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employed in a deed, denotes only the land above high-water mark which is overflowed by the spring or extraordinary tides.
§ 29. The shore partakes of the nature both of the sea which covers it and of the land which it defends.i When this term is used in deeds and legal instruments, it comprehends the soil itself, and is inapplicable to a grant of a mere privilege or easement.2 The shore may pass under the word "terra."8 So a devise of " a beach for drift-wood and timber" is a gift of the land itself, and not of a mere easement in the land.4 But it is not to be construed according to its technical meaning if such construction would violate the intention of the parties. Where land adjacent to the sea was conveyed by a deed which reserved the privilege "of piling up seaweed on the shore," it was held that the right reserved was to pile the seaweed upon the upland, and not below high-water mark, where it would be swept away by the tide.6 So, where a certificate filed by a railroad company described one terminus of a tunnel as being "on the western shore of the Hudson River, and within or near Jersey City or Hoboken," the word "shore" was held to be used in the sense in which Jersey City or Hoboken is said to be situated on the shore of the river.6
i "The shore is not counted for lands or grounds gained from the sea, or left by it, because at every full sea it is covered with the waters thereof." Callis on Sewers, 54. "Shores and such grounds, which alterais vicibus are wet and dry, are not accounted relinquished grounds." Id. 274.
* Scratton v. Brown, 4 B. & C. 485, 490; Beaufort v. Swansea, 3 Exch. 413.
3 Beaufort v. Swansea, 3 Exch. 413, 425.
4 Brown v. Lakeman, 17 Pick. 444; 13 Pick. 151; Lakeman v. Butler, 17 Pick. 430; Phillips v. Rhodes, 7 Met. 322, 325.
5 Mather v. Chapman, 40 Conn. 382. * State v. Hudson Tunnel Railroad
Co., 38 N. J. L. 548. See Hathaway v. Wilson, 123 Mass. 359, 361, 362; Ripley v. Knight, 123 Mass. 515; Saltonstall v. Long Wharf, 7 Cush. 195, 201; Doane v. Willeutt, 5 Gray, 328, 335 ; Niles v. Patch, 13 Gray, 254; Hodge v. Boothby, 48 Maine, 68.
OF PROPERTY IN TIDE WATERS IN THIS COUNTRY.
30. The right to this property prior to the Revolution.
31. The powers possessed by the colonies.
32. The title acquired by the States at the Revolution, and the nature of
33. The commercial powers and admiralty jurisdiction ceded to the gen
34. The power of Congress over navigable waters.
35. The rights of the State in relation to the power of Congress.
36. State grants in navigable waters, how construed.
37. Rights acquired by prescription against the State.
38. The State's control of fisheries within its limits.
39. The rights of the new States in their navigable waters.
40. The power of the general government over navigable waters not in
cluded in any State.
§ 30. In territories acquired by discovery, the rights of the new settlers are determined by the laws of the mother-country, which become immediately applicable ;1 but in lands acquired by conquest, the conqueror may prescribe what law he pleases.2 The early English settlements in this country, upon the Atlantic coast, were of the former class,3 the lands which
1 1 Black. Com. 107; Bogardus c. Trinity Church, 4 Paige, 178; 15 Wend. 111.
'Ibid.; Calvin's Case, 7 Co. 17; Campbell v. Hall, 1 Cowper, 204, 208; 1 Black. Com. 107; 1 Kent Com. 473, note; United States v. Percheman, 7 Peters, 51, 87; Langdeau v. Hanes, 21 Wall, 521,527 ; McMullen v. Hodge, 5 Texas, 34.
3 Blaekstone's statement (1 Black.
Com. 107, 108), that the American plantations were principally obtained by conquest and driving out the natives, or by treaties, and that the common law of England, as such, has no allowance or authority there, and Lord Holt's remark in Salk. 066, that "the law of England docs not extend to Virginia; her law is what the king pleases," have been always treated as erroneous in this country. Arnold v. were occupied by the colonies being claimed by the Crown of England by right of discovery. A grant from the king could alone confer title to the soil, and was the only source of authority for exercising powers of government over the lands so granted.1 The absolute right of property and dominion was thus held to belong to the European nation by which any particular portion of the country was first discovered, as if it had been found without inhabitants.2 The Indians were regarded as mere temporary occupants, having no title to the soil which they could convey, except to the nation which claimed the territory, or with its express consent.3 Hence, a grant by the Indian tribes neither augmented the title acquired by discovery, nor did it alone possess such validity as would enable the grantee to resist a title to the same lands under a royal grant.4 Where Indian grants were recognized and confirmed by the colonial gov
Mundy, 1 Halst. 1, 82, 83; Bell v. Gough, 23 N. J. L. 024, 707; Johnson v. Mcintosh, 8 Wheat. 543; Martin v. Waddell, 16 Peters, 367; Cherokee Nation v. Georgia, 5 Peters, 1; Worcester v. Georgia, 6 Peters, 015; Holden v. Joy, 17 Wall. 211, 243, 244; United States v. Cook, 19 Wall. 591; Jackson v. Porter, 1 Paine, C. C. 457; Mitchell v. United States, 9 Peters, 745; Clark v. Smith, 13 Id. 195; 8 Opin. Atty. Gen. 262, 264; United States v. 43 Gallons of Whiskey, 93 U. S. 188; Beecher v. Weathersby, 95 U. S. 517, 525; De Armes v. New Orleans, 6 La. 132; Penn v. Baltimore, 1 Ves. 445; Commonwealth v. Roxbury, 9 Gray, 451, 478; Jackson v. Ingraham, 4 Johns. 163; Jackson v. Waters, 12 Johns. 305; Jackson v. Hudson, 3 Johns. 375; 1 Kent Com. 258; 3 Id. 377 et seq.; Jackson r. Wood, 7 Johns. 295; Gilbert v. Wood, 7 Johns. 290; Goodell v. Jackson, 20 Johns. 093; Penobscot Tribe v. Veazie, 58 Maine, 402; Veeder v. Guppy, 3 Wis. 502. In England it is held that when English subjects establish themselves in uninhabited or barbarous lands, they continue subject to
the sovereignty of England and to such of its laws as are applicable to their new condition; but that acts of Parliament, passed after the settlement of the new colonies, do not bind them unless they are expressly named. Anon. 2 P. Wms. 75; Blankardr. Galdy, 2 Salk. 411; Campbell v. Hall, 1 Cowper, 204, 208; Attorney General v. Stewart, 2 Mer. 143, 159; Advocate General v. Dossee, 9 Jur. N. S. 877; Button v. Howell, Show. Pari. Cas. 81, 32; Picton's Case, 30 Howell's State Trials, 903; Pitt v. Dacre, 3 Ch. D. 295; Martin v. Waddell, 16 Peters, 367 ; Pollard v. Hagan, 3 How. 212, 229; 1 Black. Com. 107, 108; Johnson r. Mcintosh, 8 Wheat.. 543, 595.
'Ibid. 1 Ibid.
3 See authorities above, note 3; Holden v. Joy, 17 Wall. 211, 243, 244; Leavenworth Railroad Co. p. United • States, 92 U. S. 733; Minter v. Shirley, 45 Miss. 376; Wood p. M. K. & T. R. Co., 11 Kansas, 323; 1 Kent Coin. 258; 3 Id. 377 el seq.; Commonwealth v. Roxbury, 9 Gray, 451, 478; Bell v. Gough, 23 N. J. L. 624, 707.
ernments acting under the political powers conferred by the European nations, they were construed according to the laws of such nations. In 1685, the colonial assembly of Connecticut confirmed to proprietors, who had purchased from the Indians, lands which included an arm of the sea, with all islands, ponds, ways, "waters, watercourses, havens, ports, rivers, fishings," etc. This confirmation, though in itself a grant of title, did not convey the soil between high and lowwater mark, the words above quoted being insufficient, by the common law, to convey such soil.1 So, the title of the colonies to the shores and tide waters within their limits did not pass, under the colony patents, to the different towns which had purchased them from the Indians.8 No obstacle was thus presented to the application of the common law in controversies respecting waters either tidal or inland. Nor did the fact that many parts of this country were claimed, and actually settled, by those who were strangers to the common law, prevent that system from becoming generally prevalent. In New York, which was settled by the Dutch, with whom the civil law prevailed, the province was claimed by right of discovery, when it passed into the possession of the English, and, being re-established as a British colony, the common law of England was applied in controversies respecting its waters.3 The common law, so far as it is not repugnant to the institutions and laws of the particular State, has become, either by right of discovery or by statute, the fundamental law throughout this country, except in Louisiana.*
1 East Haven u. Hemingway, 7 Conn. 186, 200; Middlelown v. Sage, 8 Conn. 221; Jackson v. Porter, 1 Paine C. C. 457; Commonwealth .v. Roxbury, 9 Gray, 451, 478, 493. In the above case of East Haven v. Hemingway, Hosmer, C. J., while holding that the confirmation was a grant, added: "At the same time it must be admitted that the principal, if not the sole object of the grant, was to confirm to the proprietors the title to their lands purchased of the natives,
which they had not legal capacity to sell, and of which the proprietors had been in quiet possession for many years."
* Church v. Meeker, 34 Conn. 421, 428; Seeley v. Brush, 36 Conn. 423.
3 Canal Commissioners v. People, 5 Johns. 423, 445; Cortelyou v. Van Brundt, 2 Johns. 357; 1 Story on the Constitution, 130; Smith's New Jersey Law, 30, 37.
4 Norris v. Harris, 15 Cal. 220; Waters v. Ross, 12 Cal. 536; Van
§ 31. Under all the early governments in this country, whether charter, royal, or proprietary, the power to control and regulate their territorial and local interests was practically co-extensive and the same. No instance appears in which the Crown of England ever claimed, for its own benefit, any exclusive rights in the tide waters of these possessions, or in the soil under them. Although royal grants to individuals, for private purposes, include only what is expressly granted, and pass nothing by implication,1 yet, in the case of a grant by the Crown of extensive foreign domains, where the obvious intent of the grant is not merely to vest the Crown's right of property in the grantees, but also to invest them with civil and political powers, and to establish complete though subordinate sovereignties, a different rule has been held applicable in this country. The grant of King James I., in November, 1620, to the council of Plymouth, upon the basis of which most of the others were framed, expressly named,2 as included in the grant, not only the lands described, but also all havens, ports, rivers, waters, fishings, mines, etc., and all .and singular other commodities, jurisdictions, royalties, privileges, franchises, and preeminences, both within the tract of land upon the main, and within the islands and seas adjoining; and, although such words as ports, rivers, waters, or fishings, are insufficient, in the case of a private grant, to convey the soil,8 yet the other words employed, and especially the word "royalties," in connection with the manifest purpose of the grant, were held to convey to the colonial governments
Maren v. Johnson, 15 Cal. 308; Tesche- 'See Barker v. Bates, 13 Pick. 255,
macher v. Thompson, 18 Cal. 11; Reed 250.
v. Eldredge, 27 Cal. 340; Ward v. 3 Wood's Case, 1 Co. 46 b; 16 Vin.
Mulford, 32 Cal. 365; Galveston v. Abv. tit. Prerogative, K. § 27; Chitty
Menard, 23 Texas, 349; Courand v. on the Prerogative, 392; 2 Black.
Vollmer, 31 Texas, 400; Franklin's Com. 18; Yelv. 143 ; Shep. Touch. 97;
Succession, 7 La. Ann. 395, 418; Com. Dig. tit. Grant, E. 5; East
Reynolds v. Swain, 13 La. Rep. 193; Haven i>. Hemingway, 7 Conn. 186,
1 Kent Com. 473, note; Pollard v. 200; Middletown v. Gage, 8 Conn.
Hagan, 3 How. 212, 227. 221. The royal grant of the province
i Royal Fishery of the Banne, Sir of Maine, in 1639, to Sir Ferdinando
John Davies, 149; Somerset v. Fog- Gorges, expressly included the right
well, 5 B. & C. 884; Boston v. Rich- to wreck. See 3 Dane's Abv. 137. ardson, 13 Allen, 146.