Fitzgerald v. Faunce

1. The Riparian act of 18G9, which gives the riparian commissioners power to make grants of lands of the state under tide-waters to other persons than riparian owners, applies only to the tide-waters of the Hudson river, New York bay aDd Kill von Kull, lying between Engard’s dock on the Kill von Kull and the New York State line. Provision for grants of the state’s lands under tide-water by the commissioners elsewhere than within the territory designated in the act of 1869, is made by the act of March 21st, 1871, which authorizes grants to riparian owners only. 2. W., the owner of a farm situate on the tide-waters of the Delaware river, in 1808 conveyed to F., his heirs and assigns, “the sole right, use and enjoyment for all purposes of fishing whatsoever, and for no other purpose, “ of a strip of land, the boundaries of which were along the middle of an artificial bank four feet wide on top, which had been constructed to prevent the flow of tides over the lowland, until the line strikes the natural bank, thence to a stone near the Delaware river, and from thence into the river to,low-water mark, thence, &c.; with a covenant of warranty against all persons claiming under the grantor or his heirs. In 1819 W. conveyed the farm to N., with an exception and reservation of the fishery, and privileges granted to F. by the deed of 1818. In 1876 the plaintiff, who acquired title under N., obtained from the riparian commissioners a grant of the state’s land’under tide-water in front of the premises. In an action of trespass against persons who had succeeded to the fishery and rights granted by W. to F. by the deed of 1818—Held, that the deed to F. conveyed an actual estate in the strip of land next to the river, and he became thereby riparian owner; and that if the estate granted to F. and his heirs and assigns was so qualified, as to use, that neither he nor they could make a grant from the state available, the intervention of it between the upland and the river would make the plaintiff's grant from the riparian commissioners inoperative as against the estate and rights granted and conveyed by W. to F. by the deed of 1818.

On error to the Gloucester Circuit. This suit is an action of trespass to recover damages for an unlawful entry upon lands of the plaintiff, situate in the township of West Deptford, in the county of Gloucester, consisting in part of upland and in part of land under the waters of the Delaware river. The acts complained of as trespass were divers acts done in the working of a fishery in April and May, 1881. Fitzgerald, the plaintiff, derived his title to the upland from Samuel 'Whitall, who obtained title by a deed from Biddle Reeves and others, dated March 10th, 1798. The defendant pleaded several pleas, among which were the general issue, and a justification under a grant from Whitall. Whitall, by a deed of conveyance executed by himself and wife, dated December 4th, 1818, acknowledged the same day, and duly recorded April 8th, 1819, granted, bargained, sold, released and confirmed unto Christian Faunce, his heirs and assigns, for the consideration of $5000, as follows: “All that lot of ground situate, &c., bounded as follows: Beginning at a stone near the river Delaware, thence north, fifty-three degrees twenty-five minutes east, one chain and fifty-nine links; thence north, thirty-six degrees thirty-five minutes west, to low-water mark of the river Delaware; thence along the low-water mark till the same intersects a line running north, thirty-six degrees thirty-five minutes west, to the beginning corner; thence along the said line of south, thirty-six degrees thirty-five minutes east, to the beginning; and in case the high-water mark should encroach upon the said lot, then the southerly line of the same to be‘extended back so far as to leave eighty feet from the high-water mark and the southerly line, and also the sole right, privilege, use and enjoyment at all times for all purposes of fishing whatsoever, and for no other purpose, of the two following lots: The first beginning at the middle of the present sluice in Little Mantua creek, which said beginning bears north, thirty-eight degrees east, from the top northwest corner of James Hopkins’ house, and north, eighty degrees fifty minutes west, from the northwest corner of Samuel Whitall’s house; thence north, sixty-six degrees forty-five minutes east, two chains and nine links, to the middle of the meadow bank; thence along the middle of the said bank north, thirty-five degrees fifteen minutes east, five chains twenty-five links; thence still along the middle of said bank north, fifty-six degrees forty-five minutes east, thirteen chains; thence north, fifty-three degrees twenty-five minutes east, four chains thirteen links, to the stone, the beginning of the lot above mentioned; thence along the said lot north, thirty-six degrees twenty-five minutes west, to low-water mark; thence down the low-water mark till the same’ intersects a line of a-due north course from the beginning; thence south to the place of beginning. The second beginning at the end of the first course of the lot first above mentioned; thence north, forty-nine degrees thirty minutes east, nine chains fifteen links; thence south, eighty-seven degrees ten minutes east, five chains; thence north, forty-seven degrees east, eight chains ninety links, to a stone on Benjamin Wilkins’ line, bearing north, forty-eight degrees fifty minutes east, from the south chimney of James Hopkins’ house, and south, eight degrees east, from the flag-staff at the fort; thence along Benjamin Wilkins’ line to the low-water mark of the river Delaware; thence down the low-water mark till the same intersects, a course of south, thirty-six degrees thirty-five minutes east, to the beginning corner; thence south, thirty-six degrees thirty-five minutes east, to the beginning. And also the right and privilege of laying off the nets used on the said ground at the flood fishing as low down the river as a course of south, thirty degrees west, from the lower cabin, which cabin stands chains fifty links below the beginning corner at the sluice in Little Mantua creek, or as low down as a course.from the said lower cabin to the wreck of the Augusta; and also the right and privilege of laying the nets used during the season of shad and herring fishing to dry on the meadow of the said Samuel Whitall, between the lot first above granted and where the soap-house now stands, the said Samuel Whitall reserving to himself, his heirs and assigns, the right and privilege of laying off the nets used on his lower fishing ground at the ebb fishing for shad and herring as high up the river as a course of north, thirty degrees west, from the upper end of the course above mentioned of north, fifty-six degrees and forty-five minutes east, thirteen chains. To have and to hold the premises hereby granted unto the only proper use, benefit and behoof, of the said Christian Fauntz, his heirs and assigns forever.” The deed contained a covenant of special warranty by Whitall and his heirs with Faunce, his heirs and assigns, to warrant and forever defend against all persons claiming under the grantor or his heirs. Whitall, on the 13th of February, 1819, conveyed the upland, containing two hundred and twenty-eight and sixty-two hundredths acres, to William Newbold, by metes and bounds, together with all the mud flats, shores, landings, waters, water-courses, improvements, rights, liberties, privileges, hereditaments and appurtenances, &c., “ excepting and reserving the lot of ground and fishery and all other privileges granted and conveyed by the said Samuel Whitall to Christian Faunce by deed dated the 4th day of December, 1818.” William Newbold died in 1828, and William F. Newbold, as his devisee, and by releases from other devisees, became the owner of two hundred and six acres of the lands last mentioned. William F. Newbold, by a deed to Christian Faunce and others, bearing date November 7th, 1834, conveying to them the lower fishery, released and discharged the right of laying off nets used on the lower fishery, which Samuel Whitall, in his deed to Christian Faunce, of 1818, had reserved to himself. William F. Newbold afterwards, by a deed dated December 29th, 1874, conveyed one hundred and sixty-five and twenty-nine hundredths acres, part of the lands he had acquired under his father’s will, and by releases from his co-devisees, to Robert K. Matlock, and Matlock conveyed the same premises to William Fitzgerald, the plaintiff, by a deed dated January 27th, 1876. Fitzgerald, the plaintiff, on the 10th of March, 1877, obtained from the riparian commissioners a grant of. a lease of lands flowed by the tide-waters of the Delaware, and extending out twelve hundred feet to the exterior wharf line established by the riparian commissioners. The grant of the riparian commissioners embraces all the land under water lying between high-water mark and the exterior line in front ■of the last two lots described in the deed from Whitall to Christian Faunce of December 4th, 1818. The trespasses complained of were upon the first of these two tracts. The fishery had been worked before 1818. The Faunces had been taxed for it as a fishery from 1818 or 1819. In 1820 Christian Faunce filed a description of the fishing place in the clerk’s office pursuant to the statute. Rev., p. 428, § 18. In April, 1881, a description of it was again filed by the then owners. Daniel Faunce, Jr., the defendant, succeeded to the rights and estate granted and conveyed to Christian Faunce by Whitall, and in virtue of this privity of estate justified the acts coniplained of as trespasses. This cause was tried before Justice Parker in the Gloucester county Circuit Court, in which the action was brought, and was removed into this court by writ óf error. Upon submitting the cause to the jury, the court charged as follows: Gentlemen of the Jury—This suit is in the form of trespass. The plaintiff in his declaration complains that on the 1st day of April, 1881, and on other days afterwards, up to the time of the commencement of this suit, the defendant, with his workmen, broke and entered the close of the plaintiff, situated in the township of West Deptford, in this county, and committed various acts of trespass thereon as set forth in the declaration, by means of which the plaintiff suffered damages. The suit is brought to recover damages for a series of alleged trespasses occurring in the months of April and May, in the year 1881. The premises on which the trespasses are charged to have been committed are described in the declaration as part upland, and part land under the tide-waters of the river Delaware, and lie contiguous. To prove title to the upland, several deeds are put in evidence. It appears that a little before the beginning of the present century, the farm of plaintiff was part of a larger tract owned by Trent Francis, and that after his death it was conveyed by his widow and executrix to one Samuel Whitall, who subsequently conveyed to one William Newbold. After the death of William Newbold, his devisees quit-claimed to his son, William F. Newbold; he conveyed to Robert K. Matlock, from whom the plaintiff received his deed on the 27th of January, 1876. Although the description in these deeds calls for low-water mark, in law they conveyed only to high water, for a reason which will hereafter appear. The other part of the premises, adjoining the upland along high-water mark and running out in the river in front of his farm, the plaintiff claims under what is called a perpetual lease, with the privilege of obtaining an absolute grant at a fixed price. This lease -was given to plaintiff by the riparian commissioners on the part of the State of New Jersey, or rather by the state through the commissioners and governor for the time being on the 10th of March, 1877. The description in the lease includes the land flowed by the tide-waters of the Delaware river and Great Mantua creek, beginning at a point in high-water mark of the river in the centre of the road leading from the Crown Point road to the river; thence north, twenty-eight degrees and twenty minutes west, twelve hundred feet, to the exterior wharf line established in the river by the riparian commissioners, and thence down the river, following the exterior wharf line as far as plaintiff’s farm extends, and being all the land under the tide-waters of the river in front of plaintiff’s farm from high-water mark to said exterior line, excepting only land under water in front of the small upper cabin lot of the Faunces, because plaintiff was not riparian owner of that lot. • This lease was made by the state to the plaintiff as riparian proprietor, under and by virtue of the statutes of the state on that subject. The papers in the cause show that at the time of the lease he was riparian owner. The deeds before mentioned and this lease included the loeus in quo as described in the declaration, and embrace all the premises both above and below high-water mark, on which the several trespasses were alleged to have been committed. That the defendant and his workmen did the acts which the plaintiff charges as trespasses at the time and places alleged within the description of these conveyances and lease, is not denied. The defendant admits that he took down the fence, or directed it done; that he led the horses through on the land inside the bank, and on the bank, whenever it was necessary for the purposes of a fishery to take them to and from the windlasses; that the windlasses were placed permanently in the soil, part on outside and part inside or on the bank, and were kept there year after year, and used by him in 1881; that he and his men used the bank in the prosecution of their business of fishing throughout the season of 1881; that at high water they made hauls and took out the fish near the foot of the bank, and at low water just outside the flats, and occupied the flats included in the plaintiff’s lease so far as was necessary. Now, if defendant had no legal right to do the acts complained of, if neither he nor the persons under whom he was acting had a right of several fishery there, these acts were trespasses for which the true owner of the land should recover damages. My instructions to you, gentlemen, are, that upon the evidence produced by the plaintiff, and thus far stated by mej the plaintiff was the owner of the loous in quo, whether above or below high-water mark, and you will so find unless the defendant has proved a better title or has made out a legal justification of'his acts by virtue of a right in himself or those under whom he acted to a several fishery there. The defendant claims that he had such right and that he has shown it, and is therefore.justified in what he did. If this be so, if he has shown such right, he is entitled to your verdict. If the defendant, in the fishing season of 1881, had the legal right to fish there with as many men as was necessary to operate the fishery to advantage, he was not a trespasser, •unless, in the prosecution of the work, he or those under him,' with his command or knowledge, did unnecessary damage or transcended any privilege given them by conveyances from the owner of the upland from whom the alleged fishery came. Is there proof that defendant or his employes did anything more on the lands of plaintiff than was actually necessary to carry on the business of fishing at the place, or anything more than was authorized by the rights and privileges in conducting the business of fishing there, contained and granted in the deeds from the former owners of the farm ? If, in the prosecution of the work there, defendant, either negligently or carelessly or intentionally, damaged the plaintiff unnecessarily and beyond the privileges alleged to have been granted by Whitall on the upland, the jury should find for plaintiff the amount of such damages, whatever may be the law as to the right of the defendant within the bounds of the lease from the state. Of course if defendant had no right of several fishery at all he is liable for all his acts of trespass. If he had a right of several fishery he is only responsible for unnecessary damage or damages committed in excess of the rights granted to Christian Faunce by Whitall on the upland. This is a question for the jury. The real question in this cause is, Had the defendant, or those under whom he was operating a fishery there in 1881, a right of several fishery in that pool? If they had not, defendant is liable for all damages proved; if they had such right of several fishery he would be liable only for damages from unnecessary acts, if any, as are proved; and if none such appear then defendant is entitled to a verdict. The defendant claims that the persons under whom he operated the fishery had a legal right thereto through deeds from prior owners of the farm, claiming also to be owner of the fishery. Two conveyances are produced which purport to convey the fishery. The first is dated December 4th, 1818, from Samuel Whitall (who at that time was the owner of plaintiff's farm) to Christian Faunce. This conveyance, after granting the cabin lot, purported to convey whatever right, privilege, use and enjoyment Whitall had for purposes of fishing, and no other purposes, of premises along on middle of the bank in part lying between Little Mantua creek and the cabin lot,, then out in the river to low-water mark, and down the river at low-water mark, with the right and privilege of laying off the nets used on said ground at the flood fishing, and also of' laying nets on certain meadow land of Whitall. I may not give the precise language of the deed but its substance. This deed purported to convey a right of several fishery on that shore from the then shore-owner, which subsequently was sought to be perfected by a conveyance from William F. Newbold, a subsequent owner, in 1834, to the Faunces, of the next lower fishery, and a certain right of fishing in this which Whitall had reserved in his deed to Christian Faunce. To make these deeds from Whitall and from Newbold of any avail to defendant, it should appear that at the time of the execution of the papers these grantors, or one of them, owned a several fishery at the place in question. They could not give title unless they were themselves owners of the right, and the deeds offered by defendant for the fishing right will not justify him unless it shall appear that such right existed in them, or one of them. By the common law the land-owner had no right beyond, high-water mark, and therefore could not, under such law,, derive title to a several fishery by deed from the proprietors. It has been decided in this state by the court of last resort,, that at common law the State of New Jersey is the absolute owner of land in all navigable waters where the tide ebbs and flows within the territorial limits of the state, and that the state can grant such land to any one to be for his exclusive use. Where, then, did Whitall or Newbold get a right of several fishery, if they had it? Did the right of several fishery come by prescription to-them ? My charge to you is, gentlemen, that neither the Fauncesnor their grantors had title to this alleged several fishery by prescription, use or adverse possession, adverse to the state.. It could not be adverse, if, as defendant claims, the right has been continually protected by the state. But the defendant interposed another ground of defence, which may be thus briefly stated: Admitting that by the common law the riparian owner holds only to high-water mark, and that by the same law the state is the owner absolutely of all the lands under the waters below high-water mark, and may sell her right to whom she pleases, yet that there is a local custom, or local common law in New Jersey, applicable to shore fisheries along the river Delaware, which recognizes the right of property in several fishery, and that this right has been acknowledged and maintained by the legislature and the courts. Consequently it is argued that whatever right the state passed to plaintiff must be subject to this right of several fishery, if there was a fishery there before the giving of the lease. Now this is the important question of this case, in the presence of which all others must sink into insignificance. Very valuable interests depend upon the solution of this question. The shore fisheries on the Jersey side of the Delaware river below the falls at Trenton are of immense value. There is no question that the legislature of the state has, by repeated acts, intended for the protection of shore fisheries, recognized them as property. These acts began at a very early day and continued at least in each decade, by new acts or supplements, almost from the time of the acknowledged independence of the state in 1783 to the present time. In and by these acts the claimants of these several fisheries are called owners, and penalties are fixed for invading the pools which they claim in front of their shores, provided they file descriptions thereof, with a bond, in the clerk’s office of the county. These fisheries were thought of such importance that in 1783 they entered largely into a treaty between New Jersey and a sister state, on the the other shore, in respect to jurisdiction over the Delaware river, and the right of guarding the fisheries on the river annexed to the ■respective shores was thereby guaranteed. In 1799 an act was passed subjecting persons having command of ships and other vessels and craft anchoring on fishing grounds, to a penalty, unless they were removed immediately upon request of the owner or occupier of such fishery, the penalty to be recovered by the owner or occupier. Acts have been passed almost annually for the last hundred years, providing for the taxing of fisheries. At first the designation in the act was “ accustomed fisheries, the property of private persons,” and afterwards the word “ fisheries ” alone was used. Under these acts shore fisheries in the tidewaters of the Delaware have been taxed. This very Faunce fishery, we are told by a witness, has paid tax for over sixty years. Shore fisheries on the Delaware have been conveyed and devised as real estate, and been the subject of partition in our courts from a very early period. Sometimes they passed with the shore, at other times they were detached, but whether united or severed from the shore they were regarded and treated as real property. The evidence shows this to have been the case from the early part of ihe eighteenth century. Having very hastily noticed the current of legislation on the subject of fisheries in the Delaware, and called attention as briefly as possible to the common understanding, not only of the owners but the public and the courts, granting partition or sale of such property upon which the idea of local custom or local common law seems to have been drawn, I will inquire if a local common law in New Jersey in regard to rights of riparian owners on tide waters, differing from the common law of England, has been recognized and affirmed by the courts in this state. The celebrated case of Gough v. Bell, decided that there was such a thing as local common law in New Jersey. It is true the controversy there was not in reference to fisheries, but in reference to the right to dock out and improve by riparian owner in front of his lands between high and low water. The common law of England gave the land to the state below high water, but the court held that a local common law authorized the riparian owner to improve in front of his lands below high water, and he could hold them after the improvement, if made before the state, or her grantees, asserted her rights. In the discussion of counsel, and in the opinions of the judges in that case, it was taken for granted that a local custom or local common law existed in respect to the right of several fishery on the river Delaware, which was used by some of the judges as an evidence that there were changes in this state, in some respects, of the common law, as to rights of riparian owners. In order to make this subject plainer it will be well to quote some extracts from the opinions of the judges in the case of Gough v. Bell. Chief Justice Green presided in the Supreme Court when that case was argued, and read an elaborate and carefully prepared opinion. He was one of the ablest jurists this state or the country has produced, and coming from him the extracts I quote have great significance. He says: “ Notwithstanding the acknowledged title of the state in her sovereign capacity to the soil of navigable rivers below high-water mark, there has undoubtedly existed from a very early period, rights of the riparian proprietors which have been recognized by the legislature, inconsistent with the idea of that exclusive property in the state, sanctioned by the rule of the common law.” Then the Chief Justice mentions several acts of the legislature, to which I have alluded, which recognize the right of property in shore fisheries on the Delaware river, and he then added : “ Such repeated and unequivocal legislative recognition of a right furnishes proof of its existence which cannot be disregarded.” Chief Justice Green quotes Mr. Griffith (a very able lawyer, residing at Burlington, familiar with titles in West Jersey,) as saying: “This species of property [referring to fisheries] from the earliest times has been the subject of exclusive enjoyment and alienation like any other.” The Chief Justice then further adds r “ This claim, it is clear, is totally irreconcilable with the rules of the ancient common law'touching property in the soil on shores of navigable rivers, and if the claim rested only on the principle of the common law in England it cannot be sustained. The right of the riparian proprietors to an exclusive-right of fishery in the tide waters in front of their lauds must rest, it is apprehended, on custom or local usage variant from the common law. There is, then, I conceive, unquestionably a local common law affecting the title of riparian proprietors-upon tide-waters, and conferring upon them rights and privileges unknown to the common law of England.” In the Court of Errors and Appeals the decision of the Supreme Court in Gough v. Bell was affirmed, and the opinion of Chief Justice Green approved. In the opinion of Judge Ogden, who was known in East Jersey as a sound lawyer, the following occurs: “ By the common law of England the proprietors of lands bordering on navigable tide-waters had title to ordinary high-water mark, and the soil beyond that line was vested exclusively in the crown. Proprietors of such lands in New Jersey, from a very early period in her history, have enjoyed for their individual benefit and in private ownership privileges upon the shore adverse to. the exercise of the sovereignty of the supreme power, excepting when employed for the protection of the rights of navigation and eminent domain. The origin of such infringement upon the rules of the common law of England has not been satisfactorily traced, but its existence has been repeatedly recognized in legislative enactments and its enjoyment has been uninterruptedly claimed. One exercise of such right, not supported by the doctrines of the common law of England, regards exclusive fishery in front of his land.” I come now to give some extracts from the opinion of Judge Elmer, a most remarkable man, and an extremely able judge, whose ripe experience, great learning and excellent judgment have been of much value to New Jersey, in shaping the jurisprudence of the state on many vital questions. He was a resident of West Jersey ■during the whole of his long and honorable career, and he knew what he was writing about when he wrote his opinion in the case of Gough v. Bell, in the Court of Errors and Appeals. He said: “ The question is not what was the common law of England, but what is the common law of this state. That some of the doctrines of the common law have never been considered applicable to our circumstances and never have been adopted here, and that others have been materially changed by our local usages, is not disputed. We are now to consider whether the rules of the common law, in regard to the ownership of property adjoining the sea or our navigable waters, have been adopted in this state, or whether there is ■evidence that they never have been in force here, or have been materially changed. An excellency of the system of common law derived originally from the general custom of the country is that it is not so inflexible as a statute, but may be modified from time to time as circumstances require. It is conceded,” he says, “ as well by those who contend for the application of the strict rule of the English common law to the shores of navigable waters in this state, as by those who think we have a local common law on the subject different from that of England, that the owners of the adjoining land in this state have the exclusive right of fishery on such shore.” It was the opinion of Judge Elmer that the right of several fishery in the shore-owner had its origin in the uniform practice of the holder of the upland to extend his exclusive right to the soil beyond high-water mark. But it matters not how the right originated. The question which concerns us is, whether the right to several fishery in the shore-owner on the Delaware river existed and does exist. In the Circuit Court of the United States, Judge Baldwin, a man of acknowledged ability, held the same view, and said in Bennett v. Boggs: “ It is admitted that from a very early period of the history of the state shore fisheries have been considered private property, capable of being devised and alienated with or separate from the land to which they are annexed, subject to taxation and taxed as other real estate.” This doctrine so ably set forth by Chief Justice Green in Gough v. Bell has as late as-1870 been approved by the acute and logical mind of the present Chief Justice of this state, so that it may be and must be now considered as established law that there is a right of fishery, a right of property in fisheries in the shore-owners, and their assigns, on the Delaware river on the Jersey . side, and that such right of property has been recognized by the courts. Had Whitall such property in the fishery in question in 1818 when he made the deed thereof to ChristianFaunce; or had Newbold a property in the rights and privileges of fishing he granted to the Faunces in 1834; was this fishery one that has been recognized as private property? Was it of the class referred to by those learned judges? It is an ancient fishery going back of the year 1800—how far back of that time is not proved. The description of the pool of this fishery, and accompanying bond, have been filed in the-clerk’s office almost every year for over sixty years, commencing almost immediately after the law on that subject was passed, and for over sixty years taxes have been annually paid by the owners on this fishery. It has been operated, as a fishery every year. Guided by the opinions of the eminent jurists I have named, and adopting their views, I charge you, as matter of law, that under the evidence the defendant, in the spring of 1881, when the trespasses are alleged to have been committed by him, had a right, or those under whom he claimed had a right, of fishery there; that plaintiff held his lease subject to such right of fishery, and the defendant is entitled to your verdict, unless, as I before said, you find he did acts which did damage to the plaintiff that were not necessary to his operating the fishery, or which were outside of and beyond the rights and privileges of fishing granted to Christian Faunce in 1818 and 1834 by the then land-owners. And if he did commit acts in excess of these rights and privileges, your verdict should be for plaintiff in such amount of damages as you find resulted therefrom.