Prior to 1833 there had been, for many years, a dispute between the States of New York and New Jersey as to the boundary line between the two States. The State of New York had always claimed the boundary line to be at low water mark on the westerly side of the water, between the two States, and New Jersey had disputed this boundary, claiming that the center line of those waters was the general boundary. The claim of the State of New York was not so emphatically asserted, prior to 1830, as in that year. In the Montgomery charter of the city of New York, granted in 1730, the city was bounded, beginning at the mouth of Spuyten Duyvil creek, on the Westchester side thereof, at low water mark, and running on the Westchester side, at low water mark, to the East river, and so on around the easterly side of the city to the southerly end thereof; and "from thence across the North river, so as to include Nutter's Island, Bedloe's Island, Bucking Island and Oyster Island, to low water mark on the west side of the North river, or so far as the limits of the province extends, and so to run up along the west side of the river, at low water mark,or along the limits of the province, until it comes opposite to the creek aforesaid, and thence to the place of beginning." In the act, passed April 3d 1801, entitled "an act to divide this State into counties," the westerly boundary of the county of New York is described in the same language as contained in the Montgomery charter; and the county of Westchester is bounded "westerly by a line running from thence down the middle of Hudson river until it comes opposite to the bounds of the State of New Jersey on said river; thence west to the same (west from themiddle of the river); thence southerly along the east boundary line between this State and the State of New Jersey, to the line of the county of New York," c. In the act passed March 26th, 1813, the boundaries of the counties of New York and Westchester are described in substantially the same way.
It will thus be seen, that while the State of New York apparently asserted her claim to a boundary line at low water *Page 308 mark on the west side of the Hudson river, yet she did it in such terms as to show that the boundary was in some dispute and uncertainty. Chancellor KENT, in his work on the charter of the city of New York, page 122, says: "Every revision of our statute laws contained this same boundary line, as the limit and jurisdiction of the city, and with the same reservation as to the west bounds on the Hudson river, and leaving the west bounds of the State along the city line in uncertainty." But in 1830, at the adoption of the Revised Statutes (1 R.S., 61), the claim of New York was unequivocally asserted to low water mark on the New Jersey side of the waters dividing the two States. The reasons for making this claim at that time are fully stated by the revisors in their first note. This assertion of title on the part of the State of New York, thus emphatically made, attracted the attention and aroused the opposition of New Jersey, and led to the appointment of the commissioners by the two States in 1833, who made the agreement as to the boundary and jurisdiction of the two States, the construction of which is involved in this action. At the time this agreement was made, New York was a large and flourishing commercial city, with the finest port, and destined to be one of the largest commercial emporiums in the world, while New Jersey had no commerce, no commercial port, and no brilliant commercial prospects. The commissioners met to settle a boundary that had been in dispute for 150 years, and the agreement which they concluded, giving neither party all it claimed, was the result of a compromise. In adjusting this compromise, in their efforts on both sides to secure rights which they deemed important, the learned and able commissioners, either from the force of circumstances or because we cannot see all the facts which they contemplated, used language which leaves their intention in some respects somewhat in doubt. In construing this agreement, we must arrive at their intention by considering the circumstances by which they were surrounded, the objects which they had in view, so far as we can discern them, and the meaning of the language which they have used. *Page 309
Article 1, reads as follows: "The boundary line between the two States of New York and New Jersey, from a point in the middle of Hudson river, opposite the point on the west shore thereof, in the forty-first degree of north latitude, as heretofore ascertained and marked, to the main sea, shall be the middle of the said river, of the Bay of New York, of the water between Staten Island and New Jersey, and of Raritan bay, to the main sea, except as hereinafter otherwise particularly mentioned."
It is important to inquire what comes within this exception, and thus controls the boundary as otherwise established in the first article. On the part of the defendant it is claimed that this exception has reference only to, and that the inquiry is fully answered by the second article. It seems clear to me that this is not the true construction. If that was all that was intended to be excepted, it could and most likely would have been inserted in the first article, thus making that article complete as to the boundary between the two States. It could have been added, instead of the exception now contained, as follows: "Except the State of New York shall retain its present jurisdiction of and over Bedloe's and Ellis Islands, and shall also retain exclusive jurisdiction of and over the other islands lying in the waters above mentioned, and now under the jurisdiction of that State." If the exception was intended to apply only to these islands, it would have been more orderly and precise to have inserted it thus in the first article, than to have used a second article, without any apparent reason, to contain the exception, necessarily leaving it in great doubt, to say the least, whether any more exceptions were meant or not. The plain, obvious and natural meaning of the words "except as hereinafter otherwise particularly mentioned," requires us to hold that they have reference to anything and everything thereafter particularly mentioned in the agreement, in any way modifying the boundary as established in that article. The third article of the agreement then, also modifies the boundary line as mentioned in the first article, by providing that the State of New *Page 310 York "shall have and enjoy exclusive jurisdiction of, and over all the waters of the Bay of New York; and of and over all the waters of Hudson river, lying west of Manhattan Island, and to the south of the mouth of Spuyten Duyvil creek; and of and over the lands covered by the said waters to the low water mark on the westerly or New Jersey side thereof." If there was no more than this, and the agreement stopped here, there could be no question, it seems to me, that the boundary line between the two States would be at low water mark on the New Jersey side of the bay, and of the Hudson river south of the mouth of Spuyten Duyvil creek; and the boundary as contained in the first article, would be thus far modified, leaving it in full force as to all other parts of it south of the mouth of Spuyten Duyvil creek, and as to all the line north of that, for several miles to the westerly end thereof in the forty-first degree of north latitude. The jurisdiction is "exclusive," thus forbidding the exercise of any jurisdiction within the prescribed limits by the State of New Jersey. It is claimed on the part of the defendant, that the word "jurisdiction" is here used in a limited sense. I cannot doubt that it was used in the sense of sovereign, governmental jurisdiction. When used in reference to the jurisdiction of a State or government, it means "the power of governing or legislating;" "the power or right of exercising authority." When used in reference to courts, it means "the power of executing the laws and distributing justice." (See Webster's Dic.) It is used in the former sense in section 1 of the fourteenth amendment of the national constitution: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof,"c. It was used in the same sense in the following acts of the legislature of this State passed at an early day: "An act to cede jurisdiction of certain lands on Montauk Point to the United States of America for the purpose therein mentioned," passed in 1792. "An act to prevent intrusion on lands within the jurisdiction of this State under pretense of title from the State of Connecticut," passed in 1796: "An act to cede the *Page 311 jurisdiction of certain lands in this State to the United States," passed in 1798: "An act to preserve and support the jurisdiction of this State," also passed in 1798: "An act to cede to the United States the jurisdiction of certain islands situate in and about the harbor of New York," passed in 1800, embracing Bedloe's Island, Oyster Island and Governor's Island. By an act passed April 1, 1800, certain lands on Staten Island were granted to the United States; but it was provided "that such grant shall expressly reserve the jurisdiction of this State." These illustrations of the use of this word are taken from a single volume of statutes now before me, and are sufficient for my purpose. This word is used in the same sense every time it is used in this agreement. New York had always exercised exclusive, sovereign, governmental jurisdiction over the islands in the waters between the two States, and this jurisdiction is notconferred upon her, but is retained by her in the second article. It is used in the same sense in the act of congress passed June 25, 1834, consenting to the agreement, wherein it is provided that nothing in that act shall impair the jurisdiction of the United States over the islands belonging to it, and over the waters forming the subject of the agreement.
It is quite clear, then, that if there was nothing more of the third article than I have quoted, it could not be seriously questioned that the sovereign, political and governmental jurisdiction of the State of New York extended to low water mark on the New Jersey shore westerly of the waters mentioned. And that the boundary named in the first article was so far modified. But it is provided that this exclusive jurisdiction shall be subject to certain rights of property and jurisdiction of the State of New Jersey. It is first provided that "the State of New Jersey shall have the exclusive right of property in and to the land under water lying west of the middle of the Bay of New York, and west of the middle of that part of the Hudson river which lies between Manhattan Island and New Jersey." Why was this provision necessary, if the boundary line remained in the middle of the bay and *Page 312 river and was not moved west of the middle to low water mark by the exclusive jurisdiction previously conferred in the same article? By this provision, simply, property is given to New Jersey, and the governmental jurisdiction and authority of New York is not interfered with. New Jersey owns the fee of this land in no other sense than if the land was situated in the center of this State. She owns it as a proprietor, in the same sense in which the United States owns the lands on Staten Island, by virtue of the act above quoted, passed April 1, 1800, the governmental jurisdiction remaining in the State of New York. This provision, then, does not affect the boundary between the two States, but simply gives New Jersey certain rights of property within the State of New York.
It is next provided that "the State of New Jersey shall have the exclusive jurisdiction of and over the wharves, docks and improvements made and to be made on the shore of the said State, and of and over all vessels aground on said shore, or fastened to any such wharf or dock; except that the said vessels shall be subject to the quarantine or health laws and laws in relation to passengers, of the State of New York, which now exist or which may hereafter be passed." This was a jurisdiction to be carved out of the exclusive jurisdiction previously given to the State of New York; and except as modified by this, the exclusive jurisdiction of the State of New York was to remain. The important question in this case is to determine how far the exclusive jurisdiction of the State of New York is modified by this clause in the agreement. In discussing this question, I shall assume that the word "shore," as here used, does not mean the space between high and low water mark, but that it means, as claimed on the part of the defendant, the space between low water mark and a line far enough out into the water for all the purposes of docks, piers and wharves. At the date of this agreement, certain docks and wharves had already been made on the New Jersey side, and it was foreseen that others might thereafter be needed and be made. New Jersey had but little commerce and no important city or seaport upon these waters. *Page 313 New York city then controlled by far the largest share of the commerce of this country, and these waters were mainly important as her seaport. It was important that this port should be subject to but one State jurisdiction, and that its jurisdiction should be of the State possessing the city of New York, and having by far the largest interest in regulating, protecting and governing the port. It was clearly the intention of the commissioners, as gathered from the whole agreement, to place that port under the exclusive jurisdiction of the State of New York, so that she could control and regulate it in the interest of her great commerce and her great commercial city. While it was agreed that New Jersey might regulate the fisheries west of the middle of the said waters, yet she was bound to do it in such way as not to hinder or obstruct navigation. So jealous was New York as to encroachments upon her harbors that she would not even intrust the State of New Jersey with this right to regulate fisheries, except with a provision that navigation should not be obstructed or hindered. To uphold the claim put forth by the defendant, while New York was thus jealous of her port, it must be held that she yielded to New Jersey the unlimited and absolute right to make wharves, docks and other improvements below low water mark on her shore, without any proviso or limitation. As the wharves and other improvements would necessarily be connected with the main land, it was appropriate that New Jersey should have absolute jurisdiction over them when made, and not at all important that New York should have for the interest of her commerce, for the government of her great city, or for any of the purposes of her great port. But when it is proposed to encroach upon the waters with new wharves and improvements, then it was important for New York to intervene and be consulted. Hence the jurisdiction of New Jersey was confined to the docks, wharves and improvements then made, and such as thereafter might be made; and no right or authority was conferred upon her to make any, or authorize any to be made. Whenever it is attempted to make any *Page 314 new ones, the jurisdiction of New York is involved, and before they can be legally made, her consent must be obtained. The result is that no wharves can be legally and rightfully made on the New Jersey side, below low water mark, without the authority of New Jersey, as the proprietor of the land, and without the consent of New York, which has jurisdiction over both the land and water. This result is reached by giving the natural and plain meaning to the language used, and keeping in view the primary object sought in this part of the agreement, to place the port of New York under the control of New York. The boundary line named in the first article is modified in the same way by the fifth article, as to the waters therein mentioned, and for substantially the same reason. Those waters did not form a portion of the port of New York, and properly belonged to the port of Perth Amboy, which we are told by the learned counsel for the defendant, the people of New Jersey hoped might some day become a great commercial metropolis. Hence these waters were placed under the exclusive jurisdiction of New Jersey, that she might have the exclusive control of that port.
The construction which I have thus given to this agreement gives full force and effect to all parts of it and harmonizes all its provisions. But if we should so far do violence to language as to hold that "the exclusive jurisdiction" given to the State of New York was, after all, as claimed on the part of the defendant, merely a "police" jurisdiction, what would be meant by that? Certainly not merely the right to serve process and make arrests, because that is provided for in the seventh article.Police means "the government of a city or town," "the administration of the law and regulations of a city," "the internal regulations and government of a kingdom or State." (See Webster's Dic., Jacob's Law Dic., Tomlin's Law Dic.) And a police jurisdiction would mean the right to regulate and govern a city or State. Hence, if it be held here that New York has, by virtue of the third article in this agreement, only a police jurisdiction, it certainly would be broad enough to abate within that jurisdiction, what the Court *Page 315 at Special Term has found to be a public nuisance. To abate nuisances is one of the ordinary incidents of police jurisdiction. Hence, it would not help the defendant thus to qualify the exclusive jurisdiction given to the State of New York.
This construction will lead to no absurdities or difficulties. The jurisdiction of each State is clearly defined and limited, except as to the right on the part of New Jersey to serve process, to regulate the fisheries, and to own the land under water, and except her jurisdiction over the wharves, docks and improvements upon her shore, the jurisdiction of New York is exclusive. New Jersey has no right to make the wharves, docks and improvements without the consent of New York; but when they have been made by her consent, then the exclusive jurisdiction of New Jersey attaches. She cannot add to her jurisdiction and take away from the jurisdiction of New York by structures wrongfully made. If the low water mark, as it existed in 1833, is thrown forward by gradual accretion, the land thus reclaimed from the water will fall under the jurisdiction of New Jersey and the jurisdiction of New York will recede with the low water mark. (Kent's Com., 428;Attorney-General v. Chambers, 5 Jurist. N.S., 745;Deerfield v. Arms., 17 Pick., 41; Adams v. Frothingham,3 Mass., 352.) I conclude, therefore, that the structures and operations complained of in the complaint were within the State of New York and hence within the judicial jurisdiction of the court in which the action was commenced and tried. Having reached this conclusion, it is unnecessary to cite authorities to show that, upon the facts proved, the equitable jurisdiction of the Supreme Court was properly invoked and the judgment pronounced was fully authorized. The judgment should, therefore, be affirmed with costs.
GROVER, J., held with EARL, Ch. J., that this State has a general jurisdiction, but thought the treaty of 1833 gave to New Jersey jurisdiction of wharves, c., made and to be *Page 316 made, and power to decide where and how they shall be made, and was therefore for reversal.
All concur for reversal except EARL, Ch. J., who was for affirmance, and SUTHERLAND, J., who, having been of the court below, did not vote.
Judgment reversed and complaint dismissed with costs.