The first question in the order in which they have been argued with much learning and ability, is that affecting the jurisdiction of this court over the subject matter of the suit.
Originally all actions were tried in the proper county in which they arose, pursuant to the maxim, “Vieini vicinorum facta presumuntur scire.” Now all personal actions, as debt, det-inue, assault, deceit, trover, &c. may be brought in any county. But actions real and mixed, as trespasses quare clausum fregit, ejectment, waste, &c. must be laid in the counties where the land lies, and if not so laid, it is cause of demurrer. 1 Bac. Abr. tit. “Actions Local and Transitory,” A. This distinction between actions local and transitory, is still maintained (Livingston v. Jefferson [Case No. 8,411]) even at the expense of a failure of justice. The present is undoubtedly to be classed with local actions. But it often happens that indictments for criminal offences, and actions on the case for injuries to real property and other cases local in their nature, are founded upon things done in two or more counties, which are necessary to constitute the offence. Formerly where a nuisance was done in one county to lands lying in another, an assisa in confinio comitatus lay at common law. Fitzh. Nat. Brev. 183, 184. “And albeit,” says, Lord Coke, “the counties do not adjoin, but there be twenty counties mean between them, yet the assize in confinio comitatus doth lie, and the justices shall sit between the said counties.” Co. Litt. 154a. And if a declaration contained matters lying in two counties, it was tried by both counties on a venire directed to the sheriff of both counties, who summoned six of each county. But such proceedings have long been obsolete and the doctrine-established in Bulwer’s Case, 7 Coke, 2a, has ever since been held as law both in England and this country: “That where the action is ! founded on two things done in several counties and both are material and traversable, and' the one without the other doth not maintain the action, then the plaintiff may bring his action in which of the counties he will.” Thus, if a man does not repair a well in Essex which he ought to repair, whereby my land in Mid-dlesex is drowned, I may bring my action in Essex, for there is the default as it is adjudged, in 7 Hen. IV. pi. 8, or I may bring it in-Middlesex, for there I have the damage, as is proved by 11 Rich. II., ‘Action sur the Case,r 30.” Gawen v. Hussee, 1 Dyer, 38a; Scott v. Brest, 2 Term R. 241; Mayor, etc., v. Cole, 7 Term R. 583; Rex v. Burdett, 4 Barn. & Ald. 95; Oliphant v. Smith, 3 Pen. & W. 180. ; It has been objected to the application of i this doctrine, to the jn-esent ease, that it re-j fers to counties which adjoin, and not to sovereign states. This is a distinction, it is true, between the cases cited and the present, but we have heard no reason given why it should i make a difference. Actions may be maintain^ ed in the courts of New Jersey by a Pennsyl--vanian to recover a debt or damage for a personal injury: And why not for an injury to real property? The answer must be, because *11the action is local and not transitory. The difficulty is caused not by any principles of international law, but by the common law, which is the same in both states. By the common law then, it must be solved. The objection is founded not on the plaintiff’s right to a remedy, but on the mode of trial; and is after all but an objection to the venire. But I have shown that the venire is well laid in New Jersey, (which as regards this court forriis one county) because the nuisance complained of was created in that state. If then the action be local, and this its proper venue, what is the value of the distinction? The plea to the jurisdiction must therefore be ovemiled.
Are the defendants then a publick corporation and therefore as publick officers who have acted within the scope of their authority and without malice or oppression, not liable for consequential injury? Where a party attempts to justify under a publick law, for a consequential injury inflicted on the property of another, he must show that he was a pub-lick officer, in the performance of a duty imposed upon him by law; that he did not exceed his authority, but acted according to the best of his skill and judgment, doing that only which it was his duty to do. Governor, etc., v. Meredith, 4 Term R. 794; Sutton v. Clarke, 6 Taunt. 29; Boulton v. Crowther, 2 Barn. & C. 703; Hall v. Smith, 2 Bing. 156.
In the popular meaning of the term nearly every corporation is publick, inasmuch as they are all created for the publick benefit. Yet If the whole interest does not belong to the government, or if the corporation is not created for the administration of political or municipal power, it is a private corporation. Thus all bank, bridge, turnpike, rail road, and canal companies are private corporations. In these and other similar cases, the uses may in a certain sense be called publick, but the corporations are private, as much so as if the franchises were vested in a single person. Dartmouth College v. Woodward, 4 Wheat. [17 U. S.] 669. The state by virtue of its right of eminent domain, may take private property for publick purposes upon making compensation. It may delegate this power to a private corporation by reason of the benefit to accrue to the publick, from the use of the improvements to be constructed by the corporation. But such delegation of power to be used for private emolument as well as publick benefit, does not clothe the corporation with the inviolability or immunity of publick officers performing publick functions.
In the case of Ten Eyck v. Delaware & R. Canal Co., 3 Har. [18 N. J. Law] 204, the supreme court of New Jersey in their opinion delivered by Nevius, J., speaking of the corporation defendant in this case, very correctly say: “Whatever may have been the objects of this corporation, whether to erect a publick navigable highway, or to improve the navigation of the Raritan river,' or whether the publick have the right to the use and enjoyment of these improvements when made or not, the company are essentially a private company, and are not the agents of the state. Their works arc not constructed by the requirement of the state. The state could not compel the company to construct this canal. It has permitted them to do so at their own request. The whole scope of their charter indicates clearly, that the legislature did not intend to interfere with private and vested rights, without providing a recompense to be paid by the company and not by the state; and if the injury or damage has accrued to the private property or rights of others, which could not be foreseen or anticipated, and are therefore not provided for in the charter of the company; this constitutes no reason why the party thus injured should not be compensated.”
As an exposition of the law of this state, this case is binding on this court; and we fully concur in the principles of law laid down by the judge who delivered the opinion of the court. And see Sinnickson v. Johnson, 2 Har. [17 N. J. Law] 150; Stevens v. Proprietors of Middlesex Canal, 12 Mass. 466; and Crittenden v. Wilson. 5 Cow. 165.
The case of Monongahela Nav. Co. v. Coons, 6 Watts & S. 101, in Pennsylvania, has been relied upon as establishing a contrary doctrine. It is true, that in that case, the Monongahela Navigation Company was a private corporation. They had power to make a slack water navigation in the Monongahela river, by the erection of dams and locks in the same; and the act of incorporation required them to make compensation for injuries done to private property on the Monongahela, but made no provision for compensation for like injuries on the Youghiogany its confluent, -because the company were not empowered to back the water or affect its natural flow in the You-ghiogany. But the company the erection of a dam in the Monongahela below the mouth of the Youghiogany. destroyed a mill erected on that stream, under a license from the commonwealth, and were held not liable to make compensation. But this case seems founded on doctrines peculiar to the courts of Pennsylvania; and although in the determination of points hereafter to be considered in this ease, it will be quoted as binding authority; for the purposes of the question now under consideration, we must be governed by the law as established by the courts of New Jersey.
If therefore, the plaintiff's claim for damages in this ease, had arisen from the flooding of his land either on the New Jersey or Pennsylvania side of the river, by the dam ra-wing wall erected by defendants for the purpose of feeding their canal: or for injury to a mill erected on a private stream by flowing back the waters of the river; the case would probably have ended here, and the plaintiff been entitled to judgment.
But the injury alleged does not arise from either of these causes. The plaintiff’s mill *12is situated twenty miles below the head of the canal or feeder and the dam erected by defendants; and the injury complained of arises from the diversion of the water of the Delaware and its confluents; thereby diminishing the flow of water to the plaintiff’s mill.
By the section of their charter quoted in Bundle v. Delaware & R. Canal [Case No. 12,139] the defendants have the authority of the state of New Jersey, for diverting the water of the river Delaware for the purpose of canal navigation.
In order then to ascertain the plaintiffs right to recover for any injury alleged to be consequential upon such diversion, we must enquire: 1. To whom do the channel and waters of the river Delaware belong? 2. What are the rights of the plaintiff as riparian owner, in the said river, according to the laws of Pennsylvania? 3. Have they any title to the waters of said river or the use of their mills, by grant from the states of Pennsylvania and New Jersey, or either of them? 4. Had the state of New Jersey a right to divert the waters of the Delaware for the purpose of canal navigation without the con-sént of Pennsylvania? 5. And whether or not, has the plaintiff a right to dispute their power or to raise that question in the present controversy?
The river Delaware is the boundary between the states of Pennsylvania and New Jersey. The tide ebbs and flows to the part of the Trenton Palls where the Trenton bridge crosses the river. Above that point it is a fresh water stream. Previous to the Revolution, the channel and waters of the river below Trenton, so far as the river was navigable in the common law sense of the term, were vested in the king of England. The grant both for New Jersey and for Pennsylvania was bounded by the river Delaware. So far as the tide ebbed and flowed, these proprietors had no title to the bottom of the river below low water mark. But above the bridge and the flow of the tide, the proprietors of each province, held ad filum medium aquae, by the established principles of the common law, according to which their respective grants must be construed. So far as the river was the property of the crown, it devolved on the two states by the Revolution, and the treaty of peace with Great Britain. Immediately after the treaty of peace, the states of Pennsylvania and New Jersey entered into the compact of April, 1783, making the Delaware a common highway for the use of both states.
Without referring to the very numerous acts of assembly of the two states with regard to this river, which have been brought to our notice by the industry and research of the learned counsel, it will be necessary for the purposes of this case, to notice only a few of the more prominent points of its history from that time till the present.
For thirty years after the compact the states appear to have enjoyed their common property without any dispute or collision. When the legislature of either state passed any act affecting it, they requested and obtained the consent and concurrence of the other. The first dispute which arose on the subject was caused by an act of the legislature of New Jersey, passed or£ the 4th of February, 1815. His honour here went into a short narrative of this part of the river history, in very nearly the same words in which it appears in the statement of the reporter, who has adopted it in the preliminary part of the case. His honour then continued: Indeed it would seem as if the river had become of little comparative importance, as a common highway, being used only for descending navigation in the spring of the year, when the banks are full and the subtraction of the water for artificial navigation causes no sensible diminution, or materially affects the navigation of the stream. The practical benefits resulting to both parties from their great publick improvements have convinced them that further negotiations, complaints or remonstrances are useless and unreasonable; and thus by mutual acquiescence and tacit consent the necessity of a more formal compact has been superseded.
After the brief summary presented by the reporter’s statement, and in the remarks which I have just made of the transactions between the states concerning this river, their common boundary and property, let us now inquire whether the plaintiffs have shown any title to the channel of the river and the use of the waters flowing therein which will enable them to support an action against persons authorized by either of the states to divert the waters of the river for the use of their great publick improvements.
In 1771 Mr. Hoops, at that time owning the Pennsylvania shore, and having erected his dam there, in the manner already described, the legislatures of the provinces of New Jersey and Pennsylvania passed concurrent acts declaring the river Delaware a “common highway for the purposes of navigation.” By these acts commissioners were appointed and authorized to remove all obstructions in the channel, whether natural or artificial, with the proviso whose effect has been one of the subjects of argument.
By the common law of England a river is defined as navigable so far only as the tide flows. The soil under a navigable river does not belong to the owners of the adjoining banks. But fresh water streams of what kind soever belong of common right to the owners of the adjacent soil.
The water may be under a servitude to the publick as a highway, but still the channel of the river to its central line belongs to the riparian owner who by reason of his title to the land over which it flows has an usufruct in the water as it passes, provided he does not obstruct the publick use as a highway. And if before it was declared a highway, *13he had erected mills or made other ase of the stream as it flowed over Jbis land, and his mills or other works are injured or impaired by such seizure to a publick use, he is entitled to remuneration as much as if houses or other land had been so taken. And if an individual or a corporation should divert the water flowing on his land to his injury, they could not plead this exercise of the eminent domain granted to them by the state as a justification for taking the private property of the citizen without compensation.
But the law of Pennsylvania by which the title and rights of the plaintiffs must be tested, differs materially from that of England and most of the other states of the Union. As regards her large fresh water rivers she has adopted the principles of the civil law in preference to that of England. In the case of Carson v. Blazer, 2 Bin. 475, the supreme court of that state decided that the large rivers, such as the Susquehanna and Delaware, were never deemed subject to the doctrines of the common law of England applicable to fresh water streams, but that they are to be treated as “navigable” rivers: that the grants of William Penn, the proprietary, never extended beyond the margin of the river, which belonged to the publick, and that the riparian owners have therefore no exclusive rights to the soil or water of such rivers ad filum medium aquae.
In Shrunk v. President, etc., of Schuylkill Nav. Co., 14 Serg. & R. 71, 80, the same court repeat the same doctrine; and Chief Justice Tilghman in delivering the opinion of the court observes: “Care seems to have been taken from the beginning to preserve the waters of these rivers for publick uses both of fishery and navigation; and the wisdom of that policy is now more striking than ever from the great improvements in navigation, and others in contemplation, to effect which it is necessary to obstruct the flow of the water in some places and in others to divert its course. It is true that the state would have had a right to do these things for the publick benefit even if the rivers had been private properties; but then compensation must have been made to the owners, the amount of which might have been so enormous as to have frustrated or at least cheeked these noble undertakings.”
In the case of Monongahela Nav. Co. v. Coons, 6 Watts & S. 101, before referred to, Coons had erected his mill under a license given by an act of the legislature in 1803, riparian owners to erect dams of a particular structure, “provided they did not impede the navigation,” &c. The Monongahela Navigation Company, in pursuance of a charter granted them by the state, had erected a dam in the Monongahela which flowed back the water on the plaintiff’s mill in the Toughio-gany and greatly injured it. And it was adjudged by the court, that the company were not liable for the consequential injury thus inflicted. Chief Justice Gibson speaking of the rights of plaintiff consequent on the license granted by the act of 1803 observes (page 112): “That statute gave riparian owners liberty to erect dams of a particular structure on navigable streams without being indictable for a nuisance, and their exercise of it was consequently to be attended with expense and labour. But was this liberty to be perpetual and forever tie up the power of the state? Or is not the contrary to be inferred from the nature of the license? So far was the legislature from seeming to abate one jot of the state’s control, that it barely agreed not to prefer an indictment for a nuisance except on the report of viewers to the quarter sessions. But the repeal of a penalty is not a charter, and the alleged grant was nothing more than a mitigation of the penal .law. The statute is pro tanto a repealing one, which offers no express compact to any one. It was ruled in Charles River Bridge v. Warren Bridge, 11 Pet. [36 U. S.] 420, that the state is not presumed to have surrendered a publick franchise, in the absence of proof of an unequivocal intention to do so. It would seem that the publick dominion may be parted with, but not without an explicit renunciation of it And this relieves the case from the pressure of that clause of the constitution, which declares that no state shall pass a law impairing the obligation of contracts.”
The case of Susquehanna Canal Co. v. Wright, 9 Watts & S. 9, confirms the preceding views and decides that the state is never presumed to have parted with one of its franchises in the absence of conclusive proof of such an intention. Hence a license accorded by a public law to a riparian owner to erect a dam on the Susquehanna river and conduct the water upon his land for his own private purposes is subject to any future provision which the state may make with regard to the navigation of the river. And if the state authorize a company to construct a canal which impairs the rights of such riparian owner, he is not entitled to recover damages from the company. In that case Wright had erected valuable mills under a license granted to him by the legislature; but the court say (page 13): “He was bound to know that the state had power to revoke its license whenever the paramount interests of the pub-lick should require it. And in this respect a grant by a publick agent of limited powers, and bound not to throw away the interests confided to it, is different from a grant by an individual who is master of the subject To revoke the latter after an expenditure in the prosecution of it would be a fraud. But he who accepts a license from the legislature, knowing that he is dealing with an agent bound by duty not to impair a publick right, does so at his risk; and a voluntary expenditure on the foot of it gives him no claim to compensation.”
Without expressing any approbation of the doctrines established in the two last cited *14eases, -we are nevertheless bound to say, that they settle authoritatively and conclusively the question now under consideration. They apply also with double force to the present case, as no valuable improvements have been made by the plaintiffs on the faith of a legislative license. It has been contended that the proviso in the joint acts of the legislatures of Pennsylvania and New Jersey of -1771, already referred to. operated by way of grant to Adam Hoops, his heirs and assigns, of a right to divert the water of the' river Delaware to his mills. But we can discover nothing in the nature of a grant in the words of this proviso. It amounts to no more than the present toleration of a nuisance previously erected; and at most to a license revocable at pleasure. The doctrine of the cases which we have just quoted, applies to it with full force and conclusive effect.
TThis judgment was affirmed by the supreme court, where it was carried on writ of error. 14 How. (55 U. S.) 80.] NOTE. The reporter is sure that no apology is reauisite for appending to this report, and as connected with one point in the case, the following opinion of the late Richard Stockton. Esquire. of New Jersey; one of the ablest lawyers and statesmen whom our country has produced, and whose lofty honour both in his professional and political career deserves to be held in even higher remembrance than his uncommon abilities. The opinion is derived from the MS. collection of A. 1. Pish, Esq. of the Philadelphia bar. Its value in connexion with the present case, is increased from the fact, that it was one of the opinions upon which the company proceeded upon their enterprise, and that it was not known to the court when its judgment was given. As Mr. Stockton died in March, 1828, it was, of course among the last opinions which he ever gave: On the right of New Jersey to make a canal without first obtaining the consent of Pennsylvania to use the waters of the Delaware. The following positions it is believed are undeniable: 1. The river Delaware was not included in the ancient grants of the King of England and the Duke of York, either to the proprietors of New Jersey, or to William Penn, the proprietor of Pennsylvania, but the property therein and its islands, remained in the crown of England until the Revolution. The rights of private property claimed by individuals, on either side of the river, had no- other legal foundation but occupation or possession. 2. By the war of the Revolution, and the treaty of peace, New Jersey and Pennsylvania acquired a property therein equally: namely each state to the channel or middle of the river on its own side. The agreements between the two states as to jurisdiction, and the partition of the islands, recognize this position, and are bottomed upon it. 3. The property of each state to the middle of the river is as absolute as the subject matter permits. To the shores and the ground covered with water to the channel, it is as perfect and unlimited, as to other parts of its territory. The agreements referred to amount to a partition. Each holds its own in severalty; fully and entirely independent of the other. ' 4. There is nothing since remaining in common but the waters of the river, which are incapable of division. But a right of property in the waters of a river can only exist for appropriate uses, namely for navigation and transit— therefore the rights of navigation and passage remain common to the citizens of both states, over the entire river, and would have so remained without an express stipulation. Then may not either state appropriate the waters washing her own shores to publick improvements? And what -is the just limitation of the right if it exists? These questions depend upon the received law of nations — the only rule of action between independent states, and upon a just application of its principles to the subject before ns. The most approved writers on the law of nations, consider the property in a river belonging to two states, as absolute in each, to its own half part — and content themselves, with laying down the limitations, to such absolute property, which rightfully arise out of the common claim to the waters of the river— and these limitations are made to depend upon that great principle of justice, adopted by all codes of law, that each must so use his own ; right as not to destroy or materially injure, the j right of the other. Vattel (Law Nat. bk. 1, c. 22. § 271) goes over these limitations. He says: “It is not allowable to raise works on the bank of a river to turn its course, and turn it on the opposite bank. In general, no person ought to build on a river or elsewhere, any work which is prejudicial to the right of another. If a river belongs to a nation, and another has the right of navigation, the first cannot form a dam or mill that shall stop its being navigable. Its right in this ease is only that of limited property, and it cannot exert it. but by respecting ' the rights of others. Id. § 272. The right of navigation necessarily supposes that the river shall remain free and navigable, and therefore must exclude every work that will entirely interrupt its navigation.” Id. § 273. I am therefore of opinion that the state of ■ New Jersey is under no legal necessity of asking the permission of the state of Pennsylvania i to use the waters of the Delaware, for publick , improvements, provided, that the navigation and the right of passage are not thereby injured or interrupted.*14Nor can the plaintiff claim by prescription against the publick for more than the act confers on him. which, at best, is but impunity for a nuisance.
We are of opinion also, that it is not competent for the plaintiff to question the authority of New Jersey to take the waters of j the Delaware for her publick improvements without the consent of Pennsylvania. The j channel and waters of this river are vested j in the two states as tenants in common, as ! we have already seen; and no ene can ques- [ tion the authority of either to divert its waters but the other. Pennsylvania was the first to seize on a portion of their joint property, for her separate use, and is estopped by her own act from complaint against New Jersey, who has but followed her example. Besides this, mutual consent may be presumed from mutual acquiescence. At all events the plaintiff, who is shown to have no title to the river or any part of it, and whose toleration or license could at best only protect him from a prosecution, is not in a situation to dispute the rights of either, or claim compensation for a diversion of its waters for the purpose of the publick improvements, of either of its sovereign owners.
It will be unnecessary to inquire whether the compact of 17S3, operated as a revocation of the toleration or license granted by the act of 1771, to the dam of Adam Hoops; as that question can only arise in ease of an indictment of it as a publick nuisance.
Judgment for defendant.
This opinion has not been hastily formed, but is the result of as full an investigation as I could bestow upon the subject. It is believed that Pennsylvania has substantially acted upon this principle. It is said that from the Trenton Palls upwards, the waters are in many places diverted from their natural courses, for the accommodation of mills, without the consent of New Jersey. The Bristol canal is to be supplied by tapping the Lehigh river, near to •¡the place where it empties itself into the Delaware. Now the principle that the owner of a river, has a right to insist that the waters of a tributary stream, shall not be diverted from its natural comse, until it reaches its destination, is as fully established, as that the course or waters of the main river, shall not be altered or diverted: and the injury to New Jersey is precisely the same in this case as if the water was taken from the Delaware itself. 29th January, 1S2S.