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Herman v. Phalen.

settled what certainty is required, it is our duty to follow their decisions on the State laws, regulating proceedings in cases of tax-sales. We accordingly order the judgment of the Circuit Court to be affirmed.

Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Ohio, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.

David B. HERMAN, PLAINTIFF IN ERROR, v. JAMES PHALEN;

SAME V. SAME.

The case of League v. De Young and Brown, (11 Howard, 185,) considered and again

established.

These two cases were brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana, and were argued together by Mr. Allen and Mr. Ovid F. Johnson for the defendant in error.

No counsel appeared for the plaintiff in error.

The points in the case were argued in the case of League v. De Young, 11 Howard, 188, to which the reporter refers.

Mr. Chief Justice TANEY delivered the opinion of the court.

These two cases have been argued together and depend upon the same principles. They were decided in the Circuit Court, before the opinion of this court was pronounced in the case of League v. De Young and Brown, reported in 11 Howard, 185. In that case, all of the questions which arise in the cases before us were fully considered and decided; and that decision is adverse to the doctrines now contended for by the defendant in error. Upon reviewing the opinion in League v. De Young and Brown, we see no reason for changing it in any respect; and these two cases must therefore be reversed, and a mandate issued to the Circuit Court, directing the judgment in each of them to be reversed, and the judgment entered for the plaintiff in error.

Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the

Rundle et al. v. Delaware and Raritan Canal Company.

Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby; remanded to the said Circuit Court, with directions to enter judgment for David B. Herman, the plaintiff in error.

GEORGE RUNDLE AND William Griffiths, Trustees Of The

ESTATE OF Join SAVAGE, DECEASED, PLAINTIFFS IN ERROR, V. THE DELAWARE AND RARITAN Canal COMPANY.

By the law of Pennsylvania, the River Delaware is a public navigable river, held by

its joint sovereigns in trust for the public. Riparian owners, in that State, have no title to the river, or any right to divert its

waters, unless by license from the Statcs. Such licensc is revocable, and in subjection to the superior right of the State, to

divert the water for public improvements, either by the State directly, or by a cor

poration created for that purpose. The proviso to the provincial acts of Pennsylvania and New Jersey, of 1771. does not

operate as a grant of the usufruct of the waters of the river to Adam Hoops and

his assigns, but only as a license, or toleration of his dam. As, by the laws of his own State, the plaintiff could have no remedy against a cor

poration authorized to take the whole waters of the river for the purpose of canals, or improving the navigation, so, neither can be sustain a suit against a corporation created by New Jerscy for the same purpose, who have taken part of the waters. The plaintiffs being but tenants at sufferance in the usufruct of the water to the two

States who own the river as tenants in common, are not in a condition to question the relative rights of either to use its waters without consent of the other. This case is not intended to decide whether a first licensce, for private emolument, can

support an action against a later licensee of either sovereign or both, who, for private purposes, diverts the water to the injury of the first.

This case was brought up, by writ of error, from the Circuit Court of the United States for the District of New Jersey.

The facts in the case are set forth in the opinion of the court.

It was argued in print by Mr. Ashmead and Mr. Vroom for the plaintiffs in error, and by Mr. John M. Read orally, for the defendants in error. There was also a printed argument upon the same side, submitted by himself and Mr. Green.

The arguments, upon both sides, contained historical accounts of the legislation of Pennsylvania and New Jersey on the subject of the River Delaware, and the various compacts and negotiations between them. It is impossible, in the report of a law case, to give an explanation of these transactions, commencing before the Revo ution. Those who may have occasion to investigate the matter minutely, would do well to obtain from the counsel their respective arguments. All that will be attempted, ,

Rundle jt al. v. Delaware and Raritan Canal Company.

in this report, will be to give an account of the points which were made.

The declaration charged the Canal Company with having,

1. Erected a dam in the River Delaware, above the works of the plaintiffs, and, by means of it, obstructed and penned up the waters of the river.

2. With digging a canal, and diverting the waters of the river into it, and so leading them into the State of New Jersey.

3. With cutting off the streams and brooks which theretofore had been tributary to the said River Delaware, and preventing them from flowing into it.

4. With using the waters, taken from the river, to supply the said canal, and to create a water power, from which they supply various mills, manufactories, and other establishments, with water, for the sake of gain.

The judgment of the court upon the demurrer being that the plaintiffs had no right of action, the counsel for the plaintiffs in tbis court assumed the following as the grounds upon which the court below founded its decision, which grounds they severally contested.

The points ruled in the court below, and of which the plaintiffs complain as being erroneous, are :

1. That the authority under which the dam of Adam Hoops has been kept and maintained in the River Delaware, since the year 1771, was not à grant, but a license, revokable at the pleasure of New Jersey alone, and, at best, impunity for a nuisance.

2. That the plaintiffs, who claim as the assignees of Adam Hoops, for the diversion of the water from their mills, cannot recover, because their works are situated in the State of Pennsylvania, and not in New Jersey, and that the claim for damages must be regulated by the rule established by the Pennsylvania courts, which rule is opposed to the one recognized in the State of New Jersey, and applied by the Supreme Court to these defendants in error in a similar case.

3. That it is not competent for the plaintiffs to question the authority of New Jersey, to take the waters of the Delaware for her public improvements, without the consent of Pennsylvania.

First Point. With respect to the first point, the counsel for the plaintiffs in error contended,

1. That the said acts were, in form, substance, and legal effect, a grant, and not a license. They then commented on the acts, and cited the following authorities :

An authority given, will operate by way of license or grant, according to its nature and the intention of the parties. Thus, in 15 Viner's Ab. Tit. Lease, (N.) Pl. 1, it is said, “ That if a

Rundle et al. v. Delaware and Raritan Canal Company.

man license me to enter into his land, and to occupy it for a year, half year, or such like, this is a lease and shall be so pleaded.” A confirmation of a title by act of Congress, (which was the least effect to be given to the acts of 1771 and 1804,) not only renders it a legal title, but furnishes higher evidence of that fact than a patent, inasmuch as it is a direct, whereas a patent is only the act of its ministerial officer. Grignon's Lessee 0. Astor, 2 Howard, 319; Sims v. Irvine, 3 Dallas, 425; Patton v. Easton, 1 Wheaton, 476; Strother v. Lucas, 12 Peters, 410. In this latter case, at page 454, it is said by Judge Baldwin, delivering the opinion of the court, “ that a grant may be made by a law, as well as a patent pursuant to a law, is undoubted, 6 Cr. 128; and a confirmation by a law, is as fully, to all intents and.purposes, a grant, as if it contained in terms a grant de novo."

2. If the acts of 1771 are to be regarded as a technical license, such license is not revocable by the parties granting it, or either of them, it being a license not executory, but executed, on the faith of which large expenditures had been incurred, previous to the alleged revocation by the State of New Jersey, in 1830, by the passage of the act chartering the Delaware and Raritan Canal.

The authorities are clear and conclusive, that a license by one man to another, to make use of his land for purposes requiring expenditures of money, and contemplating permanence, is, in effect a grant, and is not revocable in its nature. Thus, in Rerick v. Kern, 14 S. & Rawle, 267, it is said that, “permission to use water for a mill, or or any thing else that was viewed by the parties as a permanent erection, will be of unlimited duration and survive the erection itself, if it should be destroyed, or fall into a state of dilapidation.” Although a license executory may be revoked, yet a license executed cannot be. Winter v. Brockwell, 8 East, 308. Lord Ellenborough says, in this case, " that he thought it unreasonable, that, after a party had been led to incur expens, in consequence of having obtained a lictuse from another to do an act, and that the license had been entered upon, that either should be permitted to recall his license.” In Taylor v. Waters, 7 Taunton, 374, it is decided that a license granted on consideration cannot be revoked Liggins v. Inge, 7 Bingham, 682, (20 English Com. Law. 287,) decides that where the plaintiff's father, by oral license, permitted the defendant to lower the bank of a river, and to make a weir above the plaintiff's mill, whereby less water than before flowed to the plaintiff's mill, the plaintiff could not sue the defendants for continuing the weir; the court holding that the Liceuse in that case, being executed, was not countermandable

Ruadle et. al

Delaware and Raritan Canal Company.

by the party who gave it. So, in Wood v. Manly, 11 Adol. & Ellis, 31, (39 Eng. Com. Law 19,) it was held that a license to enter upon land to take away property purchased thereon, was part of the consideration of the purchase, and could not be revoked. The case of Webb v. Paternosier, (Palmer, 151,) asserts the general principle, that an executed license is not countermandable. Rerick v. Kern, (14 S. & Rawle, 267,) was the case of a license to use a water power, given without any consideration, and held not revocable. The court said the license 6 was a direct encouragement to spend money," and "it would be against all conscience to annul it," and further, that “the execution of it would be specifically enjoined; and that the party co whom the license was granted would not be turned round to his remedy for damages." “ How very inadequate it would be. in a case like this,” says the court, “is perceived by consider: ing that a license, which has been followed by the expenditure of ten thousand dollars, as a necessary qualification for the enjoyment of it, may be revoked by an obstinate man who is not worth as many cents.” Again, it is remarked—“having had in view an unlimited enjoyment of the privilege, the grantee has purchased, by the expenditure of money, a right indefinite in point of duration.”

3. If the joint acts of 1771 and 1804, are ever to be regarded as a revocable license, and not as a grant, such license has never been actually revoked by both or either of the State legislatures. The act of 1830, by which the Delaware and Raritan Canal Company was chartered by the State of New Jersey, contains no such provision, and a revocation by implication will not be inferred where so great a wrong would be perpetratea on an individual.

4. Admitting that the State of New Jersey, by the act chartering the Delaware and Raritan Canal Company, intended to revoke the grant or executed license made to Adam Hoops, and those claiming under him, it was incompetent for that State to

do so.

If the joint act of the legislatures of the two States be a grant, or, what is the same in legal effect, an executed license, then that grant or executed license is a contract within the meaning of the constitution, and cannot be impaired by subsequent legislation. Fletcher v. Peck, 6 Cranch, 87; Terret v. Taylor, 9 Cranch, 43. Where a legislature has once made a grant; it is as much estopped by it as is an individual. Such a grant amounts to an extinguishment of the right of the grantor, and a contract not to reassert that right. Id. It is a principle applicable to every grant that it cannot effect preëxisting titles. Although a grant is conclusive on its face, and cannot be con

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