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independent, and relinquished all claims, not only to the government, but to the propriety and territorial right of the same. The right of the crown to the bay and river Delaware being thus extinguished, it would seem to follow, that the right claimed by New Jersey in those waters, was thereby confirmed; unless a better title to the same should be found to exist in some other States. Whether the claim of New Jersey extended to the middle of the bay, as we see by the compact with Pennsylvania it did to the middle of the river, is a question which we have no means of solving: but that the proprietors and inhabitants of West New Jersey made use of the bay, both for navigation and fishing, under a claim of title, from a period nearly coeval with the grants of the province, can hardly admit of a doubt. This right, indeed, is expressly granted by the Duke of York to William Penn, and the other proprietaries of West New Jersey by his grant, bearing date the 6th of August, 1680. It contains a grant, not only of all bays and rivers to the granted premises belonging, but also the free use of all bays and rivers leading into, or lying between the granted premises, for navigation, fishing, or otherwise. The only objection which could have been opposed to the exercise of those acts of ownership under this grant was, that the duke had himself no title to the bay and river Delaware, under the royal grant to him. But the presumption is, nevertheless, irresistible, that the benefits intended to be bestowed by this grant, and which were confirmed by the other acts of the provincial government before noticed, were considered by the inhabitants of the province as being too valuable not to be enjoyed by them. This use of the bay and river amounted to an appropriation of the water so used,' and this title became, as has before been observed, indefeasible, by the treaty of peace, except as against some other State having an equally good, or a better title.

“ How far this title in New Jersey may be affected by the grants of the Duke of York to William Penn in 1682, of the tract of country which now forms the State of Delaware, it would be improper, in this case, to decide. But that the use of the bay for navigation and fishing was claimed and enjoyed by the inhabitants of that province under those grants, is as fairly to be presumed, as that it was so claimed, and used by the inhabitants of New Jersey. And we are strongly inclined to think, that if the right of the former of these States to the bay of Delaware, was founded on no other title than that of appropriation, by having used it for purposes of navigation and fishing, the effect of the revolution, and of the treaty

of

peace, was to extend the limits of those States to the middle of the bay, from its mouth upwards." 2

1

Vattel, b. 1, ch. 22, sec. 2, 66.
See also Bennet v. Boggs, 1 Bald. (Cir. Co.) R. 60.

Although by the law of nations, in the absence of any convention or treaty, nations or states separated by a river or bay have each an absolute territorial jurisdiction only to the middle of the same, running the line at low-water mark ; yet it is not inconsistent with this doctrine, that the right to the use of the whole river or bay, for the purpose

of navigation, trade and passage, may be common to both nations. Such a right does not destroy the territorial jurisdiction to the middle of the stream ; but it is in the nature of an easement, as it is called at the common law, or a servitude, as it is called in the civil law. It is like the right of a highway, or private way, over the land of another. This right of passage and navigation must exist, as a common right, in all those cases where such a passage or navigation is ordinarily used by both nations or states, and is indispensable for their common convenience, and access to their own shores. A river or bay may be so narrow, or irregular, or so liable to difficulties from winds, waves, and currents, that it cannot be navigated by either nation or state, without the necessity of the right of passing over the whole waters at all times. If, in such case, no exclusive right is recognized in either nation or state, the constant use by both is conclusive proof of a common right of passage and navigation in both. And, in this country, if a State

1

Opinion of Story, J. in the case of the Schooner Fame, 3 Mason, (Cir. Co.) R. 147.

is bounded by low-water mark on one side of a navigable river, the people of such State have a right to the free use of the surface of the whole of such river, for navigable purposes.

See post, Chap IV.

A

TREATISE

ON

TIDE WATER S.

CHAPTER I.

RIGHT OF PROPERTY IN TIDE WATERS,

&C. BY THE CIVIL LAW AND BY THE COMMON LAW.

THE claim of the citizens and inhabitants of a state or country to the free use of the waters of the sea and their shores, for private advantage, is so obviously dictated by the law of nature, that in the first ages of all countries, they have been left open to public use. It is either so directed by the positive

1 See opinion of Best, J., in Blundell v. Catterall, App. p. vii. No sentiment appears more natural, than that the ocean, like light, is for the common benefit:

"Why do you refuse me water? Water is

The common right of all.” - Ovid.
"Who can forbid, from light to kindle light ?
And who'd, for the Ocean, waters keep in store ? "

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