before belonged either to the crown or the parliament, became immediately and rightfully vested in the state. And the court recognized the decision of the supreme court of New Jersey, in Arnold v. Mundy,' which was to the same effect, and regarded it as conclusive, as against proprietary rights to the soil under tide waters, and the fisheries therein. Independently, however, of that case, a majority of the supreme court of the United States were of opinion, that the true construction of the charter granted by Charles II. to the duke of York, was intended as a delegation of sovereignty, or as a frame of government; and that, as it was no appropriation of the public domain, the proprietors were never, by virtue thereof, entitled to the rights in question, viz. the right of property in the soil flowed by the tide, and an exclusive right of fishing for oysters.3

When the colonial charter of Massachusetts was annulled, the common law, in respect to the sover

' Arnold v. Mundy, 1 Halst. (N. J.) R. 1.

2 Martin et al. Plaintiffs in error v. Waddell, Defendant in error, 16 Peters (U. S.) R. 367; App. p. xli.

3 Thompson, J. and Baldwin, J. dissented from the opinion of the court, and the former delivered an elaborate opinion, in which he attempted to show that the grant of Charles II. to the duke of York passed the title to the land under the water as private property; that by the conveyance of the duke of York, all the right and title, both of soil and the powers of government, vested in the Proprietors, and that the Proprietors, by their surrender to the crown, did not relinquish any rights of private property in the soil derived from the original charter. See App. p. xcv.

eign and public right to arms, &c. of the sea, and to the soil flowed by the same, was maintained at the revolution. Upon that event, the jura regalia which before had belonged to the crown, became immediately vested in the state. In the case of the Inhabitants of Arundel v. M'Culloch, in that state, the court declare it as unquestionable, that all tide waters belonged to the sovereign, or in other words, to the public; and that no individual can appropriate them to his own use, or confine or obstruct them; and that it was upon this principle that legislative acts had been passed authorizing the building of bridges. Parker, C. J., in Commonwealth v. Charlestown, asserts the law to be (unless so far as it has been altered by statute) "that all arms of the sea, coves, creeks, &c., where the tide ebbs and flows, are the property of the sovereign, unless appropriated by some subject, by virtue of a grant, or by prescriptive right, which is founded on the supposition of a grant." It has ever to this day, in fact, been considered, that when the revolution took place, the people of the several original states became themselves sovereign, and that, in that character, they held the absolute right to all their tide waters, and the soil under the same, for their own common use.

1 See Dane's Abr.

Inhabitants of Arundel v. M'Culloch, 10 Mass. R. 70.

* Commonwealth v. Charlestown, 1 Pick. (Mass.) R. 180.

Martin et al. v. Waddell, 16 Peters (U. S.) R. 410; App. p. xli; Bennet v. Boggs, 1 Bald. (Cir. Co.) R. 60.

2

The supreme court of Pennsylvania say, that the soil between low water and the ordinary high water of the ocean, and wherever the tide ebbs and flows, is a part of the common highway, vested, they say, in England in the king, but in Pennsylvania, in the state.' Land on the navigable rivers of that state between high and low-water marks, are not within the jurisdiction of the land office of the state, so as to be the subject of grant by warrant, survey and patent from the Proprietary, dated in 1684. It is no uncommon thing to find springs between high water and low water along the banks of the river Susquehanna, and though such aqueous appendages are often a matter of convenience at some seasons of the year to those who live near, yet the state never sold any land below high-water mark.3 The common law of England, generally, except in the state of Louisiana, where the civil law prevails, upon this subject, is in fact recognized in every state, though (as we shall have occasion to point

4

1 Ball v. Slack, 2 Whart. (Penn.) R. 539.

Freytag v. Powell, 1 Whart. (Penn.) R. 536.

3 Commonwealth v. Fisher, 1 Penn. R. 467.

* See 2 Dane's Abr. 692, sec. 13. Note of the American editor in Vol. 44 Law Library, p. 146; Scott v. Wilson, 3 N. Hamp. R.; Parker v. Cutler, Mill Dam Company, 2 App. (Me.) R. 353; Hollister v. Union Company, 9 Conn. R. 436; Chapman v. Kimball, Ib. 38; East Haven v. Hemingway, 7 Ib. 186; Collins v. Benbury, 3 Ire. (N. C.) R. 277; Rogers v. Jones, 1 Wend. (N. Y.) R. 237; Commissioners of Canal Fund r. Hempshall, 26 Ib. 404; Hays v. Bowman, 1 Rand. (Va.) R. 417; Meade v. Haynes, 3 Ib. 33; Pitkin v Olmstead,

out in subsequent chapters) it has in some of them been altered and modified by statute and usage.

Accordingly it is well settled also, that no separate and exclusive right adverse to this sovereign and public right is acquired by a town to the tide waters or the soil thereof, by virtue of an act of the legislature extending the limits of such town over such waters. The supervisor of the town of Flushing, in the state of New York, brought an action of debt for a penalty prescribed by a regulation of the town, by which it was ordered that no person should rake clams within the boundary of said town, and the decision of the court was, that the town had no right to pass the law in question. "The town of Flushing" they said, "must show a right of property to the lands in the bay, in order to entitle them to make rules and regulate the use of these lands. We will not presume a grant of land under navigable waters to the owners of the adjacent soil, without evidence of long exclusive possession and use to warrant such presumption. No grant has been

shown, nor was any fact proved, from which a grant was to be presumed. The act of extending the

1 Root (Conn.) R. 217; Holme v. Richards, 4 Call (Va.) R. 441; Boatwright v. Bookman, 1 Rice (S. C.) R. 447. Common law in relation to the subject also recognized in Illinois, where it is held not applicable to the river Mississippi above the raising of the water occasioned by ocean tides. Middletown v. Pritchard, 3 Scam. (Ill.) R. 520.

Austin v. Carter, 1 Mass. R. 231.

1

bounds of the town over the bay and into the Sound or East river, so as to include the islands southward to the main channel, was merely for the purpose of urisdiction, and is no evidence of a grant of property in the soil covered by the water. All the ground, under the navigable waters of the Hudson river, is within the boundaries of some town, for the purposes of civil and criminal jurisdiction; but it does not follow, that the lands under the water, belong to the towns situated on the river." And thus it is, that. no authority is given by a statute of the state of Massachusetts under which highways are to be laid out, to the selectmen of a town, to appropriate the shores, or flats subject to be flowed by tide water, to the use of the inhabitants of the town, in the form of a way or road. The attempt, say the court in this case, to convert a wharf into a town-way, effectually showed the wisdom of withholding such powers from towns.

But, as is very well known, there are instances of grants made by the native Indians, and before charters from the crown were conferred, which grants embraced territory that included arms of the sea, so that a right of property therein, it has been supposed, was derived by the grantees independently of the crown. It was not at all unusual, at the period of

' Palmer v. Hicks (in error), 16 Johns. (N. Y.) R. 133. • Keen v. Stetson, 5 Pick. (Mass.) R. 492.