislature of New Jersey, to individuals and joint stock companies to reclaim, improve and occupy lands under water in various places, and for the va- rious purposes therein mentioned. From this list it appears that the first grant in the order of time, was one to Nathaniel Budd, in 1802. This does not assert any right of the State in the land, which is described in the act as being in con- troversy, but only authorizes the erection of ferry houses, stables and other buildings, at or near the 14 said dock and ferry stairs, on two acres of land ; a part of which may have been covered with water, but it is not so described. The act incorporating the Associates of the Jersey Company, which was passed in 1804, distinctly re- cognizes the ownership, by the corporators, of the land described in the preamble, a considerable por- tion of which was then lying under water. The preamble to the grant to Aaron Ogden recites that he had acquired, " by deeds," the land to which the State relinquished its rights, except the right of sovereignty, without asserting or even intimating that it had any right of ownership in the land de- scribed — admitting, in fact, that it already belonged to Ogden, he having acquired it by deeds. If he had so acquired it before his application to the Legisla- ture, then the relinquishment by the State, of its rights, must have been, not rights to the land, of which it was admitted he was the owner, but of some use or servitude of which the grantee desired it to be relieved. If he had not the title, as represented, the grant by the Legislature is clearly void, having been obtained through false pretences. The Hoboken Land and Improvement Company were authorized, by their charter, " to hold, acquire, and convey one thousand acres of land — and to fill up, occupy, and possess and enjoy, all land covered with water fronting and adjoining the lands that may be owned by them, and construct thereon wharves, harbors, piers and slips, and all other struc- tures requisite and proper for commercial and ship- ping purposes." And by an act dated 24th February, 1838, similar, 15 and even more extensive, powers were granted to the " Bergen Land and Improvement Company." Sundry other joint stock companies have been chartered from time to time, to which similar pow- ers are given — but the same absence of any pre- tence of claim to ownership in the lands described, extends through all the charters and grants enume- rated in the appendix ; which was intended to in- clude all that have heretofore been made to individ- uals or corporations. The State of New Jersey has not hitherto sold, or attempted to sell, or claimed the right to sell any lands under water, within its limits, or made any charge for granting a right to occupy such lands, when leave to do so has been granted to owners of the adjoining shores. But in a majority of the cases where grants to construct wharves and reclaim sub- merged lands have been made, the Legislature has, in direct terms, acknowledged the titles of shore owners, to the lands under water, described in the acts, and intended to be occupied by the works so authorized — and has usually inserted a clause for- bidding the grantees from occupying submerged lands in front of upland belonging to other owners, without their consent. Thus it appears, upon a careful examination of the fifty or more grants which are cited by the Commis- sioners, that the Legislature never has "de /