VAN FLEET, V. C.
(Syllabus by the Court.)
On final hearing on bill and answer and proofs.
John R. Emery and Henry C. Pitney, for complainant. Oscar Keen and Robert Gilchrist, for defendants.
VAN FLEET, V. C. This is a suit brought under the statute of 1870, authorizing this court in certain cases to settle and determine the title to lands. Revision, p. 1189. The jurisdiction of the court is undisputed. Both parties admit that the necessary facts to give jurisdiction exist, and each call upon the court to pronounce a decree establishing the title it sets up. The case presents simply a question of title. The subject of the suit is a tract of land, situate in the city of Newark, lying on the south side of the Passaic river, extending northerly from the tow-path of the Morris canal to the dock line of the river, and bounded on the east by lands of a corporation known as the "Chemical Works," and on the west by lands of S. C. Williams. Its dimensions, as given in the complainant's bill, are as follows: Being 1,095 feet in length along the dock line, about 1,170 feet in length along the tow-path, about 178 feet along lands of the Chemical Works, and about 102 feet along lands of S. C. Williams. From this description it will be seen that the principal part of the land in controversy lies between the high and low water lines of the Passaic river. The complainants' immediate predecessors in title, the New Jersey Zinc Company, in October, 1870, obtained a license, under the wharf act of 1851, from a joint commission appointed by the chosen freeholders of the counties of Essex and Hudson, authorizing them to fill in and dock out on the land in question; and they, soon thereafter, erected a line of piling, surmounted by a cap or string piece, along its front and western boundary. The land on the east, belonging to the Chemical Works, and forming the eastern boundary of the tract in dispute, had already been tilled in out to the dock line. The complainants and their predecessors in title, after obtaining the license, and before the institution of this suit, expended in improving the land in dispute over $17,000. The license granted to the New Jersey Zinc Company gave them no authority to fill in and dock out unless they were the owners of a ripa lying behind the land covered by tide-water. A license granted under the statute of 1851 confers no right whatever on the licensee, unless he is the owner of the shore, and is of no use to him unless he is. His license is conditional, the condition being that he has title to a ripa lying behind the public domain covered by his license. Brown v. Canal Co., 27 N. J. Law, 648. Without title to a ripa, it is entirely clear that the complainants are in no position to assert a right to any of the land in dispute lying beyond the high-water line. The law on this subject is so firmly settled as not to be open to debate in this court. All navigable waters within this state, together with the soil under them, belong, in actual proprietorship, to the state. A person acquiring title to land abutting on a navigable stream takes title only to the high-water line, and that line is limited by the outflow of the medium high tide between the spring and neap tides. All below that line belongs to the state, and the state may, at any time before it is reclaimed by the owner of the adjacent upland, grant it, for a public use, to whomsoever it sees fit. A grantee of lands abutting on a navigable stream acquires no peculiar rights, as incidents of his estate, in the land beyond the high-water line, lying in front of his land; but in virtue of a local custom long prevalent in this state, and now having the force of established law, the adjacency of his land to the stream invests him with a license to fill in and wharf out on the public domain to such an extent as does not interfere with the public rights of fishing and navigation; and this license, when executed, becomes irrevocable, and confers on the riparian owner a good and indefeasible title to the land thus reclaimed. Gough v. Bell, 22 N. J. Law, 441; Stevens v. Railroad Co., 34 N. J. Law, 532. No such license exists, however, in favor of any person except a riparian owner. It is a right growing out of the adjacency of his landto navigable water, and is incident to the ownership of land thus located, but can have no existence apart from the ownership of land abutting on a navigable stream.
The complainants show a perfect paper title to the lands in dispute. They claim under the proprietors of the Eastern division of New Jersey. Their title to the eastern part of the tract in question originated in a survey made to one of the proprietors in March, 1806, and to the western part under a survey made to another of the proprietors in August, 1833. The transmission of the title from these two proprietors to the complainants, through several intermediate conveyances, is fully established. The defendants do not deny that the complainants show a perfect paper title, but they say that all the lands covered by their title lay, at the time their title originated, below the high-water line of the Passaic, and therefore it was not possible for a title to be acquired to them, except by a grant from the state, and that, inasmuch as no such grant is shown, the complainants show no title; in other words, that their paper title is worthless. This statement of the defense is, in a material respect, much broader than that made by the defendants' answer. It is a fact about which there is no dispute—indeed, it is one of the few things about which no controversy was made during the hearing—that the defendants' canal along nearly the whole of the locus in quo was constructed in part on lands covered by the complainants' title. The defendants' answer does not claim that that part of the land covered by the complainants' title upon which the defendants constructed their canal lay below the high-water line of the Passaic; on the contrary, it distinctly admits that it lay above the high-water line. The answer speaks, on this point, as follows: That the canal was so located, along and opposite the piece of land in dispute, as that it skirted the high-water line of the Passaic in such manner that when it was constructed the base of the bank which supported the tow-path of the canal extended to the high-water mark of the river, along the whole length of the strip of land now in dispute in this cause. This averment, as I understand it, asserts, with the utmost perspicuity, that, on the completion of the canal, the base or foot of the tow-path was coincident with the high-water line, along the whole of the locus in quo. It follows necessarily that all of the land covered by the complainants' title, which the canal and tow-path occupied, lay above high-water line. Accepting the statement of the answer on this subject as an accurate description of the location of that part of the land covered by the complainants' title which the canal occupied, there can be no doubt that their title at one time embraced a sufficient ripa to confer upon the person who held it all of the privileges which inhere in the ownership of land abutting on a navigable stream. Under such a condition of facts, the important question which the court would be called upon to decide would be whether the defendants, by the acquisition of an easement for the purposes of their canal over the ripa covered by the complainants' title, that is, by simply taking possession of such ripa, and building their canal on it, and retaining possession of it for over 40 years,—for the defendants have shown no better or other title,—had so far succeeded to the privileges which the owner of the ripa might otherwise have exercised over the shore lying in front of his land as to put it in their power to prevent him from exercising them. I believe no court in this state has as yet decided that where the Morris Canal & Banking Company have, either by condemnation or by taking possession, acquired land abutting on tide-water, simply for a part of their right of way, and not as a terminus, that the right thus acquired gave them authority to exercise the privileges of a riparian owner. On the contrary, the truth is that serious doubts have always been expressed, whenever the question has received attention, whether, in view of the provisions of their charter, the defendants were competent to exercise the privileges of a riparian owner, even over the shore of land which they hold by grant from the owner of the fee. The utmostmost extent to which the decisions on this question have as yet gone is this: that the canal company were competent to receive such privileges by grant from the owner of the fee, and thus cut him off from the right to exercise them; but it was doubtful whether they themselves could exercise them, or take them for any other purpose than to prevent their grantor from exercising them. This is the view expressed by the supreme court in State v. Brown, 27 N. J. Law, 13; and although the judgment pronounced in that case was subsequently reversed, Brown v. Canal Co., 27 N. J. Law, 648,) yet the judgment of the supreme court, as to the effect which should be given to a grant made by a riparian owner to the canal company, has since been twice approved by the court of errors and appeals. Improvement Co. v. Hoboken, 36 N. J. Law, 540; Fitzgerald v. Faunae, 46 N. J. Law, 536.
The difference in the legal effect, which must be attributed to the conveyance of an estate in fee, whether absolute or qualified, and the right which the defendants acquired by simply taking possession of land for a right of way or condemning it for a like purpose, is wide and vital. Under a conveyance, even if it be of only a qualified fee, the defendants have, while their estate continues, by the plain terms of their grant, an absolute right to the exclusive possession of the land conveyed; and any attempt by their grantor to exercise any sort of possession over the land, or to use any part of it as a means of advantage or profit to himself, would be in plain derogation of his grant, and a clear violation of the defendants' rights. The defendants, under a deed conveying only a qualified fee, would, while their title continued, have the same right to the exclusive use and enjoyment of the land, and as complete dominion over it for all purposes, as though they held it in fee-simple absolute; and no one, I suppose, would pretend that it would be possible for a grantor, after making a title of that description, to set up with the least show of success a right or interest of any kind in the land conveyed. But the defendants' right in lands, acquired by any other means than by grant, stands on an entirely different foundation. Where the state invests a corporation with the sovereign prerogative of eminent domain, for the purpose of enabling them to construct and operate a public highway, and they take land by force of their charter, or by any other means than by grant, for the purposes of such highway, it is manifest that the plain purpose of the grant to them is not to give them capacity, or invest them with power to take a fee, but merely to give them power to acquire such an easement in the land as will enable them fully to accomplish the purposes for which they were created. The plain design of the grant, in such a case, is to enable them to acquire what they require for the construction and successful operation of their highway, but nothing more. The title to the land taken remains, in such cases, in the owner, subject only to such servitude as the corporation has power to impose, and their power in this respect is limited, as a general rule, to such use of the land as may be reasonably necessary for a right of way, Taylor v. Railroad Co., 38 N. J Law, 28; 1 Redf. R. R. 270. Such grants, like all public grants, are to be strictly construed. The grantee takes nothing except what is plainly given either in express terms or by necessary and unavoidable implication. What is not plainly given is to be understood as withheld. Any ambiguity in the terms of his grant will be fatal to his claim. To doubt in such a case is to deny.
The canal at the place in dispute was not constructed under the original charter granted to the defendants on the 31st of December, 1824, but under a supplement passed January 26, 1828. By their original charter the defendants were empowered, after locating the route of their canal, and without first making compensation, to enter upon, take possession of, and use all such lands, waters, and streams as were necessary for the purposes of their canal. They were authorized to take private property for the use of their canal, without first making compensation. Entry by them upon the lands of another,and appropriating the land to their own use for the purposes of their canal, neither constituted a trespass, nor gave the owner a right to maintain an action of ejectment against them. Rough v. Darcey, 11 N. J. Law, 237; Den v. Canal Co., 24 N. J. Law, 587; Railroad Co. v. McFarlan, 31 N. J. Eq. 706, 43 N. J. Law, 605. By the supplement of January 26, 1828, the defendants were authorized to extend their canal from the Passaic river to the waters of the Hudson; but in making the extension they were not authorized to take any land until they first paid for it, or tendered its appraised value to its owner. Under their original charter their power to take land was subject to a very important limitation, and this limitation applied with equal force to all lands taken for the extension which were acquired by force of their charter, and not by grant. By the twenty-seventh section it is declared that the defendants' power to take land shall be so construed as that they shall not be authorized to take or appropriate to the use of their canal, or under color or pretense that the same are necessary therefor, any lands, waters, or streams of water, but such only as are actually necessary for the erection and use of their canal for the purposes of navigation only, and its necessary towing-paths and works. This language, in my judgment, will bear but one interpretation, and that is, that when the defendants, by force of the power conferred upon them by their charter, and not by grant, or with the consent of the owner, acquired for a part of the right of way of the public highway which they were authorized to construct and operate there, they simply took such an easement or right in the land as it was reasonably necessary for them to have in order that they might build their canal, and afterwards use and operate it as a public highway. Or, to state what they took, as contrasted with what the landowner retained, it may be said, that the owner of the land was required to yield to the defendants such possession, use, and enjoyment of the land taken as it was necessary for them to have to enable them to fully accomplish the purposes of their creation, but nothing more. He retained the fee, and also all privileges and incidents belonging to it, together with the right to make any use of the land which would not injuriously interfere with the defendants in the full and free use of their easement.
The word "lands" was used in this part of the charter, as I think, as the equivalent of right or estate, so that if the legislative purpose had been expressed with entire aptness, this clause would have read in this wise: that that part of the defendant's charter giving them power to take land shall be so construed as that they shall not be authorized to take any right or estate in lands taken by them for the purposes of their canal, but such only as shall be actually necessary for the erection and use of their canal, for the purposes of navigation only, and its necessary towing-paths and works. That this is the construction which this clause of the charter should receive is made manifest, as I think, by a subsequent clause of the same section, which declares that the defendants shall not be authorized to demise, grant, alien, or sell any such lands, waters, or streams, taken, or pretended to be taken, or required, for the use of their canal, to any person or persons whomsoever, except only such land as may be received by them by donation, or acquired by them by private contract. These two clauses, when considered together, seem to me to leave the purposes of the legislature in two respects entirely free from doubt: First, that what the defendants should have the right to acquire, should only be such in quantity, quality, and duration as it should be reasonably necessary for them to have to fully accomplish the objects for which they were created; and, second, that what they acquired should be inalienable, and that they should derive no benefit from it except such as might be obtained by using it for the purposes for which they were authorized to take it. The words of limitation employed in both clauses demonstrate, I think, with great clearness, that it was an important part of the legislative scheme in granting this charter to rigidly restrict the right which the defendants might acquire where they tookland merely for a right of way, and by any other means than by grant, to such an easement as it should be necessary for them to have to fully accomplish the purposes of their creation, leaving the fee of the land in its owner, with good right and full power on his part to make any use of the land which would not deprive the defendants of the full beneficial enjoyment of their easement. This construction puts the defendants' charter in complete harmony with what has always been considered a wise and just public policy on this subject in this state. In 1866 Chief Justice BEASLEY, in pronouncing the opinion of the court of errors and appeals in Steam-Boat Co. v. Transportation Co., 18 N. J. Eq. 511, said: "Public sentiment, from the earliest times to this day, and the whole course of legislative action, in this state, have recognized a natural equity, so to speak, in the riparian owner to preserve and improve the connection of his property with the navigable water, and the consequence is that a strong presumption arises against an implication of an intention on the part of the legislature to violate such equity. In my opinion, such a design should not be deduced from the words of any statute, either general or special, except when it contains language not susceptible of any other rational interpretation." In 1877 a statute was passed, which declares that when land has been or shall betaken or granted for a right of way, and such right of way has been or shall be so located on the land of a riparian owner as to occupy the same along or on the shore line, and thereby separate the upland of such riparian owner, adjoining that used for such right of way, from tide-water, such owner of the land so subject to such right of way, shall be held to be the riparian owner, for the purpose of receiving any grant or lease heretofore or hereafter made of lands of the state under water or for the purpose of receiving any notice under the act to which this is a supplement, or the supplements thereto. Revision, p. 987, § 29. So far as this statute was intended to be retrospective, it is unquestionably valid as against a person who, at the time of its passage, held merely an unexecuted license to fill in and dock out; for, until such license is executed, it is competent for the legislature to adopt any regulation respecting land lying below the high-water line which to it may seem wise and just. This statute embraces, it will be observed, both lands taken or condemned and lands granted; and, while it must be admitted that the complainant's case does not fall within its precise words, for they own no upland adjoining the land taken by the defendants for their right of way, which is separated, by the land occupied by the right of way, from tide-water,—because, under the theory of fact on which the case is now being considered, the right of way occupies the whole of the upland or ripa covered by the complainants' title,—still, I think the statute has a very important bearing on this case. It puts in the form of positive law what, prior to its enactment, existed only as a deduction to be made from a local custom, or principle of local common law. The statute was undoubtedly passed to clear up doubts, which it was thought might exist, respecting the rights of two different classes of persons in the same piece or tract of the public domain. There is nothing on its face which indicates an intention on the part of the legislature to take anything from the riparian owner; on the contrary, its main purpose seems to be to make his rights more certain and secure. Nor was it designed to establish a new rule of law, for it never was the law that the acquisition of a mere easement by one person in the land of another operated to transfer the fee, nor to deprive the owner of the servient land of the right of making any use of it which did not interfere with the full and free enjoyment of the easement. The principal design of the statute, as I read it, was to declare what before was, on general principles of law, entirely certain and clear; and that is, that the acquisition by a canal or railroad company of an easement, simply for a right of way, over the lands of a riparian owner, along or on the shore of his lands, should not operate to deprive him of his right or equity to preserve and improve the connection of his land with tide-water.
natural that his observation of its condition should have been somewhat closer and more thorough than that of a person having no interest in it, and that his recollection of what he saw should be more perfect, and remain with him longer, than that of a person casually looking at the land with neither interest nor object. Mr. Tichenor conveyed the land in controversy, together with other land, to the New Jersey Exploring & Mining Company on the 1st of May, 1850. Dunn & Thompson, who were engaged in surveying lands in the city of Newark from 1844 to 1856, in June, 1850, made a survey and map of the land so conveyed. Mr. Dunn is dead, but Mr. Thompson is living, and was examined as a witness in this case. After an examination of the map made by his firm in 1850, Mr. Thompson testified that the map was made from an actual survey, which he and Mr. Dunn made together, and that his recollection was that at the time the survey was made there was a strip of land from 10 feet to 30 and upwards in width lying north of the foot of the tow-path, extending along nearly the whole of the locus in quo, which was not covered by water at an ordinary high tide. Mr. Eliphalet C. Smith, who was assistant surveyor of the city of Newark from 1837 to 1839, and city surveyor from 1843 to 1848, and assistant engineer on that part of the canal extending from Newark to the waters of the Hudson from 1833 to 1835, testified that while engaged on the canal he resided in the city of Newark, and that in going to and from the point where his duties required him to be he passed every day, on the tow-path, along the place in dispute; and also that while he was assistant surveyor of the city of Newark he made surveys on the disputed territory, for the purpose of collecting material to be used in making a map of the city of Newark, and that in collecting such material he was necessarily required to measure the distance at the place in dispute, from the foot of the tow-path to the high-water line of the Passaic. He swears that, after the completion of the canal, there was no point on the lands in dispute where the foot of the tow-path was coincident with the high-water line; that it would not have been good policy to have located the tow-path so that tide-water at high water would have washed it; but his recollection was that between the bottom of the tow-path and the high-water line there was a strip of upland, varying in width from 10 feet to 30. Dr. Alexander, the superintendent of the chemical works, whose testimony, in consequence of his caution, strong sense of justice, and high regard for the truth, is, in my judgment, entitled to the very highest consideration, says that after 1872, and before the filling in was done, there existed at the line of the Chemical Works, extending westerly for the distance of four or five blocks, quite a little strip of land between the bottom of the slope of the tow-path and the high-water line of the Passaic. There is a large amount of other evidence on the part of the complainants of the same general character. Stated in its substance it shows that there was between the foot of the tow-path and the waters of the Passaic, along the whole of the disputed territory, from the time the canal was built until tide-water was excluded by the filling in, a considerable strip of upland which the waters of an ordinary high tide never touched. If this evidence is believed, there can be no doubt-about the complainant's right to a decree. It establishes the fact that there was a sufficient ripa lying north of the tow-path to entitle the complainants to be regarded as riparian owners.
The defendants' evidence on this branch of the case quite equals in bulk, if not in weight, the evidence of the complainants. They show by many witnesses, some of them gentlemen of prominence and high respectability, that on the completion of the canal the foot of the tow-path along the whole of the territory in dispute was either coincident with the high-water line of the Passaic, or extended below it into the river. Mr. Boswell B. Mason, who had charge of the location of the route of that part of the canal extending from Newark to the waters of the Hudson, swears that after the tow-path was built there was no land between the foot of the tow-path and the high-water line,stance being required to pay, on a condemnation valuation, more than $15 an acre, including damages, and in some instances only $5 an acre. The tow-path at this point was constructed of loose earth, taken from the excavation made for the bed of the canal. If it had been located where the defendants say it was, it is as certain as anything can be which is governed by the law of nature, that the very first considerable freshet which occurred in the Passaic after it was built would have swept it away. That it never was washed away by a freshet demonstrates, as I think, quite conclusively that it was located above the high-water line. Competent engineering, as well as ordinary good sense, would have located it there. I have no doubt it was located there. The proofs, in my opinion, fully establish the fact that there was and is a ripa north of the foot of the tow-path, along the whole of the territory in dispute, sufficient in extent to constitute the complainants riparian owners. This conclusion renders it unnecessary to consider any of the many questions started by the defense on the assumption that no such ripa existed. The complainants are entitled to a decree adjudging that they hold the land in dispute by a good and valid title, and that the defendants have no right or interest in it except a right of way for their canal and tow-path, over so much of it as their canal and tow-path now occupy. The complainants are also entitled to costs.