Attorney-General v. Delaware and Bound Brook Railroad Co.

name of a proper person as such. But this objection must not prevail. In equity, as in the law court, the Attorney-General has the right, in cases where the property of the sovereign or the interests of the public are directly concerned, to institute suit, by what may be called civil information, for their protection. The state is not left without redress in its own courts because no private citizen chooses to encounter the difficulty of defending it, but has appointed this high public officer, on whom it has cast the responsibility and to whom, therefore, it has given the right of appearing in its behalf and invoking the judgment of the courts on such questions of public moment. The same point was lately raised in the Supreme Court, (Attorney-General v. Del. & B. B. R. R. Co., 9 Vroom 282,) and there decided in accordance with the views of the Chancellor and this court in the present case.

The first position taken by the Attorney-General in support of his prayer is, that the bridge in controversy stands upon the land of the state, to the occupancy of which the defendant has no title. The want of title from the state is conceded; but that the land is the property of the state, the defendant denies. The bridge is being erected across the Delaware river from a point in the township of Ewing, Mercer county, New Jersey, to a point in the township of Lower Makefield, Bucks county, Pennsylvania, and rests upon piers standing in the bed of the river. This part of the river is above the ebb and flow of the tide, which does not pass beyond the falls of Trenton, some few miles below; and the claim on behalf of the state is, that before the revolution, the crown, and since the revolution, the state, as sovereign, has been proprietor of this and all other portions of the bed of the Delaware river.

Both parties admit that prior to March 12th, 1664, the title was in the King of England. On that day, Charles II. issued to his brother James, Duke of York, letters patent, by which he granted unto the duke, his heirs and assigns, to be held of the king, his heirs and successors, in free and common socage, a large territory in America, one tract of which is therein described as "the said river called Hudson's river, and all the

Attorney-General v. Delaware and Bound Brook Railroad Co.

lands from the west side of Connecticut to the east side of

premises belonging and appertaining." These letters also conferred upon the duke, his heirs and assigns, certain powers of government, to be exercised over said territory and its inhabitants, reserving, however, the sovereignty of the king. Leaming & Spicer, p. 3.

Under this grant, it is insisted that the easterly margin of the Delaware bay and river, throughout its entire length, is the westerly boundary of the land conveyed; that the words, "the east side of Delaware bay," especially in a grant from the crown, cannot, by construction, be extended below highwater mark; that their use shows the intention of the king to reserve all the land under water in the bay and river.

Several suggestions seem to me pertinent to the proper interpretation of this grant.

While these letters patent were indeed issued to a subject, that subject was the chief subject of the realm, and the heir presumptive to the throne. The purpose of the king was not the mere grant of private interests, but the establishment of a commonwealth, with ample powers of local government and defence. That no special reason existed in the royal mind for not parting with the title to the bed of streams, so far as that title could legally be separated from sovereignty, is made clear enough by the fact that the great Hudson river is expressly granted, as also all the other rivers within the territory described; and I think no motive can be suggested for the retention of the bed of the Delaware, which would not apply with equal force to the Hudson and Raritan. Indeed, prior to 1648, letters patent had been issued, embracing the whole of this river and bay, in the province of New Albion. There is, therefore, no antecedent presumption against the grant of the river.

And looking at the very words of the conveyance, "the east side of Delaware bay," what is observable? A bay is an

Attorney-General v. Delaware and Bound Brook Railroad Co.

arm of the sea, distinct from a river. And it is certain that in 1664, Charles and his advisers could not have been under the impression that the whole of the Delaware was a bay. In 1648, persons interested in the encouragement of emigration to New Albion, had published, in England, a circular embracing a letter from Robert Evelyn, in which he describes a trip up the Delaware, or Charles river, to a point about thirty miles above the falls, which, he says, were about sixty-five leagues from the sea. He writes that no part of Delaware bay extended as far as the fortieth degree of north latitude, but that a ship of one hundred and forty tons might go up to the falls. Smith's History of New Jersey, p. 28, note.

For years before the date of these letters patent, the shores of the southerly portions of the Delaware had been inhabited by English, Swedes, and Dutch, and doubtless the adventurous spirit of the times had carried many others besides Evelyn among the Indian kings that hunted along its northerly banks and it would be difficult to believe that, in spite of the curiosity about the American settlements which pervaded all classes of Europeans, in spite of the peculiar interest which the King and his councilors would feel regarding them, not only while he was upon the throne, their actual possessor, but while he lingered about the courts of the continent, pondering upon the extent and value of those realms he owned but could not occupy, the royal advisers were ignorant of the existence of a river north of, and emptying into, Delaware bay.

It seems to me, therefore, that although the very words might limit the grant to the east side of Delaware bay, so far as it is a bay, yet beyond that, the westerly boundary, even as the whole of the northerly boundary of this tract, is matter of inference, not of expression.

The words, then, being inconclusive as to the boundary along the river, much light may, I think, be thrown upon the subject by ascertaining the practical interpretation which, in those early times, was placed upon the grant.

By lease and release, dated June 23d, 24th, 1664, less than four months after the king's patent, the Duke of York con

Attorney-General v. Delaware and Bound Brook Railroad Co.

veyed to Carteret and Berkeley, their heirs and assigns, a tract of land which they regarded as included in the king's letters, and which they described as "bounded on the east, part by the main sea, and part by Hudson's river, and hath upon the west, Delaware bay or river, and extendeth southward to the main ocean, as far as Cape May, at the mouth of Delaware bay; and to the northward, as far as the northernmost branch of the said bay or river of Delaware, which is forty-one degrees and forty minutes of latitude." Leaming & Spicer, P. 8.

These deeds do not limit the territory by the side of the river; and although James was the grantee, not the grantor, of the original conveyance, yet he was expecting the inheritance of the grantor's estate, with all its rights and prerogatives unimpaired, and he does not stand in history as a prince wont to abate any jot of regal claim, either before or after his own coronation. In these deeds, it is provided that the tract of land granted shall thereafter be called New Cæsarea, or New Jersey; and Charles, in a letter of December 9th, 1672, to the deputy governor of the province of New Jersey, speaks of his having granted the propriety thereof to Berkeley and Cateret, obviously referring to and approving the title to the entire territory derived through the Duke of York. Leaming & Spicer, p. 38.

I refer, also, to the following instruments, as indicating the Delaware river, and not the east side of the river, as the westerly boundary of the province of New Jersey, and recognizing as valid the title of the proprietors to the whole province so bounded: the lease and release of July 28th, 29th, 1674, from the Duke of York to Carteret, (Leaming & Spicer, p. 46); the king's letter of June 13th, 1674, for the encouragement of the settlement of the province, (Leaming & Spicer, p. 49); the quinquepartite deed between Carteret, Penn, Lawry, Lucas and Billinge, dated July 1st, 1676, dividing the province into East and West New Jersey, (Leaming & Spicer, p. 61); the grant from the Duke of York to Penn and others, for West Jersey, dated August 6th, 1680, (Leaming & Spicer, p.

Attorney-General v. Delaware and Bound Brook Railroad Co.

141); the Duke of York's release to the twenty-four proprietors of East Jersey, dated March 14th, 1682-3, and the the king's confirmation of this release, dated November 23d, 1683, (Leaming & Spicer, p. 151.) And it may be affirmed of the memorials preliminary to the surrender to Queen Anne, in 1702, of the surrender itself, and of the instructions thereupon issued to Lord Cornbury, that they all, without nicer specification, refer to the grant of the Duke of York as being fully warranted, so far as territory was concerned, by the letters patent of the king.

I think, therefore, that to restrict the king's grant to narrower limits than those indicated by the lease and release of the Duke of York, is sticking in the bark, and ascribing to the conveyance a meaning which neither of the parties to it, nor any, in early times, claiming under either of them, considered or acted upon as a just interpretation.

The question then arises as to the effect of a grant by the king of lands bounded upon a river. As early as the second year of Henry VII. it was resolved that the king's grant should pass nothing by implication. 2 Henry VII. 13. And in the case of the Royal Fishery of the Banne, (Davies 149,) the Chief Judges of the Privy Council, applying this principle, considered that letters patent, granting the territory of Rout adjoining to the river Banne, and all fisheries in or within said territory, except three parts of the fishery of the river Banne, did not convey to the patentee the fourth part of this fishery below tide-water, for they said, the Banne is a navigable stream where the tide ebbs and flows, and the fishery in it is a royal fishery, which is not appurtenant to land, but is a fishery in gross, and parcel of the inheritance of the crown by itself, and general words in the king's grant shall not pass such special royalty. But the same judges, in the same case, also resolved that in every river where the tide did not ebb and flow, and in the fishery of such river, the ter-tenants on each side have an interest of common right; and every such river appertains to the owners of the soil where it hath its course, and if such river runneth between two manors and is