American Dock & Improvement Co. v. Trustees for the Support of Public Schools

1. A statute provided that any lands of the state under tide-water, or that might theretofore have been under tide-water, which shonld happen to come within the location of the route, or of the depots, stations or other works of a certain railroad company, or which should be needed therefor, should be paid for by the company to the trustees of the school fund of the state; that the boundaries and price thereof should be fixed by the riparian commissioners; that the price should be paid prior to any filling or improvement thereon authorized by the act, and that on such payment the title to the land should vest in the company in fee, and that a deed therefor might be made by the riparian commissioners, governor and attorney-general, in the name and under the great seal of the state.—Held, th.at on the trial of an action of ejectment, a deed under the great seal of the state, purporting to convey land of the state in pursuance of the statute, was, of itself, competent evidence, without proof, that the previous steps leading to the vesting of the title had been taken when the deed was made. 2. Also, that evidence offered by the defendants in the action to show that the lands conveyed by the deed did not come within the location of the road or of the depots, stations or other works of the company, was properly excluded. 3. The pre-emption given by the eighth section of the riparian act of 1860, to the riparian owner, is of grace, and not of right. 4. The thirteenth section of that act was designed for the benefit of riparian owners who, after notice, neglected to apply for the grant, and the grant has consequently been made to some one else, and the right of the riparian owner to compensation is by the act made to depend upon whether, in law, he had such a right or interest as would make compensation to him necessary in order to enable the state to make the grant. 5. The legislature had the power to rescind the provision for pre-emption, and in the case of the West' Line grant it did so by the special grant above mentioned. It had also the power to repeal the provision for compensation. 6. The West Line grant was not in violation of the constitutional prerogative of congress to regulate commerce with foreign nations and among the several states. • 7. Where both parties claim under a grant from the state, the question whether congress has jurisdiction is neither material nor pertinent. 8. A railroad company may buy land in fee and hold it, and if the company becomes insolvent the property will be assets for the payment of its debts. 9. If the property, by reason of forfeiture, revert to the state, it alone can take advantage thereof. 10. Where the facts are undisputed; and the cause is to be decided upon mere questions of law, it is not error for the court to direct the jury what verdict to find.

Bill for relief. On motion on behalf of complainants to set aside the verdict rendered on the trial of the issue at law, and motion on the part of the receiver of the "West Line Railroad Company for a final decree upon the verdict. Charge of the court by De/pue, J. : This suit is an issue out of the court of chancery. The chancellor directed that the issue should be “Whether the New Jersey West Line Railroad Company, at and after the date of the delivery of the deed from the state of New Jersey to said companyj referred to in the pleadings in this cause, which was on or about the 19th day of March, A. D. 1872, had the legal title and right of possession to all or any part of the land described in and purporting to be conveyed by the said deed; and if only to a part, to what part.” The order of the chancellor, and the statute in virtue of which it was made, both contemplate the trial, upon such an issue, of the legal title in accordance with the rules and practice of courts of law for the determination of titles to land. A. careful examination of the case has led to the conclusion that there are no disputed questions of fact material to this issue which I can submit to the finding of the jury. I cannot find in the case made here any question arising under this issue except questions of law to be decided by the court.. The counsel have so treated the case in their summing up. The property in controversy is of considerable value, and the legal questions discussed by counsel are of the utmost importance. If this were an ordinary issue out of the supreme court, I would take a special verdict, or direct a verdict under formal instructions, and leave the decision of the case to the supreme court. But that course of procedure is not open to me in the trial of this issue. The chancellor has defined the issue, and has directed that it be tried in this court, and the only return that can be made to the court of chancery is a certificate of the finding of the issue at a trial in this court. The situation of the case has put upon me the duty to decide here upon the rules of law that are supposed to enter into the settlement of the title to the premises in dispute, and upon the application of those rules to the facts of this case. My endeavor will be to present the case with such directness that if I fall into any error in either respect, the error will manifest itself when the proceedings are brought under review; so that in any event the necessity for a retrial may be obviated. The premises lie. between the original line of high water of Communipaw bay and the centre line of "Washington street extended. They comprise lands lying between high and low water, and also lands below low water, extending out into the bay into deep water. Before considering the claims of title of the parties respectively, it will be useful to state the rights of the state in property so situated. By the common law of England, the title to lands under tidal waters, below the line of ordinary high water, was vested in the crown. In such lands the king had a double right—a right of jurisdiction for the purposes of government, and a right of property and ownership—the former as part pf the prerogatives of the king as sovereign, the latter as part of the jura regalia of the ■crown. These rights in lands under tide waters in the province of East Jersey were granted by Charles II. to the Duke of York by the charters of 1664 and 1674, and the land or soil under .such waters passed to the Duke of York, to be held by him in ■the same manner as the soil under the navigable waters of England was held by the crown. These rights, as well the right ■of property in the soil under tidal waters as the right of sovereignty, were transferred by the Duke of York to the proprietors, and by the surrender in 1702 were restored to the crown; and when the people of New Jersey took possession of the government and assumed the powers of sovereignty, the prerogatives ■and jura regalia,' which before belonged to the crown or to parliament, became immediately vested in the state. Among the rights of the crown to which the state succeeded was the right of property in the soil under tidal waters, and the title of the state in such lands is proprietary in its fullest sense, including the power to grant and convey them to individuals, to be held in private ownership. Martin v. Waddell, 16 Pet. 867 ; Den, Russell, v. Jersey Company, 15 How. jP6; Arnold v. Mundy, 1 Hal. 1; Gough v. Bell, £ Zab. jjl, 8 Id. 6£j; Stevens v. P. & N. R. R. Co., 5 Vr. 58£. In Gough v. Bell the courts of the state, while affirming the title of the state in tidal Avaters below ordinary high-water mark, held that, by' a local common laAv, the riparian owner—i. e., the owner of lands bounded on tidal waters—might extend his improvements by wharves or filling up over the shore between high and low-Avater mark, unless preventedr by the state; and that when he had so improved or reclaimed the shore, his title would extend to actual high-water mark. But this right of acquiring property in lands under tidal waters by improvement or reclamation was restrained Avithin the limit of the ordinary low-water mark. In Townsend v. Brown, j Zab. 80, 85, Chief-Justice Green said that it had never been supposed or imagined that there was or could be, within this state, independent of legislative grant, any individual ownership in the soil of the sea, or of the arms of the sea below low-water mark. This right of the riparian owner to improve, and by reclamation to acquire a' title, was not only limited to the space between ordinary high water and ordinary low water, but was also a mere license, revocable at the will of the legislature, which became irrevocable only when the license had been executed and the riparian owner had effected the reclamation. Before the reclamation was actually made the state might convey its lands to any one, either for public or private use, without making compensation to the riparian owner in front of whose lands the conveyance was made. Stevens v. P. & N. R. R. Co., supra; N. V, L. K & W. R. Co. v. Yard, U Vr. 638-636. In 1851, the legislature regulated the subject by a statute-commonly known as the Wharf act. By the first section of that act, it provided that it should be lawful for the owner of lands situate along or upon tide waters, to build docks or wharves upon the shore in front of his lands, and in any other way to improve the same, and when so built upon or improved, to appropriate the same to his own exclusive right. By the eleventh section, it defined the term “ shore,” as used in the act, to be the land between 'the limits of ordinary high and low water. By other sections, provision was made for enabling the riparian' owner to build docks, wharves and piers in front of his land beyond the limits of ordinary low water, by a license to be granted by the board of chosen freeholders of the county in which the lands lay. This statute did not create any property rights in the riparian property-owner in lands fronting on his land. It conferred a mere license, revocable at the will of the legislature before improvement actually made under the privilege granted. State, Roberts, v. Jersey City, 1 Duteh. 585 ; Stevens v. P. & N. R. R. Co., supra. The wharf act of 1851 continued in force until the 31st of March, 1869, when the second riparian act was passed. It was not repealed or suspended by the riparian act of April 11th,. 1864. By the riparian act of 1869, the wharf act was repealed as to the tide waters of the Hudson river, New York bay and. the Kill von Kull, and it was declared that such repeal should not be construed to restore any supposed usage, right, custom or local common law founded upon the tacit consent of the state or otherwise, to fill in any land under water below mean high tide, and that, without a grant or permission of the riparian commissioners, no person or corporation should fill in, build upon, or make any erections on, or reclaim any of the land under the tide waters within the limits above mentioned. The repealing act of 1869, in its third section, provided that nothing in the act contained should operate to repeal or impair certain grants of land under water, or rights to reclaim, or to erect or build docks, wharves and piers which had been given by legislative acts, nor to impair any revocable license granted by the board of freeholders under the act of* 1851, so far as the lands under water had been reclaimed or built upon under such, licenses. The act of 1869 authorized the riparian commissioners to make grants of lands under waters which had not been improved, and had not been authorized to be improved, under any grant or license protected by the provisions of the act; to designate the lands for which a grant is desired; to fix the price or annual rentals;' to certify the boundaries, and to make conveyance therefor in the name of the state and under the great seal of the state. This act also contained two provisions for the benefit of riparian owners. A proviso in the eighth section enacted that no grant or license should be granted to any other than a riparian proprietor until six calendar months after the riparian proprietors should have been personally notified in writing by the applicant for such grant or license, and should have neglected to apply for the grant or license, and to pay, or secure to be paid, the price that said commissioners had fixed. By this section the option to apply for and have a grant at the price fixed by the commissioners on the application of other persons—the preemption, so called—was given to the riparian owner as riparian owner, irrespective of the question of any rights on his part. The thirteenth section provided that, where a grant was made by-the commissioners to any other person than the riparian owner, •the state’s grantees were forbidden to fill up or improve the lands until the rights and interests of the riparian owner (if any he has) should be extinguished; and provision was made for the valuation of the rights and interests of the riparian owner (if any he has), on the payment of which his right and interest should be extinguished. This section was designed for the benefit of a riparian owner who, on notice given, had neglected to apply for the grant as he might have done under the eighth section, and the grant had therefore been made to some one else. And the right of such riparian owner to compensation was not given to him simply because he is riparian owner. His right to compensation in that event was made to depend upon whether, in law, he had such a right or interest as would make compensation to him necessary to enable the state to make the grant. Enough has been said to show that the titles of these parties respectively to the premises in dispute to be subjected to examination, must be title derived from the state. The provisions of the wharf and riparian acts I have referred to will be needed in the investigation of the subject. The plaintiff makes title under a. grant by the state to the New Jersey West Line Railroad Company. The defendants have no specific grant from the state for the premises. They claim title (1) as riparian owners; (2) under the wharf act of 1851; (3) under the act of 1860, authorizing the extension of the Central railroad; (4) under the act of 1864, incorporating the American Dock and Improvement Company. By a supplement to its charter, passed February 29th, 1872, the West Line company was authorized to extend its railroad from its prior terminus in Essex county, “ to some point in line with the most exterior line for solid filling, established in the Hudson river by the act of 1869, commonly called the Riparian Commission Act.” The ninth section enacts: “That any lands of the state under tide water, or that have heretofore been under tide water, which shall happen to come within the location of the route, or of the depots, stations or other works of the company, or shall be needed therefor, shall be paid for by the company to the trustees of the school fund of this state; and the boundaries and price thereof shall be fixed by the riparian commissioners, on application for that purpose to them, and shall be paid as aforesaid, prior to any filling or improvement thereon herein authorized ; and on such payment thereof, the title to such land shall vest in said company in fee simple, and a deed therefor may be made by said commissioners, governor and attorney-general, in the name and under the great seal of the state.” The deed of grant purports to have been made in pursuance of this section. It is under the great seal of the state, and signed by the governor, the attorney-general and the riparian commissioners. It is expressed in the formal language of common law grants, granting and conveying the premises to the West Line company, its successors and assigns, forever—that is, in fee simple. The deed is dated March 19th, 1872. It was acknowledged by the riparian commissioners May 20th, 1872, and deposited for record May 27th, 1872. The cases are not agreed as to whether a deed will be presumed to have been delivered as of its date, or as of the date of the subsequent acknowledgment. The question happens to be of no importance at this time. If exact time was material, and the West Line grant was to be considered as a revocation of a license, I would be inclined to hold that it became operative, as such, only from the time of notice. Actual notice of the grant was given to the two corporation defendants on the 25th of May, 1872. The deed recites that the premises granted and conveyed— “ Lie, in part, under tide water, and in part heretofore lay under tide-water, and happened to come within the location of the route, and of the depots, stations and other works of said company, and are needed therefor.” That the said commissioners, pursuant to the said ninth section, “and on application of said company,” have fixed the boundaries as they are hereinafter described, and the price of- such lands at the sum of $125,000; and that the said company have, pursuant to the directions of said act, paid to the trustees of the school fund of the state the said sum; and thereupon grants &c., to said company— “ All that certain tract of land, in part under tide water, and in part heretofore under tide water, in Jersey City, in the county of Hudson, and state of New Jersey ”—[describing the premises as in the declaration.] The ninth section of the West Line charter is not of itself a grant • but it is manifest that the legislature contemplated that the lands granted might be in the location adopted. That, I think, is apparent from the description of the authorized extension of the company’s railroad,'“ to some point in line with the most exterior line for solid filling,” as contained in the first section—from the restriction on the company, contained in the second proviso in the fourth section, which exactly fits on the grant as made, and from the fact that the legislature, by an act passed at the same session as the West Line supplement, and approved April 4th, 1872, established a public basin, conforming in its southerly line to the West Line grant, and by another act, approved the same day, authorized the riparian commissioners “to make changes in any basin now-fixed and established”—a provision suited to clear the way for the West Line grant—the same having been located almost entirely within the basin delineated on the commissioners’ map of 1865. The defendants contest this grant (1) on the ground of its own inherent invalidity, and (2) on the ground that they had previously acquired rights in the premises which disabled the state from making the grant. The contentions under the first head are— First. That the grant to the West Line company is in violation of the constitutional prerogative of congress to regulate commerce, and its jurisdiction over navigable waters capable of being used for foreign or inter-state commerce. Ever since the decision of Wilson v. Black Bird Greek Go., 8 Pet. it has been regarded as settled that the power of congress does not exclude the jurisdiction of the state over navigable waters within its boundaries, and that a state law on this subject is not invalid, unless congress has acted and the state law is in conflict with the congressional regulations or interferes with the rights which are permitted by them. I do not consider the several acts of congress cited, making appropriations for the improvement of New York harbor, as congressional legislation of such a character as would conflict with the right of the state to make the grant. Second. That the conditions on which the legislature authorized the grant were not complied with. I admitted the grant in evidence without proof that the conditions were complied with, and excluded evidence that the company’s location was such as not to justify the grant. I adhere to the views then expressed. The conditions were such as concerned only the state. The state selected its officers as the persons to ascertain whether the conditions on which the grant was authorized existed, and empowered them to make a deed in the name of and under the great seal of the state, as evidence of the grant. The deed so authenticated executed the grant. If there was any deception or fraud in procuring this grant, relief is exclusively at the instance of the ■state, either- by scire facias to vacate the grant, or by entry, or by a subsequent grant of the same premises. Field v. Seabwry, 19 How. 323; White v. Burnley, 20 How. 235; Spencer v. Lapsley, 20 How. 264; Schulenberg v. Harriman, 21. Wall. 44~ 62; Farnsworth v. M. & P. B. B. Co., 92 U. S. 49—66; 4 Abb. Big. 750, tit. “ Patents for Bands ” § 1. The defendants are not in position to represent the state in such a proceeding. Third. That the grant to the West Line company has become inoperative by reason of the forfeiture of its charter. The sixth section of the original charter, passed March 29th, 1865, provided that, if the railroad thereby authorized should not be completed at the expiration of ten years from the 1st day of July then .next, the act should be void, except as to the part completed. The company completed only a small- portion of the road originally authorized, and has done nothing on the extension except to take a grant of these lands. The limitation was reached in July, 1875. The limitation had not expired in 1872, when this grant was made. The grant was made on a consideration paid, and it was expressly provided that, on compliance with the conditions—all of which were precedent to the consummation of the grant—the title should vest in lee simple. If the title which so vested became forfeited and lapsed by-matters ex post facto, the land, if not held in trust for creditors and stockholders, reverted to the state, and proceedings to enforce the forfeiture and resume the title could be taken only by the state. Farnsworth v. M. & F. JR. JR. Co., supra. Nor .w-ill the fact that the West Line company has since become'insolvent, and its franchises have been sold to purchasers who have re-organized, defeat the grant. On the dissolution of ■a corporation, its property constitutes a trust fund for the payment of debts and stockholders. Boone on Corp. 207; JRev. p. 187 § 59. And if, by the extinguishment of the corporate ■existence of the company, the project for which the state allowed this grant is dissipated, and the condition implied from the grant broken, so that the lands revert, the remedy to recall the grant is with the state. Nor does the question arise whether the legal title to the lands vested in the receiver. The chancellor selected the parties in whose names the issue should be tried. He might have selected fictitious or nominal parties for the purpose. For convenience, he made the receivers of .the two corporations parties to stand upon the record. Fourth. That the West Line grant was made in violation of the right of pre-emption conferred on riparian proprietors by the proviso in the eighth section of the riparian act of 1869. The «defendants, or some of them, are owners of the ripa from the sugar-house around to the lands on which the Central railroad is constructed. Their ownership includes the ripa at the shore-end of the West Line grant, and the whole ripa adjacent on the northerly side of the grant. No question of apportionment, as between the several owners of ripa on a bay or cove, arises; and it is admitted that no notice of the application for the grant, and no option, was given to them to purchase for the price fixed. On the argument, I intimated to counsel that that right could not be litigated in this case; that the remedy was in equity. Johnson v. Towsley, 13 Wall. 72-83; Sampson v. Smiley, Id. 91, give countenance to that view. Subsequent reflection has brought me to a different conclusion. The conditions the state has imposed upon its riparian commissioners are conditions precedent; unlike the conditions for making the West Line grant, they are conditions for the benefit of riparian proprietors, and the legislature has prescribed that no grant shall be made to any other-than a riparian proprietor unless these conditions have been complied with. The first section of the limitation act of 1789 provided that no new survey, within the reputed boundary of lands, should be of any avail, unless it should be made to-appear that the possessor of such lands, holding the same by survey, deed or otherwise, had been notified for the space of six months previous to the making of such survey of the intention, to make it, and had refused or neglected to re-survey and cover-such overplus land. Rev. jp. 599 § 27. And it has always been considered that the person entitled to this pre-emption might, defend at law on the ground of want of notice. I think that, under the chancellor’s order for this issue, such of the defendants-as are riparian owners may contest the West Line grant here on. the ground referred to. The question, then, arises whether a grant such as was made to the West Line company, is subject to the conditions to which grants by the riparian commissioners, under the act of 1869, were subjected by the eighth section of that act. That the benefits conferred on riparian proprietors by that section are -revocable at legislative will is apparent from the reasoning of the-chief-justice in the Stevens case. The legislature might, therefore, authorize a special grant of lands under water not in conformity with the requirements of that act. The Yosemite Valley Case, 15 Wall. 77. I think the West Line grant is a grant of that character. The act of 1869 is a general act, designed to facilitate the sale of lands of the state under water simply for public-revenue, and indifferently to any one who desired to purchase. In such a scheme the legislature very properly preferred the riparian owner, who was willing to pay the price, to any other purchaser, and therefore gave the riparian owner the preference- and the option to buy at the price fixed. The lands comprised in the West Line grant consisted, in great part, of lands that had been withdrawn from sale and set apart for public us&— lands which were outside of the exterior lines and within the-basin delineated on the commissioners’ map of 1865. The act of 1872, under which the West Line grant was made, is a special act—a supplement to the company’s charter. Its ■object was not to put lands previously withdrawn from sale in the market, to be sold to augment the public revenues. It was ■designed exclusively to aid the West Line company, by enabling it to purchase lands of the state in order to get an outlet on tide waters. It authorized a grant to that company, and to that ■•company only, and made the location of its route or of its depots, •stations or other works, the need therefor of the lands selected, and the payment of the price fixed, the conditions on which the “title thereto should vest. The taking of the lands selected for 'that purpose by any one else than the company, would defeat the legislative purpose in this respect. The legislative intent, by the •act of 1872, cannot be made to harmonize with the legislative plan for the sale of the state’s'lands adopted by the act of 1869. 'The two acts cannot stand together, and therefore the act of 1869 is subject to that rule of construction that a general statute '.must give way to a special statute, so far as the provisions of the latter are inconsistent with the former. Industrial School District v. Whitehead, 2 Deas. 290; Jersey City v. J. C. & D. IT. R. R. Co., 5 C. E. .Or. 360. I have now examined the several objections made to the West Line grant, and find no infirmity in the grant which would Impair its validity as a grant, if the state had the power to make it. The defendants contend that the state had no such power. 'They insist that they had previously acquired rights in the premises, which prevented the state from making the grant. I will now consider the grounds on which this contention rests. In making the investigation, I will confine myself to the issue -of legal title. If there be equities which will overcome and •■subordinate the legal title, they remain in the court of chancery for its disposition. The Central Railroad Company, by a supplement to its charter, passed February 20th, 1860, was authorized to extend its railroad from the city of Elizabeth “to some point or points on New York bay, in the county of Hudson, at or south of Jersey City.” On the 27th of April, 1863, the company filed a location of the route of its extension, to- a point near Communipaw road. This:» location did not reach New York bay, nor the shore of Communipaw bay. On May 19th, 1863, the company filed another location, from the ending point of the location last named, to a point, on the channel of the Hudson river, about eight hundred and ninety-two feet easterly of the centre of Hudson street produced.. The route adopted by these locations was on a line at right, angles to the shore of Communipaw bay, and extended about five thousand five hundred feet from the shore line. The terminal point was within the boundaries of Jersey City. This-line of location was parallel with and four hundred and fifty feet south of the southerly line of the West Line grant. The com- . pany began the construction of its railroad over Communipaw bay, on its located route, in June, 1863. In August, 1864, the-work was in such a condition that the company began to run, ■passenger trains to the bulkhead, at the bay front, to connect with ferryboats running to New York city. The American Hock and Improvement Company was incorporated April 11th, 1864. At that date the Central Railroad Company had acquired the whole of the shore front between. Communipaw lane and lands of Gilbert, Hodges and Ploy,. known in this case as the Hoy tract, and also considerable portions - of the shore front between Communipaw lane and the sugar-house lot, between Washington and Warren streets, in Jersey City. Between April 11th, 1864, and October, 1866, the Central Railroad Company acquired the title of the riparian-owners-between the limits last mentioned, with the exception of a lot belonging to one Arbuckle, which he conveyed to the dock company on the 2d of October, 1866—except that the railroad company had-acquired only an undivided one-half interest in so-much of the shore front of the Jane Van Horne tract as lay north of the one hundred feet which the company purchased of her for its track. The location of this Van Horne tract appears on Mr. Clark’s map, Exhibit No. 64. By two deeds of conveyance, bearing date September 24th,, 1866, and October 15th, 1866, the Central Railroad Company conveyed all its shore front to the dock company—taking back from the dock company a deed for a strip of land one thousand and eighty feet wide, being the strip on which the tracks of the Central railroad leading to the bulkhead in front were laid. The northerly line of this strip is coincident with the southerly line of the West Line grant. The two deeds of October 15th, 1866—the one from the Central Railroad Company to the dock ■company, the other from the dock company to the Central Railroad Company—were parts of one agreement between the two companies, and are to be regarded as one transaction. The situation of the title to the ripa after the conveyance of October 15th, 1866, was this, viz.: Jane Van Horne and the dock company were joint owners of so much of the ripa as lay between the middle of Mill creek and the southern line of the shore end of the West Line grant. The Central Railroad Company was the owner of the tract one thousand and eighty feet wide, before mentioned, which lay next south of the southerly line of the West Line grant, and the dock company was owner of all the rest of the ripa, extending from the sugar-house around to Cavan Point. A short time prior to the conveyances of October 15th, 1866, the Central Railroad Company had become the owner of the entire capital stock of the dock company, and the officers and managers of the two companies were the same persons. At a meeting of the directors of the Central Railroad Company of October 15th, 1866—the same meeting which authorized the conveyance—it appears by the minutes that “ a plan and map for the improvement of the property of the two companies was submitted and approved; ” and at a meeting of the directors of the dock company of November 9th, 1866, similar action was taken by them. Prior to the arrangement of October, 1866, the Central Railroad Company projected a general plan of improvement in Communipaw bay, which was modified by changes and additions from time to time. The details of this plan appear on Clark’s map, Exhibit No. 64. In the latter part of 1866, I think in December, the company adopted a plan for a basin. This basin includes part of the lands embraced in the West Line grant. Its southerly line is one hundred and eighty feet north of the southerly line of the West Line grant, and its northerly line is two hundred feet north of the northerly line of the West Line grant. The location of this basin and of the West Line grant, the basin of 1865, and the tide-water basin of 1872, appears on Map F. After the arrangement of October, 1866, work was begun for the construction of this basin, and before March 19th, 1872, the date of the West Line grant, considerable had been done towards accomplishing that object, by sinking cribs and dredging out within the lines of the cribs. The location and condition of these cribs appear on Map P, with the dates when the several parts of the cribbing were begun and completed. It is apparent from this map and the testimony that, in March, 1872, so much hud been done towards the construction of this basin and the appropriation of the lands within it, that, if the work was done under a license from the state, the license had at that time been so far executed as to have become irrevocable. The work was done under the auspices of the two companies, and avowedly under the charter of the dock company. On the 26th of February, 1867, the Central Railroad Company filed a location of a branch of its railroad upon the cribwork, on the northerly side of this basin. In addition to the work I have just referred to, there was also work done in West Central avenue, west of Jersey avenue, by filling in, part above and part below the line of low water. This work is designated on Map N as “ No. 4.” It was done between 1863 and October, 1868, and is within the extreme southerly line of the West Line grant. This work appears to have been done by the Central Railroad Company under an agreement with Jane Van Horne. The reclamation in West Central avenue, which I have just referred to, was effected while the wharf act of 1851 was in force. On the principles I have stated, the riparian owner acquired an indefeasible title to so much of the land so filled in and reclaimed as lay above ordinary low water. It contains twenty-seven hundredths of an acre. The description of this parcel appears on Exhibit 91. For the lands between high and low-water mark, not reclaimed when the wharf act was repealed, and all the lands improved below low-water mark, the defendants have no title unless the improvements upon them were made under some grant or license emanating from the state. The defendants make their claim of right therein under the act of 1860, authorizing the extension of the Central railroad, and the act of 1864, incorporating the dock company.' On the construction of these two statutes the defendants’ right to the premises just mentioned depends. The problem is whether, in these two legislative acts, or either of them, there is any grant, or, what is the same thing, license executed, which is applicable to the lands in controversy. Public grants, whether they be of lands or franchises, are strictly construed. Herein public grants differ from grants between private persons. Grants between individuals are construed favorably for the grantee. Public grants are construed most favorably for the public and against the grantee. The grantee takes nothing not clearly given. The construction of such grants as applied to public lands arises in two classes of cases. First, where the1 legislature has granted to a corporation a franchise which is a unit, such as for the construction of a railroad between two designated points. In such cases the grant of the franchise will, under some circumstances, carry with it, by implication, power to interfere with other public rights, and the right to use public property, without any special grant to that effect. Thus, in Attorney-General v. Stevens, Sax. 370, the defendants had the power to lay out and construct a railroad from the Delaware river, at some point or points between Cooper’s creek and Newton creek, to some point or points on Raritan bay, and the power to build bridges; but no express authority was given to erect bridges over navigable streams. Chancellor Vroom held that the construction of bridges over navigable streams between the termini being necessary to effect the object of the incorporation, the power to construct them was given by necessary implication. In a more recent case, Chancellor Zabriskie held that an act authorizing a railroad company to extend its railroad across the Raritan river by a bridge, gave the company a right to use the lands of the state under water for the purpose of constructing the bridge. P. P. P. Go. v. N. Y. . 1885, the sum of $25 for each and every foot of the shore embraced and contained in this bill, the amount of the same to be ascertained by a commission to be appointed by the governor, and the extent of the shore front is to be ascertained and measured as follows: Commencing at a point on the southerly side of Cavan Point, at the boundary line of lands, of late, belonging to Stephen B. Vreeland, and at the point where said boundary line strikes the shore of the New York bay, and thence northerly in a straight line to the south line of the lands of the Central Bailroad Company of New Jersey, where it intersects the New York bay; and upon the aggregate amount so ascertained as aforesaid, the said company shall pay to the state interest from the 1st day of July, 1865, at the rate of six per centum per annum, payable semi-annually; and the said aggregate amount so ascertained as aforesaid shall be and remain a lien upon said lands until the payment of the same with the interest thereon; and a certificate of the said commissioners, signed by them and the president of said company, of the measurement of the shore line made as aforesaid, shall be filed in the office of the secretary of state.” The twelfth section declared that payment of a proportionate part of the purchase-money referred to in the eleventh section, should release from the lien therefor a corresponding proportionate part of “ the lands under water, embraced and contained in this bill.” The contention of the defendants is that the dock company, by its charter, acquired by actual grant the lands of the state under water between Cavan Point and the south line of the lands of the Central Railroad Company at Van Horne’s creek, lying between the lines delineated on' Map C as the northerly and southerly lines of the grant, and, in addition thereto, the power to purchase other lands not within the limits mentioned, with a license to improve and appropriate to its own use all lands covered with water lying in front of any lands the company might hold or purchase; and that, the license having been executed by the improvement and appropriation of the locus in quo, before the grant to the West Line company, the title of the dock company to the premises became fixed, and could not be impaired by a subsequent grant by the state. The eleventh section of the charter of the dock company, in fixing the compensation to be paid to the1 state for “ the shore embraced and contained in this bill,” required that the extent of the shore front should be ascertained and measured, commencing at a point on the southerly side of Cavan Point, at the boundary line of lands of late belonging to Stephen B. Vreeland; thence northeasterly in a straight line to the south line of the lands of the Central Railroad Company. The Central Railroad Company, at that time, owned all the lands along the shore between Communipaw lane and Van Horne creek, and the northern terminus of the measurement, as well as the northerly line of the grant, was as definitely fixed by the reference to lands of the Central Railroad Company as -if the reference had been to a fixed monument. The commissioners, measuring between those points, ascertained the length to be four thousand five hundred and eighty-nine feet, and reported the same to the governor, with a map. The consideration of the grant—$25 a foot on this measurement, amounting to $114,715—the dock company paid in November, 1866, with the interest thereon. The West Line grant is, at its nearest point, distant three thousand six hundred and sixty-five feet from the northerly point • of the measurement of the'dock grant by the commissioners; and between the West Line grant and the lands measured, is the tract of the Central Railroad Company, one thousand and eighty feet wide, which, at the shore point, is seven hundred and thirty feet wide, and is used by the Central Railroad Company for its track and other railroad purposes. The dock company claims that, by its charter, it obtained a license to reclaim and improve, for its own benefit, lands of the state under water as far north of the bounds of its actual grant as to include the location of the ’West Line grant, comprising between the shore line and the exterior line of the riparian commissioners, several hundred acres of lands under water, and that, having regard to the basis on which’ the consideration for the grant was estimated, this license to reclaim and appropriate lands of the state was given as a gratuity. A claim of such magnitude against the state should not be supported on doubtful or ambiguous words. Townsend v. Brown, j ZaB. 80. To adopt the language of the supreme court of the United States, the right must be so clearly defined that there can be no question of the purpose of the legislature to confer it. Leavenworth JR. JR. Co. v. United States, 92 U. S. 7SS. . The dock company’s claim of right in this respect rests upon the fifth and sixth sections of its charter. The fifth section, after authorizing the company to receive conveyances for lands then owned as aforesaid (that is, by the promoters of the company) between the south line of lands of the Central Railroad Company and Cavan Point, enacted that “ the said company are hereby authorized to purchase and hold any lands adjoining or near the above-mentioned tracts which they may deem necessary for improving and enlarging said property.” The sixth section authorizes the company to improve all and every portion of the said lands under water held or purchased by them as aforesaid, by erecting buildings, laying out streets &c., and further, enacts that “they shall have liberty to fill up, raise, occupy, possess and enjoy as their own, all lands covered with water which they may hold or purchase, or which may lie in front of any lands which they may hold or purchase.” It is manifest that the foundation of the dock company’s right in these premises rests on the words of the fifth section—“to purchase and hold any lands adjoining or near the tracts above mentioned; ” for the power given to the company by the sixth section to improve and acquire, by improvement, lands of the state, by reclamation and improvement, must be applied to such lands as the company was expressly authorized, in its charter, to purchase and hold. It cannot be so wide in its scope as to apply to lands which any corporation, by the general corporation law, is authorized to take and hold. The words “ adjoining or near,” in the grant of power to purchase and hold, in the fifth section, are the words which give signification to the company’s present claim. The word “ adjoining ” is wholly inapplicable to the lands in the West Line grant —separated, as the latter is, from the lands of the dock company, by a strip of land of considerable width, belonging to the Central Railroad Company, and essential for the use of that company for railroad purposes. The word “ near ” is a relative term, having no positive or precise meaning, and its import can be determined only by surrounding facts and circumstances. % Abb. Law Diet, p. 156 tit. “ Near.” The whole strip of land between Cavan Point and Van Horne creek once belonged to Stephen Vreeland. In 1848 an act was passed, authorizing him to build a dock or wharf in front of his lands, at Cavan Point, a sufficient distance into the bay for the accommodation of vessels navigating the same. P. L. of 18 j8 p. 75. In 1849, on his petition representing that, owing to continual encroachments of the waters of the bay, his landmarks had been destroyed, the legislature passed an act appointing commissioners to ascertain the metes and bounds of his lands covered by the waters of the bay, and declaring that their report should be evidence, so far as concerned the state, of his title to the lands designated and mapped out as belonging to him. The commissioners’ map (Exhibit No. 78) shows that the lines designated were considerably below ordinary high water. On the 11th of April, 1864, when the act incorporating the dock company was passed, Gilbert and Hodges, two of the corporators named in the act, owned the undivided one-half part of the tract lying across the boundary line of the townships of Bergen and Greenville; and. Hoy, another corporator, owned the other undivided half.. This tract is marked in red on Map C, and comprises about one-half of the shore front between Van Horne creek and Cavan Point. The shore front between the latter tract and Cavan Point was owned by Andrew Clerk, to whom it had been, conveyed by Nicholas L. Vreeland and Stephen B. Vreeland, in separate parcels—Nicholas owning the shore ' front next to the tract in red, and Stephen owning from the lands of Nicholas to Cavan Point. In front of these lands, and within the lines indicated in the charter of the dock company, there was a tract of ten acres of land under water, which the state, in 1837,. had granted to Aaron Ogden by metes and bounds. There were then, at the time this charter was passed, lands within the lines mentioned in that act, to which the words “ adjoining or near ” were appropriate, and the dock company, in fact, subsequently acquired title to those lands by conveyances—from Andrew Clerk for the two Vreeland tracts, and from Cornelison for the-Ogden tract. I think there are also indications in this act of a legislative-intent adverse to the claim of right now made under it. The-preamble recites that the individuals named and others, their associates, “now own certain tracts of land, situate” &c., “and desire to acquire from the state other tracts of land contiguous thereto, covered by water.” It contains no other allusion to rights in the .lands of the state; and for every foot of land the state granted, it exacted a price—$25 a foot; and by the proviso in the sixth section following, and therefore qualifying the words I have already quoted from that section, it is provided that the-southerly line of said improvement into the bay shall be on a. line commencing on the southerly side of Cavan Point, at a point where the boundary line of lands late of Stephen Vreeland strikes the shore; and from thence running south, forty-six degrees and thirty-nine minutes east, to the channel of the Hudson river; and that the northerly line shall be parallel to and with the said southerly line. The location of this northerly line-is fixed at the south line of lands of the Central Railroad Company. The designation of these lines by a fixed course indicates-.a purpose to establish boundaries, and to limit the rights granted within prescribed bounds. That purpose is further indicated in the eleventh section, which provides that $25 shall be paid “ for • each foot of shore embraced and contained in this bill,” and that the extent of the shore front is to be ascertained and measured between the designated points. This section made the price a lien “upon the said lands” until payment be made; and the twelfth section declares that payment of a proportionate part of the price should release from the lien a corresponding proportionate part of “ the lands under water embraced in this bill.” Every word contained in the grant of power to purchase and hold lands for the purpose of improving and enlarging the property of the corporators will be satisfied by purchases within the boundaries designated in the act; and I do not find in the .act that clear expression of intent that the company might, by purchases from shore-owners outside of those limits, appropriate lands of the state beyond those expressly granted, which is neces■sary to create such a right against the state, and to enable the ■ company to take the state’s lands to an indefinite extent without making any compensation for them; especially when the legislature indicated an intention not to donate, but to sell to the company, lands of the state at a fixed price per foot. On the best consideration I could give this case, in the time .afforded, I have reached the conclusions I have above stated. If my judgment upon the legal rights of these parties is erroneous, I have at least put the case in a shape convenient for review. To give effect to the views of the court, you should find a verdict for the plaintiff, and that the New Jersey West Line Railxoad Company took title and a right of possession to the lands -described in its grant, except for that-part in West Central avenue which was between the lines of high and low water, the description of which is set out in Exhibit No. 91.