Attorney-General v. Delaware and Bound Brook R. R. Co. had been put upon the compact of 1783. It was presented by the chairman, Isaac H. Williamson, and it distinctly asserts the right of each state to authorize, without the concurrence of the other, the erection of mills and wing-dams on its own shores, and within its own jurisdiction, not injurious to' navigation. Min. of Assembly of 1817. And still further, the commissioners appointed by this state to settle, in conjunction with those appointed by Pennsylvania, the differences above mentioned, were William S. Pennington, David Thompson and Elliot Tucker. In their first written communication, dated September 15th, 1817, to the commissioners of Pennsylvania, they say: "It appears to us that the respective legislatures of Pennsylvania and New Jersey, notwithstanding the agreement of 1783, have a right to give their assent to, and to regulate by law, the erection, on their respective shores, of all useful piers, docks, wharves, banks, and even mill-dams, or other buildings for the beneficial use of the respective shores; but that in the exercise of this authority they are bound, as well by public law as by the agreement of 1783, to preserve the navigation of the river. We consider the agreement of 1783 nothing more than a declaration that the river Delaware, within the limits prescribed, then was, and should continue to be, a public navigable river, in contradistinction to a private river, and that it must be subject to the same law as all other public navigable rivers that are deemed public highways. We apprehend it to be a mistaken opinion, however extensively it may have spread itself, that the whole bed of the river is sacred, and cannot be touched without a violation of the rights of the states we represent. The soil of the river to the midway thereof, at least at and above the falls of Trenton, if not below, is vested by law in the owners of the adjoining land. It is true the same principle of law that vests this private right in the owners of the adjacent soil, also vests in the public the rights of unobstructed navigation. We admit that this private right must be so exercised as not to injure the public right of navigation. It is not every erection on the bed of the river that becomes a nuisance, and is to be Attorney-General v. Delaware and Bound Brook R. R. Co. construed as a violation of the agreement of 1783; if this was the case, all the piers and docks erected in the river must be destroyed. Docks and wharves judiciously placed on the river, are useful to commerce; in which case they are innocent and lawful erections. But, should they become so far extended as to obstruct navigation, they would become public nuisances, be unlawful, and liable to prostration. We apply the same reasoning to mill-dams, and other erections on the river. Their lawfulness or unlawfulness depends on the fact whether they are or are not obstructions to navigation. We have been more particular in disclosing our opinions on this head, that we might, at one view, enable you to understand the reasoning that led to certain legislative acts of New Jersey relative to wing-dams." The commissioners close a subsequent communication to the commissioners of Pennsylvania, dated September 17th, 1817, as follows: "Whether the English doctrine, conferring the bed of the river to the middle thereof, on the owners of the adjacent soil, is adopted in this country or not, is a question wholly immaterial in the present inquiry. Whether it is in the owners of the adjoining land, the representatives of the original proprietors, or the state, is a question to be settled in each state by the laws thereof, and has no bearing on the subject under investigation. It is sufficient that it is in one or another of them. We contend that the agreement of 1783 did not touch the soil, but was confined to questions of jurisdiction and navigation, and that the bed of the Delaware river to the midway thereof, from the first settlement of the country to this hour, has belonged to the State of New Jersey, or some of the citizens thereof, and that the Commonwealth of Pennsylvania never had, and, as we believe, never pretended to have any title thereto." It appears from these public documents, which respectively have the sanction of two eminent names of the past generation, the first Governor Pennington and Governor Williamson, that thirty-five years after the making of the compact, the theory of joint ownership of the river was not entertained by Attorney-General v. Delaware and Bound Brook R. R. Co. this state, and was not regarded as an implication from the compact. It has never been recognized since then. The act of March 1st, 1820, to "prevent obstructions to the navigation of the river Delaware," (Rev. L. 708,) cited in support of it, does not recognize it. The objects and purposes of the compact were merely to secure the administration of justice, and to secure to the contracting parties the use of the river as a public highway. The provision for concurrent jurisdiction had reference to the former only. It was a police regulation merely, and gave to neither of the states any dominion or authority whatever over, or right in, or control of, that part of the soil of the river which, by the law of nations, belonged to the other. The construction put by the Court of Appeals of New York, in The People v. The Central Railroad Co. of New Jersey, 42 N. Y. R. 283, upon the compact made in 1833, between this state and the State of New York, (Nix. Dig. 965,) is in point. By the third article of that compact it was declared that New York should have and enjoy exclusive jurisdiction of and over all the waters of Hudson river lying west of Manhattan Island, and to the south of the mouth of Spuytenduyvel creek, and of and over the lands covered by the said waters, to the low water mark on the westerly or New Jersey side thereof, subject to certain designated rights of property and jurisdiction of New Jersey, among which was the exclusive right of property in the land under water lying west of the middle of the bay of New York, and west of the middle of that part of Hudson river which lies between Manhattan Island and New Jersey, and exclusive jurisdiction of and over the wharves, docks, and improvements made, or to be made, on the shore of this state, and of and over all vessels aground on the shore, or fastened to any such wharf or dock, except that such vessels were to be subject to the quarantine or health laws of New York. The suit was brought by the Attorney-General, in behalf of the state, to abate as nuisances, and cause the removal of certain wharves, bulkheads, piers, and railroad tracks, and other erections which the defendants had placed in the harbor of New York, and extending into Attorney-General v. Delaware and Bound Brook R. R. Co. the harbor and the Hudson river about a mile from the New Jersey shore. The complaint claimed that the erections were within the limits and jurisdiction of New York, and were an obstruction to navigation, and injurious to the public health, and were constructed without lawful authority. They were all placed on the west of the designated boundary line. It was held that the jurisdiction conferred upon New York over the waters of the river and bay was a qualified and limited jurisdiction, for police and sanitary purposes, and to promote the interests of commerce in the use and navigation of those waters, and was not designed to confer or create control over the lands or domains of New Jersey, or to give to New York any right to interfere with the complete political or governmental jurisdiction of this state, as a sovereign state, of and over her own soil, and its appurtenances, and of and over every description of property of any appreciable value, within her territorial limits. The appositeness of the conclusion expressed in that case to the case now under consideration, will be all the more noticeable when it is observed that by the compact just referred to, exclusive jurisdiction was 'given to New York, not only over the waters, but over the lands covered by the waters, while, by the compact with Pennsylvania, concurrent jurisdiction is given to the contracting parties, and such jurisdiction is expressly confined to the waters. The compact of March 28th, 1785, between Maryland and Virginia, among other things, provides that the Potomac river shall be considered as a common highway for the purposes of navigation and commerce to the citizens of those states, and of the United States, and to all other persons in amity with Maryland and Virginia, trading to or from either of those states; and it establishes concurrent jurisdiction in those states. over that river, and provides for concurrent legislation; also for the preservation of fish, and for the performance of quarantine, and keeping open the channel and navigation by preventing the throwing out of ballast, or making any other obstruction. Laws of Maryland, 1785, c. 1. It has been held Attorney-General v. Delaware and Bound Brook R. R. Co. that the compact was confined exclusively to matters of jurisdiction and navigation, and left the territorial rights of the parties to it untouched. Binney's Case, 2 Bland 99, 126, 127. The compact of 1783 gives no jurisdiction to Pennsylvania over the soil of the Delaware within the territorial limits of this state, nor does it confer on her any right therein. It gives her a right to complain of, and be relieved against, any structure or other occupation of the river on the soil of this state injurious to the free navigation of the river. But it is insisted that the bridge is at least an unauthorized erection in a public highway, and is therefore a public nuisance, and that it is a public nuisance in fact, because it will interfere with the navigation of the river. In an action to remove an erection in a public river, on the ground that it is an injury to the jus publicum, the common right of navigation, it must appear that a nuisance in fact exists; even though the erection be an encroachment on the soil of the sovereign. Hale De Portibus Maris, chap. 7; Harg. Law Tracts, 85. The case of The People v. Vanderbilt, 26 N. Y. 287, which was much relied upon by the state on the argument of this motion, was a case of purpresture on the soil of the state in the harbor of New York. The case of The City of Rochester v. Erickson, 46 Barb. 92, cited on the part of the state, was an action for a perpetual injunction to restrain the defendant from erecting a foundation wall necessary for the support of his building, situated in Rochester, on the bank of the Genesee river, on the ground that the building projected into the channel of the river, and interrupted the natural flow of the water in time of floods, contributing to the overflow of the water at such seasons into the streets of the city, and was a public nuisance. The decision is put upon the ground of nuisance. In City of Rochester v. Curtiss, Clarke 343, (1840), an application for an injunction, under similar circumstances, was denied on the ground that, as the abutment of the bridge across the river then stood, the structure complained of in that case, though in the stream, was no nuisance. In 1866, when City of Rochester v. Erickson was decided, the VOL. XII. B |