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December 1, 1853


THIS case was brought up by writ of error from the Circuit Court of the United States for the District of New Jersey. The action of ejectment was brought to recover a tract of land at Paulus Hook, now Jersey City, on the Jersey shore, formerly under the tide waters of the Hudson river, and below low-water mark. The locus in quo has been reclaimed from the water by artificial means, and was in the possession of the Jersey Associates, and occupied by them as building lots. Upon the trial in the Circuit Court it was ruled that the plaintiff had failed to make out a title, and the jury found for the defendants. The plaintiff excepted to the opinion of the court and the cause came up on a writ of error. It was argued by Mr. Rutherford and Mr. Van Santvoord, for the plaintiff in error, and by Mr. Zabriskie and Mr. Scudder, for the defendants. The title of the plaintiff in error was derived from the proprietors of East New Jersey, who claimed under a grant from Charles the Second to his brother James, Duke of York, in 1664. The proprietors living in 1776 having espoused the cause of the Americans, in the struggle of the Revolution, their property was not confiscated; and they are still recognized by the State of New Jersey as an existing body, for many purposes. They own a considerable quantity of unappropriated land, which is exempt from taxation. The argument of the case in this court covered a great deal of ground upon both sides; but as the decision of the court turned upon a single point, viz. that the main feature of the case had been adjudicated upon in Martin v. Waddell, 16 Peters, 367, it is not deemed necessary to do more than state the argument made by counsel to show the difference between the two cases.

The opinion of the court was delivered by: Mr. Chief Justice Taney delivered the opinion of the court.

Mr. Van Santvoord, one of the counsel for the plaintiff in error, thus noticed the point:We are to show, therefore, that the propriety in the soil under the navigable waters of New Jersey, passed to the Duke of York and his grantees, and that it passed not as one of the regalia of the crown, or as a concomitant of government, but as an absolute proprietary interest, subject, it is true, to every lawful public use; but not the less on that account a hereditament, and the subject of lawful ownership and of the right of full and unqualified possession when that public use shall have ceased.

In examining the question it will be necessary, first, to remove an obstacle which is encountered at the very threshold of the discussion. It is contended, and the circuit judge so charged the jury, that the matter is already res adjudicata, and that the decision in Martin and others v. Waddell involves the very point in controversy. If this be so, the discussion, of course, is at an end. For though a decision like that of Arnold v. Mundy, 1 Halst. 1, in a State court is not conclusive, yet an adjudication by this court of the very subject-matter of the controversy is; and we are not at liberty to question it, or permitted to look beyond the rule and the decision in the particular case for the reason upon which such decision is founded.

We contend, then, that the question presented by the present case was not necessarily involved, and certainly not passed upon, in Martin v. Waddell, nor was it in Arnold v. Mundy. Our claim is perfectly consistent with the actual decisions in both cases, and is even fortified by those decisions. I shall, therefore, briefly consider what was really decided in Martin v. Waddell, and point out the distinction between that and the present case. And,

First. This is an ejectment for lands reclaimed from the bed of a navigable river, and in the actual possession of the defendant as building lots. Martin v. Waddell was an ejectment for lands still under water, in the constructive possession of the defendant as a fishery.

Ejectment is a possessory action, and the suit is brought to recover the possession, in the one case of the fishery, or the use of the land, in the other case of the land itself.

Second. In Martin v. Waddell, the only possession of which the locus in quo (being then under water) was susceptible, was in its capacity of a public easement, or highway for navigation, or for fishery, and their correspondent uses. The only possession withheld by the defendant, and claimed by the plaintiff, was the use of the locus in quo as a fishery. The decision in that case was, that the plaintiff was not entitled to such possession, because he had not an exclusive right to such use or possession; but the question of the ultimate fee in the soil, or jus proprietatis, was not involved.

This position may be illustrated by supposing the possession claimed by the plaintiff, and withheld by the defendant, to have been the exclusive use of the soil and waters for navigation. The defendant being in possession by his boats, rafts, &c., the plaintiff seeks to oust him by an ejectment; and must fail, for the same reason that he failed in Martin v. Waddell, because navigation being a jus publicum, the defendant had a right, in common with every other citizen, to be there. But no one will pretend that such a decision would carry with it the more important one, in respect to the fee of the soil. So in Martin v. Waddell, the franchise of fishery is elevated into a jus publicum, and placed upon the same footing with navigation. The plaintiff, by an ejectment, can no more be put in exclusive possession of it, than he could of an exclusive right of navigation in a public river, because it is not susceptible of ownership.

Third. It makes no difference that the action was technically brought for the land under water. The sole and only controversy was in respect to the claim set up by the plaintiff's lessor of an exclusive right of fishing, and nothing else was passed upon in the case. Ejectment cannot be brought for a fishery eo nomine; but if a fishery be claimed, the action must be brought for the land covered with water. Thom. Co. Litt. p. 200.

Thus, also, ejectment will not lie for a watercourse, but the ground over which the water passes, being deliverable in execution, upon which an entry can be effected, may be recovered in this action. Challoner v. Thomas, Yelv. 143; see also Jackson v. Buel, 9 Johns. 298; Jackson v. May, 16 Johns. 184.

It was formerly held that a franchise of fishery, being an incorporeal hereditament, and not susceptible of delivery, could not be recovered in ejectment, (Cro. Jac. 144, Cro. Car. 492); and it is now only upon the assumption that a fishery is a tenement, and may be delivered in possession, that an ejectment will lie to recover it. Saund. Pl. & Ev. 981.

Fourth. These distinctions were taken and strongly urged in Martin v. Waddell by the counsel who argued the case against the proprietors. He says:

'The plaintiff, to recover, must maintain two positions,––

1. That he has a possessory title to the premises in question, the soil of this ...

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