Attorney-General v. Delaware and Bound Brook R. R. Co. also insists that the general railroad law does not, in terms or by implication, confer on the defendants the right to erect any bridge over the Delaware; that the erection and construction of the bridge is a direct and positive infraction of the compact of 1783, between the states, and that the power to erect a bridge over the Delaware can only be conferred by concurrent legislation of both states, and that neither state can, of its own authority, authorize a corporation to place piers, erect a bridge, take tolls, and construct a highway over the river, but such franchise can only be conferred by concurrent legislation; that not only has there been no concurrent legislation in this case, but there has been no grant of the franchise to the defendants from either state; that the grant of the franchise cannot be implied from any act or law of this state, and that the structure, therefore, is without authority of law, and an invasion of the sovereignty of this state, and if the erection and construction be permitted, it will be a purpresture, and will be liable to be abated as such. The information states that the erection of the bridge at the point where it is located will greatly imperil, obstruct, and interrupt the use of the river as a highway, and that the bridge will be a common nuisance to the people of this state. It further alleges that the defendants, on application to them, have refused to remove the structure, or to desist from their purpose of finishing and using it. The defendants have answered fully. The answer insists, and on the argument it was urged, that the information cannot be maintained in its present form, inasmuch as it is exhibited without a relator. This objection is not well taken. The practice is settled. Where, as in this case, the suit immediately concerns the rights of the state, the information is generally exhibited without a relator. Laussat's Fonblanque, p. 5, n; Mitford's Plead., by Jeremy, 99; 1 Newland's Prac. 55; Blake's Chancery Prac. 40; Cooper's Eq. 101, 102. While in practice it is usual to name a relator, and the contrary course may tend to oppression, since, if there is no relator, the defendant can recover no costs, still in matters of Attorney-General v. Delaware and Bound Brook R. R. Co. purely public concern, as where the property of the state, owned by it in its political capacity, or where public rights in which no merely private interest is involved, are in question, the courts are open to the state without requiring security for costs. The information is filed to remove out of the Delaware the viaduct built by the defendants and the North Pennsylvania Railroad Company, (about one-half by each company), across the river near Yardleyville, above the falls of Trenton, and therefore above tide-water. The Attorney-General claims that the structure is a purpresture; that it is a public nuisance, and that its maintenance and use for the purposes for which it is designed will be a usurpation of a franchise, and will be a violation of the compact of 1783, between this state and Pennsylvania. The defendants, on the other hand, allege that the land on which the viaduct is built is not the property of the state, but is private property; that, by the provisions of the general railroad law, under which they were incorporated, they are authorized to construct the bridge in question, and that its erection and maintenance are no violation of the compact, and that consent to its erection has been given by the State of Pennsylvania. The royal charters for the territories in which what are now the States of New Jersey and Pennsylvania were embraced, bounded them on the Delaware; that in which this state was included, by "the east side" of the river, and the other, "on the east" by the river. The crown was advised in 1721 that these grants did not include the river, or any part of it, or the islands therein, and that the right to them remained in the crown. Chalmers Opinions 90. By the treaty of peace between the United States and the King of Great Britain, in 1783, the latter relinquished all claims to government, propriety and territorial rights in the former. The consequence was that the river became, by conquest, the boundary between the states; and being such, and the original property being in neither of them, and there being then no Attorney-General v. Delaware and Bound Brook R. R. Co. convention between them in regard to it, each state, by the rule of international law, had dominion to the middle of the stream. At the close of the Revolution, the common law of England was in force in this state; for, by the constitution of July 2d, 1776, it was provided that that law should remain in force in New Jersey, until altered by the legislature. By the common law, the ownership of the soil of all rivers not navigable, that is, in which the tide does not ebb and flow, is in the riparian owners. In the case of public rivers which, though not navigable in the common law sense of the term, are, nevertheless, navigable in fact, the ownership of the soil is in the riparian owners, subject to the public right of navigation. And so, too, though the river be declared (as was the Delaware, by act of the colonial legislature of New Jersey in 1771, [Allinson's Laws 347] and the compact between this state and Pennsylvania in 1783) to be a public or common highway. Juxon v. Thornhill, Cro. Car. 132; Hale's De Jure Maris, c. 3; Harg. Law Tracts, p. 9; Lord Fitzwalter's case, 1 Mod. 105; 3 Kent's Com. 427; Angell on Watercourses, $$ 535, 545. It has been held, even in the case of the great river Mississippi, that the common law, and not the civil law, governs; that that river, above the ebb and flow of the tide, is not navigable in the common law sense of the term, and that the riparian owner owns the soil to the middle of the river; and further, that the act of Congress establishing the river as the western boundary of the Mississippi territory, and adopting the common law for the government of that territory, fixed the boundary line at the middle of the river, and that, therefore, the right of riparian owners on the east side of the Mississippi must be determined by the common law; and still further, that their rights to the soil of the river, or to the use of the bank, are not affected by the fact that the act of Congress makes the river a common highway, free to every citizen without tax or duty. Morgan v. Reading, 3 S. and M. 366; Magnolia v. Marshall, 39 Miss. 110. In Ohio it has been adjudged that the ordinance of 1787, for the government of the North Western territory, which declares Attorney-General v. Delaware and Bound Brook R. R. Co. that the navigable waters leading into the Mississippi shall be common highways, and forever free, does not prevent the application of the common law principle that he who owns the bank owns to the middle of the river, subject to the easement of navigation. Adms. of Gavit v. Chambers, 3 Ohio 495. See, also, Middleton v. Pritchard, 3 Scammon 510. A river may be navigable below the ebb and flow of the tide, in the sense of the common law, and, in fact, navigable above, and the question of boundary in respect to lands adjoining it will be determined by one principle above and another below tide-water. Though, in some of the United States, (among them Pennsylvania), the civil law doctrine as to the ownership of the soil has been adopted as to great rivers not navigable in the common law sense, in many of them the common law doctrine governs the subject. It governs it here. Arnold v. Mundy, 1 Halst. 1; Gough v. Bell, 2 Zab. 441 ; Bell v. Gough, 3 Zab. 624; Martin v. Waddell, 3 Harr. 495; Rundle v. Del. and Rar. Can. Co., 1 Wall., Jr., 275. In the last case it was applied to the Delaware. The court there said: "The river Delaware is the boundary between the States of Pennsylvania and New Jersey. The tide ebbs and flows to the part of the Trenton Falls where the Trenton bridge crosses the river; above that point it is a fresh water stream. vious to the Revolution, the channel and waters of the river below Trenton, so far as the river was navigable, in the common law sense of the term, were vested in the King of England. The grant, both for New Jersey and for Pennsylvania, was bounded by the river Delaware. So far as the tide ebbed and flowed, the proprietors had no title to the bottom of the river below low water mark. But above the bridge and the flow of the tide, the proprietors of. each province held ad filum medium aquæ, by the established principles of the common law, according to which their respective grants must be construed. So far as the river was the property of the crown, it devolved on the two states by the Revolution and the treaty of peace with Great Britain. Immediately after the treaty of peace, the States of Pennsylvania and New Jersey entered into Pre Attorney-General v. Delaware and Bound Brook R. R. Co. the compact of April, 1783, making the Delaware a common highway for the use of the states." See, also, S. C., 14 How. 80. The state has no jus privatum in the soil of the Delaware above tide-water; that is in the riparian owners, subject to the public easement of navigation, and to such regulation by the legislature of the waters as the public right of navigation may require. The right of the riparian owners to the soil of the river is subordinate to the right and power of the state to use and appropriate the river to the public good in promotion of navigation; and, as to the jurisdiction and power of the state over it, the river above tide water is to be regarded as a navigable stream. Vattell, Book 1, §§ 249, 272; Binney's Case, 2 Bland 99; Commissioners of Homochitto River v. Withers, 29 Miss. 21; Woolrych on Waters 46. There is, therefore, in this case, no purpresture, and the defendants have not violated the proviso of the thirty-sixth section of the general railroad law, which prohibits corporations formed under that law from taking any land under water belonging to the state, unless the consent of the riparian commissioners shall first have been obtained. But if it be merely doubtful whether there is a purpresture or not, an injunction asked for on the ground of purpresture will not be granted; for, to warrant an injunction in such case, it must be clear that there is a purpresture. Story's Eq. Juris., § 924 a; City of Rochester v. Curtiss, Clarke 343. It is argued on behalf of the state, that this view of the ownership of the soil of the river will give to the riparian owner the right of fishery in front of his land, and that the terms of the compact of 1783, between this state and Pennsylvania, forbid such construction. The provision of the compact, on the subject of fisheries, is that "each of the legislatures of said states shall hold and exercise the right of regulating and guarding the fisheries in the said river Delaware, annexed to their respective shores, in such manner that the said fisheries may not be unnecessarily interrupted during the season for catching shad, by vessels riding at anchor on the fishing ground, or by persons fishing under a claim of |