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the right and jurisdiction of the Crown in the shores of navigable waters, and in the soil under such waters, and to invest them with such powers of legislation and administration as were necessary to advance the prosperity of the colonists. Such was the construction adopted by the Supreme Court of the United States,i and by the courts of Massachusetts,2 New Jersey,3 and Connecticut.4 It is doubtless consonant to the law of England. Thus, in Doe v. East India Co.,6 before the Privy Council, it appears to have been conceded that the defendants, as representing the Indian government, had a freehold in the bed and shores of the navigable rivers of India. Upon this principle the colony of Massachusetts passed the ordinance of 1647, by which the seashores and flats of the colony, down to low-water mark, not exceeding one hundred rods from high-water mark, were made the property of the littoral proprietors. In Brookhaven v. Strong,6 in New York, a grant of an exclusive right to the soil and the oyster fisheries in an arm of the sea, which was made by the colonial government, and was ratified and confirmed by the colonial assembly, was held to be valid.
§ 32. At the time of the Revolution, when the people became sovereign, the respective States succeeded to the title of the Crown in the tide waters within their territorial limits, and to such rights therein as had been previously granted to the local governments established under the
i Martin v. Waddell, 10 Peters, 367; 3 Harv. (N. J.) 495; Johnson v. McIntosh, 8 Wheat. 595; Fairfax v. Hunter, 7 Cranch, 618; Den v. Jersey City, 15 How. 426; Charles River Bridge v. Warren Bridge, 11 Peters, 420, 457; Bennett v. Boggs, Bald. C. C6O.
2 Barker v. Bates, 13 Pick. 255; Commonwealth v. Alger, 7 Cush. 53; Commonwealth v. Roxbury, 9 Gray, 451; Boston v. Richardson, 105 Mass. 351; Storer v. Freeman, 6 Mass. 435; Parker v. Smith, 17 Mass. 413; Lapish v. Bangor Bank, 8 Maine, 85; Clancey e. Houdlette, 39 Maine, 451.
royal sanction.1 Public rights in navigable waters were not affected or impaired by this change of title, and the powers acquired by the States were those which, in England, and in this country previous to the Revolution, could have been exercised by the king alone, or by him in conjunction with Parliament.8 It is apparent that the principles of the English law upon the subject have been much modified in this country.3 While in England there are rights of private property and of jurisdiction in the Crown, the public rights of navigation and fishery, which the Crown cannot impair,
and the power of Parliament to regulate these public rights, there are here no rights but those of the public on the one hand and of individuals on the other.1 For this purpose, the State represents the people, and the ownership is that of the people in their united sovereignty.2 Thus, in Pollard v. Hagan,3 the Supreme Court of the United States said: The State's "rights of sovereignty and jurisdiction are not governed by the common law of England as it prevailed in the colonies before the Revolution, but as modified by our own institutions." In Bell v. Gough,1 in New Jersey, Elmer, J., said: "The prerogative of the Crown, so far as it gave to the king the shores of the sea and of navigable rivers, rather as private property than as a sovereign right for the protection of the public, was not applicable to a distant province; and, indeed, the exercise of it, so as to require in all cases a license to prevent him from seizing and abating or renting at his pleasure structures on the shores or marshes reclaimed from the tide, whether there was or was not an obstruction of the navigation, could not but have been considered as an intolerable grievance, and, had it been commonly insisted on, would not have failed prominently to appear among the oppressive acts which occasioned and justified the Revolution. According to the reasoning of Chief Justices Kirkpatrick and Taney, in Arnold v. Mundy,2 and Martin v. Waddell,3 the king never granted to the proprietors of the province his jus privatum in the shores and soil of the navigable waters, but only that jus publicum which was essential to the powers of government. That the jus publicum, or, in other words, the so^reign right of jurisdiction over them, is vested in the government of the State, and is ample for the protection of the public right of navigation and of all other public rights, is undoubted. There is no evidence that the jus privatum, the right of private property in the shore to low-water mark, was ever asserted in the colony as a right of the Crown, or that it has until recently been claimed by the State; but there is, on the contrary, in my opinion, the strongest evidence that this right has been abandoned to the proprietors of the adjoining land from the first settlement of the province, and exercised by them to the present day, so as to have become a common right, and thus the common law. What was the origin of the usage, it may be difficult to say. If it be conceded that it arose from a mistaken apprehension of the doctrines of the English common law, or from what must now be admitted to have been a mistaken construction of
1 Ibid.; Clement v. Burns, 43 N. H. 609, 017, 019.
* McCready v. Virginia, 94 U. S. 391, 394. The case of Martin v. Waddell, 16 Peters, 309, was an action of ejectment for the recovery of certain land covered with water below lowwater mark in Raritan Bay in the State of New Jersey. The plaintiffs claimed a private and exclusive title to the land (1) under the letterspatent of King Charles II. in 1004 to the Duke of York, which conveyed to the latter a part of New England, &c, and "the lands from the west side of Connecticut to the east side of Delaware Bay," and various islands along the coast, " 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 said several islands, lands, and premises belonging and appertaining, with their 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," &c.; (2) under various conveyances, and deeds of confirmation from the Duke of York and the Crown, by which the part of the province of New Jersey, called East New Jersey, of which the land in suit was part, became vested in twenty-four proprietors with the same rights and title previously conveyed to the Duke of York. In 1702 the proprietors surrendered to Queen Anne only the powers of government
in the province; and the question was whether after this surrender the proprietors or their grantees, under whom the plaintiffs claimed, retained any private title in the soil covered by tide waters. In answering this question in the negative, and deciding that the surrender was as broad as the original grants, the majority of the Court regarded the dominion and property of the Crown in tide waters as entrusted to the King only for the common benefit of his subjects, and held that "the land under the navigable waters passed to the grantee as one of the loyalties incident to the power 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." Of the two judges who dissented, Thompson, J., delivered an opinion in which he maintained that, under the letterspatent, the Duke of York, and afterwards the proprietors of New Jersey, acquired the right and title of the Crown in the soil as well as the powers of government, and that the proprietors "surrendered nothing but the mere powers of government granted by the charter, retaining unaffected in any manner whatever the right of private property." See New Orleans v. United States, 10 Peters, 062; Den v. Jersey City, 15 How. 420; Smith r. Maryland, 18 How. 71, 74, 70; Barney v. Keokuk, 94 U. S. 324; Yates v. Milwaukee, 10 Wall. 497, 504; Dutton v. Strong, 1 Black, 23, 81; McCready v. Virginia, 94 U. S. 391.
3 3 How. 212, 229.
the original grants to the first proprietors, I do not see that this concession will materially influence the result. The mistake was universal, and was acted on throughout the States." In Providence Steam Engine Co. v. Providence Steamship Co.,1 in Rhode Island, Potter, J., said: "In all questions relating to our shores, a very important preliminary consideration is, whether the English common law upon this subject was ever adopted here in its full extent. By the patent of 1643, the laws were to be 4 conformable to the laws of England so far as the nature and constitution of the place will admit.' . . . The charter of 1663 used substantially the same language as the patent of 1643. ... To apply the common-law doctrine strictly would require us to hold that all the marshes in the State belong to the State; yet from the very first settlement, although flowed by the tide, they have always been recognized as private property, platted and sold as such, taxed .as such, and the State has made provision by statute for exempting them from the fence laws, for the very reason that they are overflowed by the tides. . . . The true doctrine seems to be, as the result of the decisions, that the State has the governmental control of the shores and tide waters for the benefit of the public, in order to protect the public rights of passage or other rights on the shore, and to protect the navigation. . . . During our Revolutionary War, and the distressful times which followed it, if the State had owned the fee of this valuable property, it could not have escaped a sale. Town treasurers were committed to jail for the non-payment of nearly every State tax that was ordered, and yet no town nor person ever thought of this as a property which the State owned in fee, or could sell to lessen taxation. To hold that the State holds the fee of the shore, in such a sense that it can sell all the shores, would deprive nearly half of the land in this small State of a large portion of its value derived from bounding on the shore."
§ 33. The rights of the respective States, with respect to the navigable waters within their limits, were restricted by