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

troverted, yet if the thing granted is not in the grantor, no right passes to the grantee. City of New Orleans v. Armas, 9 Peters, 224 ; New Orleans v. United States, 10 Peters, 662; Lindsey

Lessee of Miller, 6 Peters, 666. Again : If the franchise and privileges, secured to the plaintiffs by the joint acts of 1771, are the subjeet of legislative revocation, the revocation must certainly be as extensive as the license accorded. It must, to be effectual, be the joint act of both legislatures, and not the separate act of either. Pennsylvania was no party to the charter granted by New Jersey to the defendants. Indeed, she refused to become such, on the terms proposed by her. In many respects, this case resembles that of the Chesa. peake and Ohio Canal Company v. The Baltimore and Ohio Railroad Company, 4 Gill & Johns. 1. This was the case of a contest between the plaintiffs, who claimed under the joint acts of the States of Maryland and Virginia and the United States, and the defendants, who claimed part of the same franchise under a separate act of the State of Maryland. It was held, that neither Maryland nor Virginia, without the consent of the other, could impair a charter granted by their previous joint legislation, nor could they do so even jointly.

Second Point. The second proposition ruled by the learned Judge below, was, 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 Pennsylvania courts, which rule is opposea 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.

1. The accuracy of this position is denied; because , the action, having been instituted in the Circuit Court of New Jersey, against a New Jersey corporation, to recover damages consequent upon the erection of a public work exclusively within her own soil, the laws of New Jersey and the decisions of its Supreme Court, must furnish the rule of decision as to the extent of the liability of this corporation for the act complained of, and not the laws and decisions of Pennsylvania, as to the liability of Pennsylvania corporations.

2. If the plaintiffs claim for damages is to be regulated by the decisions in Pennsylvania, there is no case of binding authority in the adjudications of Pennsylvania, which rules this point against them; the doctrine not going to the extent supposed by the learned Judge.

Third Point. The third point ruled by the learned Judge below, is, “ that it is not competent for the plaintiffs to question

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

the authority of New Jersey to take the waters of the Delaware River for her public improvements, without the consent of Pennsylvania, the chennel and waters of this river being vested in the two States, as tenants in common, and no one can question the authority of either to divert the water, but the other."

(These points were examined and contested.)

It has been before mentioned, that the briefs of the counsel contained references to numerous historical documents. That filed on the part of the defendants in error was very elaborate, and Mr. Read referred to them in his oral argument. The summing up was as follows:

We have thus presented a chronological detail of the history of the Delaware, and of the legislative negotiation, and executive action of both States in relation to the river, its navigation, and the various uses of its water for canal or mill purposes ; and we think it can leave no doubt, in any dispassionate mind, that the plaintiffs in error have no title whatever to claim damages from the Delaware and Raritan Canal Company, for taking water from the river for the use of its canal, under a direct and positive authority granted by the legislature of New Jersey.

Adam Hoops's dam, uniting the main land with Bird's Island, and extending from the head of it into the main channel of the river, and perhaps one other dam on the Pennsylvania side, were erected by the owners of the fast land, prior to 1771, without any authority whatever, either from the crown, or the provincial government. Now, these erections being in the river, and beyond the low-water mark, whether the tide ebbed and flowed there or not, or whether the river was then vested in the crown or the proprietaries, were, by the unquestioned law of Pennsylvania, nuisances, and could have been abated by individuals, and certainly by the authorized agents of the government.

The law of Pennsylvania is well stated by Mr. Justice Grier, in this case. “ But the law of Pennsylvania," says the learned Judge, “by which the title and rights of the plaintiffs must be tested, differs materially from that of England and most of the other States of the Union. As regards her large fresh-water rivers, she has adopted the principles of the civil law, in p ference to that of England." Rundle v. Delaware and Raritan Canal Company, Wallace, Jr. 297.

In the case of Carson v. Blazer, the Supreme Court of that State, decided that the large rivers, such as the Susquehanna and Delaware, were never deemed subject to the common law of England applicable to fresh-water streams; but they are to be treated as "navigable rivers ;" that the grants of William Penn, the proprietary, never extended beyond the margin of the

VOL. XIV.

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

66

river, which belonged to the public; and that the riparian owners have, therefore, no exclusive right to the soil or water of such river, ad filum medium aquæ.

These principles are fully sustained by all the Pennsylvania cases down to the present time, which are cited below, and which also exemplify the doctrine that mere tolerations or licenses on navigable streams, are always in the power of the sovereign, and can be withdrawn, at any moment, without any violation of the constitutional provision.

These nuisances were in existence at the passage of the act of 9th March, 1771, and, under its general terms, the commissioners named in it, would have been obliged to abate them at once, as artificial obstructions to the navigation, except for the proviso in the 7th section, which prohibits the commissioners, therein appointed, from removing or altering the same. The same observation applies to the New Jersey act of the same year.

“ Buț,” to use again the language of the learned Judge below, we can discover nothing in the nature of a grant in the words of this proviso. It amounts to no more than the present toleration of a nuisance, previously erected, or, at most, to a license revocable at pleasure. The doctrine of the cases which we have just quoted, applies to it with full force and conclusive effect; nor can the plaintiff claim by prescription against the public for more than the act confers on him, which, at best, is but an impunity for a nuisance.” 2 Binn. 475; Brown v. Commonwealth, 3 S. & R. 273; Shrunk v. Schuylkill Navigation Co. 14 S. & R. 71; Bacon v. Arthur, 4 Watts, 437; Couvert v. O'Connor, 8 Watts, 470; Ball v. Slack, 2 Wharton, 508, 538; Monongahela Nav. Co. v. Coons, 6 W. & S. 101; Susquehanna Canal Co. v. Wright, 9 Id. 9; Commonwealth v. Church, 1 Barr, 105; Fisher v. Carter, 1 Wallace, Jr. 69; Mayor v. Commissioners of Spring Gardens, 7 Barr, 348; Reading v. Commonwealth, 1 Jones, 201; M'Kinney v. Monongahela Nav. Co. 2 Harris, 66; Henry v. Pittsburg, 8 W. & S. 85; O'Connor v. Pittsburg, Sept. 1851, MS.; Wallace, Jr. 300, 301.

But if there be any doubt on this subject, it is removed by a reference to the agreement of 26th April, 1783, between the two sovereign States of New Jersey and Pennsylvania, then recog. nizing no common superior, and not affected by any provision afterwards contained in the Constitution of the United States.

The acts of 1771 were temporary in their character, and all operations under them ceased from the commencement of the Revolutionary War. The compact of 1783, which is perpetual in its operation, declared “the River Delaware, from the station point, or north-west corner of New Jersey northerly, to the place

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

upon the said river where the circular boundary of the State of Delaware toucheth upon the same, in the whole length and breadth thereof, is, and shall continue to be and remain a common highway, equally free and open for the use, benefit, and advantage of the said contracting parties."

Such language admits of no dispute. It is a complete and total revocation of all license or toleration, or grant of any

kind to any dams or works erected on the Pennsylvania or Jersey side of the river, which were nuisances ab origine.

It cannot be supposed that two or more original nuisances were saved out of the general and comprehensive terms of the compact, and that they are, to subsist to all future time as obstacles to any use of the river, by either or both States, which may in any manner affect the works thus placed on the soil and in the waters of the public.

This view is supported by the unbroken legislation of Pennsylvania particularly — by the ground taken by her commissioners in 1817, and virtually recognized by those of New Jersey, and by the subsequent agreements of 1829 and 1834, entered into by the commissioners of both States, which treated these works as nuisances, and as not to be regarded in any disposition to be made of the waters of the river, whether by the erection of dams, or for the supply of canal or water power.

They were in fact treated as if they had no legal existence. Can such a title give a claim for damages upon a company incorporated by a sovereign State of the confederacy?

It is also clearly “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. The channel and waters of this river are vested in the two States, as tenants in common, as we have already seen ; and no one can question the authority of either to divert its waters but the other. Pennsylvania was the first to seize on a portion of their joint property, for her separate use, and is estopped by her own act from complaint against New Jersey, who has but followed her example. Besides this, mutual consent may be presumed from mutual acquiescence. At all events, the plaintif, who is shown to have no.title to the river, or any part of it, and whose toleration or license could at best only protect him from a prosecution, is not in a situation to dispute the rights of either, or claim compensation for a diversion of its waters, for the purpose of the public improvements of either of its sovereign owners."

Mr. Justicc GRIER delivered the opinion of the cout.
The plaintiff's in error, who were plaintiffs below, are owners

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

of certain mills in Pennsylvania, opposite to the city of Trenton, in New Jersey. These mills are supplied with water from the Delaware River, by means of a dam extending from the Pennsylvania shore to an island lying near and parallel to it, and ex. tending along the rapids to the head of tide water.

The plaintiffs, in their declaration, show title to the property under one-Adam Hoops, who had erected his mill and built a dam in the river previous to the year 1771. In that year, the Provinces of Pennsylvania and New Jersey, respectively, passed actş declaring the River Delaware a common highway for purposes of navigation up and down the same, and mutually appointing commissioners to improve the navigation thereof, with full power and authority to remove any obstructions whatsoever, natural or artificial; and subjecting to fine and imprisonment any person who should set up, repair, or maintain any dam or obstruction in the same, provided, “ that nothing herein contained shall give any power or authority to the commissioners herein appointed, or any of them, to remove, throw down, lower, impair, or in any manner to alter a mill-dam erected by Adam Hoops, Esq., in the said River Delaware, between his plantation and an island in the said river, nearly opposite to Trenton; or any mill-dam erected by any other person or persons in the said river, before the passing of this act, nor to obstruct, or in any manner to hinder the said Adam Hoops, or such other person or persons, his or their heirs and assigns, from maintaining, raising, or repairing the said dams respectively, or from taking water out of the said river for the use of the said mills and waterworks erected as aforesaid, and none other."

The declaration avers, that by these acts of the provincial legislatures, the said Hoops, his heirs and assigns, became entitled to the free and uninterrupted enjoyment and privilege of the River Delaware for the use of the said mills, &c., without diminution or alteration by or from the act of said Provinces, now States of Pennsylvania and New Jersey, or any person or persons claiming under them or either of them. Nevertheless, that the defendants erected a dam in said river above plaintiffs' mills, and dug a canal and diverted the water, to the great injury, &c.

T'he defendants are a corporation, chartered by New Jersey, for the purpose of "constructing a canal from the waters of the Delaware to those of the Raritan, and of improving the navigation of said rivers." They admit the construction of the canal, and the diversion of the waters of the river for that purpose, but dernur to the declaration, and set forth as causes of demurrer

" That the act of the legislature of the then Province of Penn

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