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§ 66. Private rights in the navigable fresh-water rivers of this country, especially those in the Western and Southern States, are materially affected by a series of decisions in the Supreme Court of the United States, with respect to the admiralty jurisdiction. The rule by which the navigability of a river is determined by the ebb and flow of the tide,1 appears to have been first used in England to define the jurisdiction of the admiral who, by the king's commission, was charged with the care and protection of the Crown's prerogative rights in the sea.2 The early acts of Parliament,8 which limited the admiralty jurisdiction in civil cases to the "high seas," were usually construed by the common-law courts as meaning that portion of the sea which washes the open coast, and as prohibiting the exercise of this jurisdiction in the navigable arms and creeks of the sea which were within the countries, or inter fauces terrae,* however large or capable of navigation by sea-going vessels such places might be.5 Such was considered to be the law of England when
kill Navigation Co., 14 S. & K. 71, 79, Tilghman, C. J., said: "I consider it settled in Pennsylvania, by the decision in Carson v. Blazer, that the owners of land on the banks of the Susquehanna and other principal rivers, have not an exclusive right to fish in the river immediately in front of their lands, but that the exclusive right to fisheries, in these rivers, is vested in the State, and open to all. It is unnecessary to enumerate at this time the rivers which may be called principal, but that name may be safely given to the Ohio, Monongahela, Youghiogeny, Allegheny, Susquehanna, and its north and west branches, Juniata, Schuylkill, Lehigh, and Delaware." The effect of the compact of 1783, between the States of Pennsylvania and New Jersey, upon rights of fishery, navigation, and jurisdiction in the Delaware River, is discussed in Attorney General v. Delaware Railroad Co., 27 N. J. Eq. 1, 631; McKeen v. Delaware Division Canal Co., 49 Penn. St. 424: Tinicum Fishing Co. v. Carter,
61 Penn. St. 21; Hart v. Hill, 1
1 Sir Henry Constable's Case, 5 Co. 106; Leigh v. Burley, Owen, 122; De Lovio v. Boit, 2 Gall. 398.
* Sir Henry Constable's Case, 6 Co. 106; 2 Bacon's Abr. tit. Court of Admiralty; 8 Id. tit. Prerogative, B. 3; Callis on Sewers, 39; 4 Inst. 124, 134; Bains v. The James and Catherine, Bald. C. C. 644, 647.
J 13 Rich. II. c. 5; 15 Rich. II. c. 3; 2 Henry rV. c. 11; Ramsay v. Allegre, 11 Wheat. 611, 616.
* Ante, § 5.
4 See Leigh v. Burley, Owen, 122; The Public Opinion, 2 Hagg. Adm. 398; United States v. Wiltberger, 6 Wheat. 106, note; De Lovio v. Boit, 2 Gall. 308; Ins. Co. v. Dunham, 11 Wall. 100; Johnson v. 21 Bales of the question arose in this country.1 But the Judiciary Act of 17893 conferred upon the district courts exclusive cognizance of all civil causes of admiralty and maritime jurisdiction arising upon waters which are navigable from the sea, as well as upon the high seas; and in repeated decisions,3 the Supreme Court of the United States declined to adopt the English rule as the test for the interpretation of the grant in the Constitution which extended the power of the Federal courts "to all cases of admiralty and maritime jurisdiction." They considered that rule contrary to the general practice and understanding in this country, when the States were colonies, and held that the admiralty had, in this country, concurrent jurisdiction with the common-law coifrts in navigable rivers and arms of the sea, as far as the tide ebbed and flowed in them. In 1845 an act of Congress4 was passed
Cotton, 2 Paine, 601; 2 Bacon Abr. tit. Court of Admiralty; 4 Inst. 137; Bruce's Case, 2 Leach, C. C. 1093; 2 Brown's Civ. & Adm. Law, 92; Coombes's Case, 1 Leach, 388; 1 East, 307. The rule has since been enlarged by statute in England. See The Diana, 1 Lush. 539; The Courier, Ibid. 541; The Griefswald, Swab. Adm. 430.
1 Ibid.; Waring v. Clarke, 5 How. (U. S.) 241; Talbot v. The Commanders, 1 Dall. 98; New Jersey Steam Navigation Co. ». Merchants' Bank, 0 How. 344; Ramsay v. Allegre, 12 Wheat. Oil; The Huntress, Davpis, 93, note.
* The ninth section of this act (1 Stat, at Large, p. 77) provides that the district courts of the United States "shall also have exclusive jurisdiction, including all seizures under laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons' burthen, within their respective districts, as well as upon the high seas; saving to suitors, in all cases, the right of a common-law remedy, Where the common law is competent
to give it; and shall have exclusive original cognizance of all seizures on land, or other waters than as aforesaid, made, and of all suits for penalties and forfeitures incurred, under the laws of the United States."
3 The Thomas Jefferson, 10 Wheat. 428; Peroux v. Howard, 7 Peters, 324, The Orleans v. Phoebus, 11 Peters, 176; Waring v. Clarke, 5 How. 441; New Jersey Steam Navigation Co. v. Merchants' Bank, 0 How. 344; The Huntress, Daveis, 82; Thomas v. Lane, 2 Sumner, 1. See also Rossiter v. Chester, 1 Dougl. (Mich.) 154; General Buell v. Long, 18 Ohio St. 621; Bullock v. The Lamar, 1 West. Law, J. 444; Respublica v. Davison, 4 Yeates, 12"). The admiralty jurisdiction does not extend over the land so as to include a cause of damage originating on the water, like a fire, and destroying storehouses upon a wharf. The Plymouth, 3 Wall. 20; ante, § 23.
4 o Stats, at Large, 726. This act provided that "the district courts of the United States shall have, possess, and exercise the same jurisdiction in matters of contract and tort arising in, upon, or concerning steamboats and other vessels of twenty tons' burextending the jurisdiction of the district courts to certain cases of a maritime nature in different States and Territories upon the lakes and navigable waters connecting the lakes. In the case of the Genesee Chief,1 the question arose whether this act was constitutional, it being urged that it was not within that clause of the Constitution which empowers Congress to regulate commerce, and that if the constitutional grant of admiralty powers did not extend to waters above the tide, Congress could not extend it by legislation. The decision in this case overruled the earlier cases which limited the admiralty jurisdiction to tide waters, and the reasoning of Taney, C. J., who delivered the opinion of the court, proceeds upon the ground that the admiralty jurisdiction in this country extends to all waters, whether fresh or salt, where navigation aids commerce between different States, or with foreign nations. The learned judge said: "The only objection made to this jurisdiction is that there is no tide in the lakes or the waters connecting them; and it is said that the admiralty and maritime jurisdiction, as known and understood in England and this country, at the time the Constitution was adopted, was confined to the ebb and flow of the tide. Now there is certainly nothing in the ebb and flow of the tide that makes the waters peculiarly suitable for admiralty jurisdiction, nor anything in the absence of a tide that renders it unfit. If it is a public navigable water, on which commerce is carried on between different States or nations, the reason for the jurisdiction is precisely the same. And if a distinction is made on that account, it is merely arbitrary, without any foundation in reason, and, indeed, would seem to be inconsistent with it. In England, undoubtedly, the writers upon the subject, and the decisions in its courts of admiralt}', always speak of the jurisdiction as confined to tide
then and upwards, enrolled and licensed for the coasting trade, and at the same time employed in business of commerce and navigation between ports and places in different States and Territories, upon the lakes and navigable wate»s connecting said lakes, as is now possessed and exercised by
the said courts in cases of like steam-
water. And this definition in England was a sound and reasonable one, because there was no navigable stream in the country beyond the ebb and flow of the tide; nor any place where a port could be established to carry on trade with a foreign nation, and where vessels could enter or depart with cargoes. In England, therefore, tide water and navigable water are synonymous terms, and tide water, with a few small and unimportant exceptions, meant nothing more than public rivers, as contradistinguished from private ones; and they took the ebb and flow of the tide as the test, because it was a convenient one, and more easily determined the character of the river. Hence, the established doctrine in England, that the admiralty jurisdiction is confined to the ebb tmd flow of the tide. In other words, it is confined to public navigable waters. At the time the Constitution of the United States was adopted, and our courts of admiralty went into operation, the definition which had been adopted in England was equally proper here. In the old thirteen States, the far greater part of the navigable waters are tide waters. And in the States which were at that period in any degree commercial, and where courts of admiralty were called on to exercise their jurisdiction, every public river was tide water to the head of navigation. And, indeed, until the discovery of steamboats, there could be nothing like foreign commerce upon waters with an unchanging current resisting the upward passage. The courts of the United States, therefore, naturally adopted the English mode of defining a public river, and consequently the boundary of admiralty jurisdiction. It measured it by tide water. And that definition, having found its way into our courts, became, after a time, the familiar mode of describing a public river, and was repeated, as cases occurred, without particularly examining whether it was as universally applicable in this country as it was in England. If there were no waters in the United States which are public, as contradistinguished from private, except where there is tide, then unquestionably, here as well as in England, tide water must be the limits of admiralty power. And as the English definition was adopted in our courts, and constantly used in judicial proceedings and forms of pleading, borrowed from England, the public character of the river was in process of time lost sight of, and the jurisdiction of the admiralty treated as if it was limited by the tide. The description of a public navigable river was substituted in the place of the thing intended to be described. And under the natural influence of precedents and established forms, a definition, originally correct, was adhered to and acted on, after it had ceased, from a change in circumstances, to be the true description of public waters." If the Constitution were construed as measuring the jurisdiction of the admiralty by the tide, "then," continues the learned judge, "a line drawn across the River Mississippi would limit the jurisdiction, although there were ports of entry above it, and the water as deep and navigable, and the commerce as rich, and exposed to the same hazards and incidents, as the commerce below. The distinction would be purely artificial and arbitrary, as well as unjust, and would make the Constitution of the United States subject one part of a public river to the jurisdiction of a court of the United States, and deny it to another part equally public and but a few yards distant." It was accordingly held that the great lakes and the waters connecting them were originally public waters, and within the grant of admiralty and maritime jurisdiction in the Constitution of the United States.
§ 67. Such is now the established rule with respect to the admiralty jurisdiction of the United States Courts, a jurisdiction which is no longer limited in locality by the English rule, or by the acts of 1789 and of 1845.' The ebb and flow
'.Fretz v. Bull, 12 How. (U. S.) Towboat Co., 23 How. 215; The Com
460; Walsh v. Rogers, 13 How. 283; merce, 1 Black, 574; The St. Law
The New World, 16 How. 409; Ure renee, 1 Black, 522; The Fashion, 21
r. Coffman, 19 How. 66; New York How. 244; The Plymouth, 3 Wall. 20,
Steamboat Co. v. Calderwood, 19 34; Ad. Hine v. Trevor, 4 Wall. 555;
How. 245; Jackson v. The Magnolia, 17 Iowa, 349; The Moses Taylor, 4
20 How. 290; Allen v. Newbury, 21 AVall. 411; The Rock Island Bridge,
How. 244; Maguire v. Card, 21 How. 0 Wall. 213; The Belfast, 7 Wall.
248; Nelson v. Leland, 22 How. 48; 024; The Eagle, 8 Wall. 15; The
Philadelphia Railroad Co. v. Phil. Daniel Ball, 10 AVall. 557 ; The Cotton