thing upon it. It will be remembered, also, that I speak only of the general right, which is a matter perfectly distinct from those cases of necessity that often arise out of the perils of navigation. Having thus shown that the general proposition cannot, in my opinion, be maintained, I return to the particular right or privilege claimed in the present case.

One of the topics urged at the bar in favor of this supposed right, was that of public convenience. Public convenience, however, is, in all cases, to be viewed with a due regard to private property, the protection whereof is one of the distinguishing characteristics of the law of England. It is true, that property of the description of the present is, in general, of little value to its owner; but I do not know how that little is to be protected, and much less how it is ever to be increased, if such a general right be established. If there be a general right of passage across land of this description in the nature of a highway, by what law are stake nets, or other implements of fishing, to be placed there, or sand or stones to be taken away, whereby the exercise of the right which, as claimed, will, in its universality, extend itself over every part of the surface, may be obstructed, or rendered less convenient? By what law can any wharf or quay be made? These, in order to be useful, must be below the high-water mark, that vessels or boats may float to them when the tide is in; but when the tide is out, no carriage can pass them. In some parts of the coast, where the ground is nearly level, the tide ebbs to a great distance, and leaves dry very considerable tracts of land. In such situations, thousands of acres have, at different times, been gained from the sea and its arms by embankments, and converted to pasture or tillage. But how could such improvements have been made, or how can they be made hereafter, without the destruction or infringement of this supposed right? And, it is to be observed, that wharfs, quays, and embankments, and intakes from the sea, are matters of public as well as private benefit.

Another topic relied upon by the defendant was usage and

practice. The practice of modern times can be considered, at the utmost, in the nature only of evidence, more or less cogent according to its extent and uniformity. I am not aware of any practice, in this matter, sufficiently extensive or uniform to be the foundation of a judicial decision. It was said at the bar, that in some places a compensation is made to the owner of the shore; but I do not rely on this assertion as a ground of judgment. In many places, doubtless, nothing is paid, In some parts, the king is the owner of the shore; and it is not probable that any obstruction would be interposed on his behalf to such a practice. Of private owners, some may not have thought it worth while to advance any claim or opposition; others may have had too much discretion to put their title to the soil to the hazard of a trial by an unpopular claim to a matter of little value; others, and probably the greater part, may have derived or expected so much benefit from the increased value given to their own land above by the erection of houses and the resort of company, that their own interest may have induced them to acquiesce in, and even to encourage the practice, as a matter indirectly profitable to themselves. But, further, the practice, as far at least as I am acquainted with it, differs in degree only, and not in kind or quality, from that which prevails as to some inland wastes and commons; and even the difference in degree is, in some instances, not very great. Many of those persons who reside in the vicinity of wastes and commons, walk or ride on horseback, in all directions, over them, for their health and recreation; and sometimes, even in carriages, deviate from the public paths into those paths which may be so traversed with safety. In the neighborhood of some frequented watering-places, this practice prevails to a very great degree; yet no one ever thought that any right existed in favor of this enjoyment, or that any justification could be pleaded to an action at the suit of the owner of the soil.

The only remaining topic adduced for the defendant was, that the right may be considered as confined to those instances only wherein it can be exercised without actual prejudice to the owner

of the shore, and subject to all modes of present use, or future improvement, on his part; but no instance of any public right, so limited and qualified, has been found. Every public right to be exercised over the land of an individual is, pro tanto, a diminution of his private rights and enjoyments, both present and future, so far as they may at any time interfere with or obstruct the public right.

But, shall the owner of the soil be allowed to bring an action against any person who may drive his carriage along these parts of the sea-shore, whereby not the smallest injury is done to the owner? The law has provided suitable checks to frivolous and vexatious suits; and, in general, experience shows that the owners of the shore do not trouble themselves or others for such matters. But where one man endeavors to make his own special profit by conveying persons over the soil of another, and claims a public right to do so, as in the present case, it does not seem to me that he has any just reason to complain, if the owner of the soil shall insist upon participating in the profit, and endeavor to maintain his own private right, and preserve the evidence thereof. For these reasons, I am of opinion that there is not any such common law right as the defendant has claimed.

Judgment for the Plaintiff.

MARTIN ET AL., PLAINTIFFS IN ERROR V. LESSEE OF WADDELL, DEFENDANT IN ERROR.

(16 Peters' U. States Sup. Court Rep. 369.)

IN error to the Circuit Court of the United States for the district of New Jersey.

The defendant in error, the lessee of William C. H. Waddell, instituted, to April term, 1835, in the Circuit Court of the United States for the district of New Jersey, an action of ejectment, against Merrit Martin and others, for the recovery of certain land covered with water, situated in the Raritan bay, below high-water mark, in the State of New Jersey. The defendants appeared to the suit; and at April term, 1837, the cause was tried by a jury, who found a special verdict, on which judgment was afterwards entered for the plaintiff; from which judgment the defendant prosecuted this writ of error.

The case was argued by Mr. Wall, and Mr. Wood, for the plaintiffs in error; and by Mr. Ogden, and Mr. Wright, for the defendant.

The special verdict found that on the 12th day of March, 1664, certain letters patent, duly executed, were granted by Charles the Second, then King of England, to James, Duke of York; and set forth the letters patent at large. The letters patent stated that the King," For divers good causes and considerations us thereunto moving, having of our special grace, certain knowledge, and mere motion, given and granted, and by these presents, for us, our heirs and successors, do give and grant unto our dearest

brother James, Duke of York, his heirs and assigns, all that part of the main land of New England, beginning at a certain place called or known by the name of St. Croix, next adjoining to New Scotland, in America; and thence extending along the sea-coast, unto a certain place called Petuaquine, or Pemaquid, and so up the river thereof, to the farthest head of the same, as it tendeth northward; and extending from thence to the river of Kennebeque, and so upwards by the shortest course to the river of Canada northward; and also all that island or islands, commonly called by the several name or names of Matowacks or Long Island, situate, lying and being towards the west of Cape Cod, and the Narrow Higansetts, abutting upon the main land between the two rivers there, called or known by the several names of Connecticut or Hudson rivers; together also with the said river called Hudson river, and the lands from the west side of Connecticut to the east side of Delaware bay. And also all those several islands called or known by the names of Martin's Vineyard and Nantucks, or otherwise Nantuckett, (whereof the tenements aforesaid, with the appurtenances in the declaration aforesaid mentioned are parcel ;) together with all the lands, islands, soils, rivers, harbors, mines, minerals, quarries, woods, marshes, waters, lakes, fishings, hawkings, huntings, and fowlings, and all other royalties, profits, commodities and hereditaments to said several islands, lands, and premises belonging and appertaining, with their and every of their appurtenances, and all our estate, right, title, interest, benefit, advantage, claim and demand, of, in, or to the said lands and premises, or any part or parcel thereof, and the reversion and reversions, remainder and remainders, together with the yearly and other the rents, revenues, and profits, of all and singular the said premises, and of every part and parcel thereof, to have and to hold all and singular the said lands, islands, hereditaments, and premises, with their and every of their appurtenances, hereby given and granted, or hereinbefore mentioned, to be given and granted unto our dearest brother James, Duke of York, his heirs and assigns forever; to be holden of us, our heirs and successors,