The, premises hi question in this case are a mud-flát covered by the waters of the hay of Amboy, in the state of New Jersey. The'cause comes up- on facts found by a special verdict in the Court'below; by Which it appears that the lessors, of the .plaintiff produced upon the trial a regular deduction of title from Charles the Second down to" themselves,, and the' premises iñ question are admitted to be-within the grant. And'the general question in the case is whether this -mud-flat passed under the grant, and in- virtue of the -several conveyances; set out in the special verdict, became vested in the proprietors of New Jersey,as private property. The opinion of-’a majority of. the Cpiirt is against this right, in which opinion, however, I cannof coheur, and shall briefly assign the reasons upon which .my opinion rests.
Some objections have been.made-to the'right of maintaining *419an-action of ejectment, growing out of trie nature óf the'subjectmattef in-controversy. There can be .no grounds for such ah objection: The subject in question is the right'to land, and riot to water. It Is the ordinary case of an ejectment for land covered with w;ater, and the, premises are so set out and described in the declaration;- and the special verdict-finds that the léssors of .the plaintiff,, under the title by them shown, entered into the tenements'with the appurtenances'in the declaration mentioned, and-was thereof possessed until the defendant afterwards -entered upon; and ejected, expelled, and reirioved the plaintiff from such possession. So that the subject-matter in controversy'is found not only to be susceptible of actual possession, but 'to have been so possessed and enjoyed.
A majority of the Court seem to have adopted the'doctrine of Arnold v. Mundy, decided in the Supreme Court pf New Jersey, 1 Halst. 1, in which it' is held,.that riavigable rivers, where the tide ebbs and flows, and the ports, bays, and coasts of the sea, including both the waters and the land under the water, áre common to the people of New Jersey; and that, under the.grant'b'f Charles the Second to the Duke of York, alfthe-rights which they call royalties passed to tjheiduke as governor of the province,.exercising the royal authority, arid not as proprietor of the soil; but that he' held them as trustée fpr the benefit of all settlers in the province, and tha: 'fee proprietors, did riot acquire any such'right to the soil; -that they would grant a several fishery; and that no person who plants a bed of- oysters in a navigable river, has such property in the' oysters as to enable him' to maintain an action of trespass ágainst any one who encroaches upon it. And this rests on the broad proposition, that the title to the land under the water did not, and could not, pass to the Duke of York, as private property. To maintain this -proposition, it must rest on the ground that the' land under the water of a navigable river is not the subject of a private right; for it can be conveyed by words, the grant in the present case is broad enough to pass the title to the land in question.
■ It is worthy of observation that the course of New Jersey in relation to this claim is hardly consistent with her pretensions. In the case of Arnold v. Mundy the chief justice says, upon the Revolution all these rights became vested in the people of New *420Jersey as the sovereign of the country, and are' now in then-hands ; and the legislature may regulate them, &c. But the power which may be exercised by the sovereignty of the state, is nothing more than what is called the jus regium. The right of regulating, improving, and securing the same, for the benefit of every individual citizen. The sovereign power itself, therefore, cannot consistently with the principles of the law of nature and'the constitution of a well-ordered'society, make a direct and absolute grant of the. waters of the state, divesting all the citizens of a common right. It would be a grievance which never could •be long.borne by a free people. °
If this be the received doctrine in New Jersey in relation to the navigable waters of that state, and the oyster fisheries, they remain common to all the citizens of New Jersey, and never can be appropriated to anyprivate or individual use, and all laws having such object in view must be utterly null and,void; and it is difficult to perceive how the law of New Jersey; found by the special verdict, can be sustained. This act,declares- that the shore and land covered with water' may be set apart and laid out by commissioners for the purpose of growing and planting oysters thereon, reserving such parts as might be judged necessary for public accommodation yprovided. that nothing in the said act contained should authorize'the commissioners to present any obstruction, or cause any injury to the navigation'of the said, sound and river, or to any’, fishery or fisheries, therein. • Here the legislature treat these flats, in all respects as land, to be used for planting and growing oysters; and for- the use of which a,re venue is derived to the state, by the payment of a rent reserved. It is not the use of the water for'any public purpose that this law contemplates; bufan exclusive right to. the use of the land under the water, in, contradistinction to the use of the water for purposes of .navigation; and that this law is so to be considered is manifest from the proviso that no obstruction should be made to the fishery.or fisheries therein; and here is a manifest distinction made between á fishery and an oyster-bed. For if it had been ■understood that the fisheries included oysteries, the enacting clause and the proviso would present a glaring inconsistency. The enacting clause authorizes the setting apart the oystery to exclusive private use, when by the proviso, no obstruction is to *421be made to the fisheries. So that if an oystery is a fishery, the owner is deprived of the exclusive use of it. The act seems to be founded upon a distinction clearly held up in many cases to .be found in the books, between an oystery and a fishery in the common use of the term, The one applying to the use of land under the water, which is peculiarly adapted to the growing of oysters, and to be úsed for that purpose in the cultivation of oysters,-as other lands.are used for the purpose to which they are particularly adapted. Whereas a fishery, in common acceptation, ■has. reference to the use o'f the water for floating fish; and this is a very obvious and natural distinction.
That the title to land under a navigable stream of water must be held subject to certain public rights, cannot be denied. But the question still remains, what are such public rights? Navigation, passing and repassing, are certainly among those public rights. And should it be admitted that the right to fish for float.ing fish was included in this public right, it would not decide the present question. The premises in dispute are a mud-flat; and the use to which it has been and is claimed to be applied is the growing and planting of oysters. It is the use of land, and not of water, that is in question. For the purpose of navigation, the water is considered as a public highway, common to all; like a public highway on land. If land over which a public highway passes is conveyed, the soil passés, subject to that use; and the purchaser may maintain an. action for an injury to this soil not connected with the use; arid whenever it ceases to be used as a • public highway, the exclusive right of the owner attaches: so' with respect to the land under water, the public use for passing and repássing, and all the purposes' for which a public way may be • used, are open to the public'; the owner, nevertheless, retaining all. the'rights and benefits of the soil, that may not impede or interfere with the use as a public highway. Should a coal-mine, for instance, be discovered under such highway, it would belong to the' owner of the soil, and might be used for his benefit;. preserving, uriimpaired, the public highway. So with respect to an oyster-bed, which is local, and is attached, to the soil. It is not the water that is over the beds that is claimed; that is common, and .may be used by. the .public; but the use of the soil by the owner.which is consistent with the use of the water by the public, *422is reserved to the owner. Suppose this mud-flat should, by the wash from the ¿hore, or the receding of the water, or in any other manner be filled up arid become solid ground; which is by no means an extravagant supposition; would not the proprietors be considered the owners of this land, and have the exclusive right to the usis and enjoyment of it, if they had in no way parted with such right.’ This cannot be denied, if the soil passed to and. became vested in the proprietors under the grant t'o them. It. surely would, not be claimed by the state, it being no longer susceptible of public use.
The case of Brown v. Kennedy, 5 Har. & Johns. 195, is fully to this point. The question there related to the right to the soil in the bed of a navigable river, which had been diverted to a- canal; and it was held, that the property in the soil covered by' the water was vested in the lord proprietary, by the charter .of Maryland. That by the common law, the right was in the king, and he might- dispose of it sub modo. That the property in the soil may be granted, subject to the jus pqblicum. That by the terms of the'charter to Lord- Baltimore, they clearly passed the property in the soil covered by any waters within the limits'of the charter. And if the bed of the river had not been conveyed away, it would have remained -in the proprietary; and if an island had sprung up, it would have been his; or if the bed of the river had been left bare, it would be his, as the jus publicum would be destroyed.
The rules'and principles laid down by Lord Hale, as we find them in Hargrave’s Law Tracts; are admitted as containing the correct common law doctrine as to the rights and power of the king over the arms of the sea and navigable streams of water. We there find it laid down, that the King of England hath a double right in the sea, viz.,' a right of jurisdiction, which he ordinarily exercises by his admiral, and a right of propriety or ownership. Hargrave, 10. The king’s right' of propriety, or ownership in the sea and soil thereof, is evinced principally in these things that follow.
The right of fishing' in the sea, and the creeks, and arms thereof, is originally lodged in the crown; as the right of depasturing is originally "lodged in -the owner of the coast whereof he is lord, or as the right of fishing belongs to him that is the-owner of a private or inland river. But though the king is the owner of this *423great coast, and as a consequent of his proprietaryhath the. primary right of fishing in the sea, and the créeks, and arms thereof; yet the common people of England have regularly a liberty of fishing in the sea, or creeks, or arms thereof as a public common of piscary, and may not without injury to their right be restrained of it, unless in such places, creeks, or navigable rivers, where either the" king or some' particular subject hath gained a propriety exclusive of that common liberty. (11) In many ports and arms of the sea, there is an exclusion of public fishing by prescription or custom,(12) although the king hath primá facie this right in the arms and creeks of the sea, communi jure, and in common presumption ; yet a subject may have such a fight, in two ways.
1. By the king’s charter or grant: and this is without question. The Icing may grant fishing within some known bounds, though within the main sea,' and may grant the water and soil of a navigable river; (17) and such a grant (when.apt words are used) will pass the soil itself; and if there shall be a recess of the sea, leaving a quantity of land, it will belong to the grantee. The second mode is by custom or prescription. There may be the right of fishing without having the soil, or by reason of owning the soil, or a local fishery that arises from ownership of the soil. (18) That, de communi jure, the right of the arms of the sea belong to the king; yet a subject may have a.separate right of fishing, exclusive of the king and of the common right of the subject. (20) But this interest or right of the subject must be so used as not to cccasion a common annoyance to the passage of ships or boats; for that is prohibited by the common law, as well as by several statutes.
For the jus privatum that is acquired to the subject either by patent or prescription, must not prejudice the jus publicum, wherewith public rivers or arms of the sea are affected for public use, (22)- — as the soil of an highway in which, though in point of property, may be a private man’s freehold, yet it is charged with a public interest of the people, which may not be prejudiced or damnified, (36).
TI.ese rules, as laid down by Lord Hale, have always been-considered as settling the law upon the subjects to which they apply, and have been understood by all elementary writers as governing rules, and have been recognised by-Courts of justice *424as controlling doctrines. They establish that by the common law the king is the owner of. all navigable rivers,- bays, and shores. That he owns them in full .dominion arid propriety, and has full power and authority to convey the'same; that he may grant a several fishery in a navigable stream,-and the common law has annexed only two limitations upon this- power. . That these waters shall remain highways for passage and navigation, and that whilst they remain ungranted, there is a common right of. fishery in them;, but, subject to these limitations, the king has as full power to convey as an individual has-to convey the land of which he is the owner.
I se'e nothing to countenance the distinctions set up, that the king holds these subject as trustee, any more than he does the dry land; or that he cannot convey them, discharged of the right of common fishery. There is no reason for such distinctiori with respect to land under water. The true rule on the subject is, thatprima facie a fishery in a havigable river is common, and-hé who sets up an exclusive right, must show title, either by grant or prescription. This is the doctrine of the King’s Bench, in’ England, in the case in 4 Burr. 2163. It was an action of trespass for breaking and entering the plaintiff’s close, called the river.Severn; .and the defence set up was, that it was a navigable river, andan arm of the sea, wherein every subject has a right to fish; and that an exclusive right cannot be maintained by a subject in a river that is an arm <5f the sea, but that the general right of fishing is common-to all. Bui this doctrine was not "recognised by the Court. Lord Mansfield said, the rule of law is uniform!. In rivers not navigable the proprietors of the land have the right of fishing on their respective- sides,.and it generally extends ad filum'medium aquae; But in navigable rivers, the proprietors of the land on each side have, it not. The fishery is common. ■ It is priiM facie in the king, and is public. If any one claims it exclusively, he must show a right.- If he can show- a right by prescription, he may then exercise an exclusive right; though the presumption is against him, unless he can prove such a prescriptive right. Here it is Claimed and found.. It is therefore consistent with all the cases, that he may have an exclusive .privilege of fishing, although it is an-arm of the sea, such a right shall not be presumed; but the contrary, prima facie; but it is capable of. being proved,, and must *425have been so in the- present case. And Yates, Justice,- says, he was concerned in such a case but, the right was not proved, and so found common; but such-a right may be. proved. It may be appropriated by prescription; and he refers to the royal salmon fishery .in the river Banne, in Sir John Davies’s Reports,' and says it is agreeable to this, and that it is a very good case. That it appears, by it that the crown may grant a several fishery in a navigable river where the sea flows and reflows, or in-the arm of the sea. And He refers to the case I Mod. 105, where, he observes, Lord Hale says truly if any- one will appropriate á privilege to himself, the proof Iietb. on his side. Now, if it may.be granted, it may be prescribed for: for a prescriptiqnimplips a grant.
In the argument of thté case, the Gounsel on the part' of the defendant referred to the case of Warren v. Mathews, as reported in 6 Mod. 73, wheré it is said, every subject of common • right may fish with lawful-nets, &c., in a navigable river, as well as in the-sea; and the king’s- grant cannot bar them thereof; and this case has been much .relied on in the .argument of the case now before the Court. ' But this report of the case in 6 Mod. 73 Is clearly a mistake. It is the only cáse to be found in which the broad proposition nere’stated is recognised, that the king’s grant cannot bar the subject of .the common right-of fishing. And in the report of the same case, 1 Salk. 357, the case as stated is, that one claimed solam piscariam, in the fiver Ex, by a grant from the crown. And, Nott, Chief Justice, said, the subject has a right to. fish in all navigable rivers as he has to fish in the sea; and a quo warranto ought to -be granted to try the title of this grantee, and the validity of his-grant. Lord Nott, here, no doubt,, meant to speak of the-. prima facie right of the subject.' For if he intended to say that .no such exclusive right could be given by grant from the king, it would be absurd to issue a quo warranto to try the title and validity of the grant, if by no' possibility a valid grant -could be made. At all events, it is very certain that the King’s Bench, in the case of Carter v. Murcot, did not recognise the doctrine of Warren and Mathews, as reported in 6 Mod. 73. And under these circumstances, it is entitled to no weight in the-decision of the case now before the Court.
It is unnecessary to refer to the numerous, cases in the English books on this subject; the doctrine as laid- down in the case of *426Carter v. Murcot is universally recognised as the settled law on the subject, and is fully adopted and sanctioned by the Courts of this country. Numerous cases of this description have come before the Courts in the state of New York, and the principles and rules as laid down in the case of Carter v. Murcot fully recognised and adopted. In the case of James and Gould, 6 Cowen, 376, •the Court, in referring to that case, place the decision upon it, and say, “This is the acknowledged law of Great Britain and of this state; and cases are referred to showing such to be the settled law.”
In' the case, of Johnson v. M'Intosh, 8 Wheat. 595, this Court say, that' according to the theory of the British constitution all-vacant lands are vested in the crown as representing the nation, and the exclusive power to grant them is admitted to reside in the crown as a branch of the royal prerogative. And this principle is as' fully recognised in America as in Great Britain. All the lands we hold were originally granted by the crown. Our whole country has been granted; and the grants purport to conve]?- the soil as well as the right of dominion to the grantee. Here the absolute ownership is recognised as being in the crown, and to be. granted by the crown, as the source of all title; and this extends as well to land covered by water as to the dry land; otherwise, no title could be acquired to. land under water. There is in this case no ihtimation that any of the lands are vested in the crown as trustee, but as absolute owner. If lands under water can be granted and are actually granted, the grantees must of, course acquire all the right to the use and enjoyment of such lands of which they are susceptible as private property, as much so as the dry land; and there can be no grounds for any implied reservation of ungranted rights in the one case more than in the other; and the grant of the soil carries with it, of course, all the uses to which it may be applied, among which is an exclusive or several fishery. All grants of land, whether dry land or covered with water, are for great public purposes subject to the control of the sovereign power of the country. - So the grant of the soil under water, which carries with it a several- fishery, is subject to the use of the water for the public purposes of navigation, and passing and repassing; but it is nowhere laid down as the law of the land, that a several fishery is a part of the jus publicum, and open to the use of the public. So long as the *427fishery remains ungranted, it is common, and may be used by the public; but when granted' to individuals, it becomes private property as much as. any other subject whatever; and I think the law is too well settled, that a fishery may be the subject of a private grant, to be at this day drawn in question.
If, then, according to the principles of the common law,, the king had the power to grant the soil under the waters of a navigable stream, where the tide ebbs and flows; and if such grant of soil carries with it the right of a several fishery,, to the exclusion of .a public use, the remaining inquiries are whether the grant of Charles the Second to the Duke of York, in the year 1664, did convey the premises in question ; and if so, then, whether this right was surrendered by the proprietors of New Jersey to Queen Anne, in the year 1702.
This charter to the Duke of York is one containing not only a grant of the soil, but of the powers of government. This Court, in the case of Johnson v. M'Intosh, in noticing the .various charters from the crown, observe, that they purport to convey the soil and right of dominion to the grantees. In .those governments which were denominated royal, where the right to the soil was not vested in individuals, but remained in the crown, or was vested in the' colonial government, the king claimed and exercised the right of granting the lands. Some of these charters purport to convey the soil al5ne, and in those cases in which the powers of .government as well as the soil are conveyed to individuals, the crown has always acknowledged itself to- be bound by the grant; and in some instances, even after the powers of government were revested in the crown, the title of the proprietors of the soil was respected. The Carolinas were originally proprietary governments; but in 1721 a revolution was effected by the people who shook off their obedience to the proprietors, and declared their dependence immediately on the crown, and the king purchased the title of those proprietors who were disposed to sell. Lord Carteret, however:, who was one of the proprietors, surrendered Ms interest in the government, but retained his title to the soil; and thdt- title' was. respected till the Revolution, when it was forfeited-by the laws of war.
This shows the light in which these charters, granting the soil, were considered by this Court. That they conveyed an absolute *428interest in the soil, and passed every thiqg susceptible of private and individual ownership,'of which a fishery is certainly one, according to the settled law, by the authorities I have referred-to. Subject always, as before mentioned, to the jus publicum, or rights of navigation and trade; but of which the right of a common fishery forms no part, after the soil has been conveyed as private property.
,It is unnecessary to notice particularly the-various charters and mesne conveyances set out in the special verdict.' It was admitted on the argument, that the premises in question fall within these conveyances; and vested in the proprietors of New Jersey all the right and title both of soil and the powers of government, which passed to the Duke of York under the charter of Charles the Second. The terms employed in the description of the rights con■veyed, are of the most comprehensive character, embracing the land, soil,.and waters. After a general description and designation of the territory embraced within the charter, and - comprehending the premises in question, it adds, " Together with all th’e lands, islands, soils, rivers, harbours, mikes, minerals, quarries, woods, marshes, waters, lakes, fishings, hawkings* huntings, and fowlings, and all other- royalties, profits, commodities, and hereditaments, to the said several islands, lands', and premises, belonging and appertaining with all and every of their appurtenances, and all our estate, right, title, interest, benefit-, advantage, claim, and demand of, in, or to the said lands, and premises, or. any part or parcel thereof, and the reversion and reversions; remainder and remainders thereof, to have and to hold all and singular, the premises hereby granted, or herein' mentioned, unto ouf brother ' James, Duke of York, his heirs and assigns forever; to be holden of us our heir and successor in free and. common socca ge.” If these terms are not broad enough to include every thing susceptible of being conveyed, it is difficult to conceive what others could be employed- for that purpose. The special verdict: after setting out the mesne conveyances, by which the.title is deduced down to- the proprietors of New Jersey, sets out a confirmation of the title in the proprietors by Charles the. Second, as follows, "And the jurors on their oath aforesaid further say, that the said Charles the Second, afterwards, to wit, oil the' twenty-third day of November, in the year of our Lord-one thousand six hundred *429and eighty-three, by a certain instrument in writing duly executed, bearing date on the same day and year last aforesaid; and reciting the said last-mentioned indenture from the said Duke of York, to the said twenty-four proprietors, did recognise their right- to the soil and government'of the said province of East New Jersey, whereof the tenements aforesaid with the, appurtenances in the •declaration aforesaid are parcel, and did strictly charge and command- the planters and inhabitants, and all other persons concerned in the same, to submit and yield all due obedience to-the laws and government of the said twqnty-four proprietors, their heirs and assigns, as absolute proprietors-and governors thereof, who in the words of the said instrument in writing, had the sole power and right, derived under the said Duke of York, from him, the said Charles the Second, to settle and dispose of the said province of East New Jersey, upon such terms and conditions, as to the tw;enty-four proprietors, their heirs and assigns should deem meet.” Here is the most full recognition and confirmation of the right and title of the proprietors, to the soil, with the absolute power to dispose of the. same in such manner as they should think proper. The absolute ownership could not be expressed in a more full and unqualified a manner. In the case of Fairfax v. Hunter’s Lessee, 7 Cranch, 618, the question was as to the legal effect and operation of certain descriptive words in a charter of Charles the Second; and.Mr. Justice Story in giving the opinion of the Court, said, “The first question is, whether Lord Fairfax was proprietor of and seised of the soil, of the waste and unappropriated lands ip the northern neck by virtue of the royal grants of Charles the Second,-and James the Second; or whether he had mere seignoral rights therein as lord paramount, disconnected with all interest in the land, except of sale and alienation. The royal charter expressly conveys all that entire tract, territory, and'parcel of land, situate, &c., together with all the rivers, islands, woods, timber, &c., mines, quarries of stone, and coal, &c., to'the grantees and their heirs and assigns, to their only use and behoof, and to no other use, intent, or purpose whatsoever.” It is difficult,” say the Court, “ to conceive terms more explicit than these to vest a title and. interest in the soil itself. The land is given, and the exclusive use thereof; and if thé union of the title, and the exclusive use do not constitute the complete and" absolute *430dominion in ' the property, it will hot be easy to fix any which shall constitute such dominion.” The terms here used are certainly not more broad and comprehensive than those used in the charter under consideration; and if they will pass the right to the soil in tfie' one case, they certainly must in the other. The land in the one case being covered with water, and in the other not, can make no difference as to the passing of the title, if land under water can be conveyed at all; and whatever the public right to the use of the water may be, it can give no right to the use of the land under the water, which has by the grant become private property.' And if, as I think the authorities clearly'show, a grant of the soil carries with it’ the right to every private use to which it can be applied, including the- cultivation of oysters, there can be no ground upon which this can be claimed as a common right. A several fishery and a common fishery are utterly incompatible with each other. The former is founded upon and annexed to the right of soil. And when that right of soil is acquired by an individual, the several fishery begins, and the common fishery ends.
Did- the proprietors, then, by the surrender to Queen Anne, in the year 1702, relinquish any rights of private property in the soil derived under the charter of Charles the Second? I think it is very clear that they surrendered nothing but the mere powers of government granted by the charter, retaining unaffected in. any manner whatever the right of private property.
The" special verdict states this surrender as follows: “That on the fifteenth day of April, in the year one thousand seven hundred and two, the said twenty-four proprietors and the other persons, in whom, by sundry mesne conveyances and assurances in the law, the whole estate* right, title, and interest' in the said province of East New Jersey, were vested at the said last-mentioned date, as proprietors thereof, by an instrument in writing under their hands and seals, bearing date the same day and year last aforesaid, did for themselves and their heirs surrender and yield up unto Anne, Queen of England, &c., and to her heirs and successors, all the powers and’ authorities in the said letters patent granted, to correct, punish, pardon, govern, and rule all or any of her said majesty’s subjects or others who then were, as inhabitants, or thereafter might adventure into, or inhabit within the *431said province of East New Jersey. And also to noininate, make, constitute, ordain, and confirm any laws, orders, ordinances, directions, and instruments for those purposes, or any of them; and to nominate, constitute or appoint, revoke, discharge, change or alter any governor or governors^ officers or ministers, which were or should be appointed within the said province; and to make, ordain, and establish any orders, laws, directions, instruments, forms, or ceremonies of government and magistracy for or concerning the same, or on the. sea., in going to or coming from the same, or to put in execution or abrogate, revoke or change such’ as were already made for or concerning such government, ..or any of them. And also the powers and authorities by the said letters patent granted,.to use and exercise martial law in the said province- of East New Jersey. And to admit any persons to trade or traffic there. And of encountering, repelling, and resisting by force of arms, any person or persons attempting to inhabit there without the license of them, the said proprietors, their heirs and assigns. And all other the powers, authorities, and privileges of and concerning the government of the province last aforesaid, or the inhabitants thereof, which were granted, or mentioned to be granted by the said several above-recited letters patent, or either of them. And that the said Queen Anne afterwards, to wit, on the seventeenth day of the same month of April, in the year last aforesaid, did accept of the said surrender of the said powers of government, so made by the said proprietors, in and over the ■premises.last aforesaid.”
I do not perceive, in this surrender, a single term or expression that can in the remotest degree have any reference to the private property conveyed by the grant, or to any matter except that which related to the powers of government. All the enumerated subjects manifestly have relation only to such powers. And after this specification of particulars comes, the general clause, “and all other the powers, authorities, and privileges of and concerning the government;” necessarily implying that the specified subjects related to the powers of government; and the acceptance by the queen manifestly limits the surrender to such powers; she accepts the said surrender- of the. said powers of government so made by the proprietors in and over the premises.
If there was any thing in the language here used, which could. *432in the least degree render doubtful the object and purpose of this surrender, the memorials of the proprietors, and the correspondence which took place on the subject referred to on the argument, as contained in the collection of Leaming and Spicer,, must remove all doubt, and show that, the surrender was confined exclusively to the powers of government, and intended to operate, not .only as a surrender of such powers, but as a confirmation of all right and title to the soil and private-property of the proprietors. And if so, the. proprietors’ right must depend upon the power of the king to grant the right claimed in the premises, and the construction of the charter, as to what it does embrace. And, I. have endeavoured to show, that by the settled and uncontradicted principles of the common law, the king had the j)ower to grant the land under the water-of' a navigable river; and, that such grant carries with it to the grantee all rights of private property of which the land is susceptible, subject to the jus publicum. That the grant of the soil necessarily carries with it a several and exclusive fishery, which is utterly incompatible with the fights of a- common fishery, and which of course can form no part of the jus publicum; and that the grant in question of Charles the Second to the Duke of York, conveyed all private right in the soil which could be conveyed by the king; all which rights, by sundry mesne conveyances, became vested in the proprietors of East New Jérsey, and from them to the lessor of the plaintiff. And I can discover nothing in the authorities giving countenance to the idea that the king held the land covered by the waters of a navigable river as trustee, or.by a tenure different from that-by which he held the dry land. And I must again repeat, if the king held such lands as trustee for the common benefit of all his subjects, and inalienable as private property, I am unable to discover on what ground the state of New Jersey can hold the land discharged of such trust, and can assume to dispose of it-to the private and exclusive use of individuals. If it was. a trust estate in the king for the béneñt of his subjects, and upon the Revolution, the government.- of New Jersey became the trustee in the place of the king, and the trust devolved upon sucn government, and the land became as inalienable in the government of New Jersey as in the hands of the king, and the state must be bound to hold all such lands subject to the trust, which, as contended, embraces *433a common right of fishery in the waters, and. the dredging for oysters in the land covered by the waters; and if this be so, there certainly can be no power in the state, without a breach of trust, to deprive the citizens of New Jersey of such common right, and convert these oyster grounds to the private, and' exclusive use of' individuals.
íhere is nothing in the case, in my judgment, showing a usage in the state by which the proprietors-have either directly of' by implication relinquished .or- abandoned any right of property which they derived under the charter of Charles the Second. All the authority exercised by the state in granting ferries, bridges, turnpikes^ and rail-roads, &c., are the exercise of powefs vested in the government over private property for public uses, and formed a part of the powers of government surrendered by the proprietors to Queen Anne; and it is only since the decision in Arnold v. Mundy,, that the private right of the proprietors to the lands under the waters in New Jersey has been denied, and ássümed by the state to grant the same to individuals;, and even in such cases it has been- done- cautiously, and apparently with hesitation as to the fight of the state. In the two- cases referred to on the argument, of a'grant to N. Burden, on the 8th of .November, 1836, and to Aaron Ogden, on the ,25th of January, 18,37, of land under the water, the grant is a-mere release or quit claim pf the state; but the proprietors'have been in- the. habit of making grants for land under the. water from the time of the surrender, tp Queen Anfie down, to the year 1820, and-numerous instance's of such grants were referred to oh the argument.
With respect, however, to the right of fishery, there; is in my judgment a.marked-distinction,botbrinfeason and authority, between the right in relation- ,to floating-fish, and the right of dredging for oysters. The- latter is entirely local arid connected with the soil.' There aré natural'beds of oysters, but in other places there is-a peculiar soil, adapted to the growing of oysterfe. They are planted and cultivatedby the hand of man fike other productions of the earth; and the books in many cases clearly holds up such a distinction,and speak of the oyster fishery as distinct from that of floating fish, 5 Burr. 2814; and in the case of Rogers and others v. Allen, Camp. Rep. 309, this distinction is expressly taken. It was an action of trespass for breaking and entering *434the several oyster fishery of the plaintiffs in Burnham river, and fishing and dredging for oysters. The defence set up was that the locus in quo was a navigable river, in. which all the king’s subjects had a right to fish and dredge for oysters; and evidencé was introduced showing that all who chose had been accustomed to fish in Burnham river for all sorts of floating fish without interruption; and it was contended that a fishery was entire, and that as it had been proved that it was lawful for all the king’s subjects to catch floating fish, so they might lawfully dredge for oysters.’ But Heath, Justice, ruled otherwise, and said a fishery was divisible;, a part may be abandoned, and another part of more value may be preserved. The public may be entitled to catch floating fish in the river Burnham, but it by no means follows that they are justified in dredging for oysters, which may still remain private property: and although a new trial was granted upon another point in the case, the doctrine as above stated was not at all impugned by the Court-of King’s Bench.
Upon the whole, I am of opinion that the judgment of the Circuit Court ought to be affirmed.