# Rundle v. Delaware

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## Dissenting Opinion

    Daniel

## Separate Opinion

    Catron
United States Supreme Court
55 U.S. 80
Rundle v. Delaware
THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of New Jersey.
The facts in the case are set forth in the opinion of the court.
It was argued in print by Mr. Ashead and Mr. Vroom for the plaintiffs in error, and by Mr. John M. Read orally, for the defendants in error. There was also a printed argument upon the same side, submitted by himself and Mr. Green.
The arguments, upon both sides, contained historical accounts of the legislation of Pennsylvania and New Jersey on the subject of the River Delaware, and the various compacts and negotiations between them. It is impossible, in the report of a law case, to give an explanation of these transactions, commencing before the Revolution. Those who may have occasion to investigate the matter minutely, would do well to obtain from the counsel their respective arguments. All that will be attempted, in this report, will be to give an account of the points which were made.
The declaration charged the Canal Company with having,
1. Erected a dam in the River Delaware, above the works of the plaintiffs, and, by means of it, obstructed and penned up the waters of the river.
2. With digging a canal, and diverting the waters of the river into it, and so leading them into the State of New Jersey.
3. With cutting off the streams and brooks which theretofore had been tributary to the said River Delaware, and preventing them from flowing into it.
4. With using the waters, taken from the river, to supply the said canal, and to create a water power, from which they supply various mills, manufactories, and other establishments, with water, for the sake of gain.
The judgment of the court upon the demurrer being that the plaintiffs had no right of action, the counsel for the plaintiffs in this court assumed the following as the grounds upon which the court below founded its decision, which grounds they severally contested.
The points ruled in the court below, and of which the plaintiffs complain as being erroneous, are:
1. That the authority under which the dam of Adam Hoops has been kept and maintained in the River Delaware, since the year 1771, was not a grant, but a license, revokable at the pleasure of New Jersey alone, and, at best, impunity for a nuisance.
2. That the plaintiffs, who claim as the assignees of Adam Hoops, for the diversion of the water from their mills, cannot recover, because their works are situated in the State of Pennsylvania, and not in New Jersey, and that the claim for damages must be regulated by the rule established by the Pennsylvania courts, which rule is opposed to the one recognized in the State of New Jersey, and applied by the Supreme Court to these defendants in error in a similar case.
3. That it is not competent for the plaintiffs to question the authority of New Jersey, to take the waters of the Delaware for her public improvements, without the consent of Pennsylvania.
First Point. With respect to the first point, the counsel for the plaintiffs in error contended,
1. That the said acts were, in form, substance, and legal effect, a grant, and not a license. They then commented on the acts, and cited the following authorities:
An authority given, will operate by way of license or grant, according to its nature and the intention of the parties. Thus, in 15 Viner's Ab. Tit. Lease, (N.) Pl. 1, it is said, 'That if a man license me to enter into his land, and to occupy it for a year, half year, or such like, this is a lease and shall be so pleaded.' A confirmation of a title by act of Congress, (which was the least effect to be given to the acts of 1771 and 1804,) not only renders it a legal title, but furnishes higher evidence of that fact than a patent, inasmuch as it is a direct, whereas a patent is only the act of its ministerial officer. Grignon's Lessee v. Astor, 2 Howard, 319; Sims v. Irvine, 3 Dallas, 425; Patton v. Easton, 1 Wheaton, 476; Strother v. Lucas, 12 Peters, 410. In this latter case, at page 454, it is said by Judge Baldwin, delivering the opinion of the court, 'that a grant may be made by a law, as well as a patent pursuant to a law, is undoubted, 6 Cr. 128; and a confirmation by a law, is as fully, to all intents and purposes, a grant, as if it contained in terms a grant de novo.'
2. If the acts of 1771 are to be regarded as a technical license, such license is not revocable by the parties granting it, or either of them, it being a license not executory, but executed, on the faith of which large expenditures had been incurred, previous to the alleged revocation by the State of New Jersey, in 1830, by the passage of the act chartering the Delaware and Raritan Canal.
The authorities are clear and conclusive, that a license by one man to another, to make use of his land for purposes requiring expenditures of money, and contemplating permanence, is, in effect a grant, and is not revocable in its nature. Thus, in Rerick v. Kern, 14 S. & Rawle, 267, it is said that, 'permission to use water for a mill, or or any thing else that was viewed by the parties as a permanent erection, will be of unlimited duration and survive the erection itself, if it should be destroyed, or fall into a state of dilapidation.' Although a license executory may be revoked, yet a license executed cannot be. Winter v. Brockwell, 8 East, 308. Lord Ellenborough says, in this case, 'that he thought it unreasonable, that, after a party had been led to incur expense, in consequence of having obtained a license from another to do an act, and that the license had been entered upon, that either should be permitted to recall his license.' In Taylor v. Waters, 7 Taunton, 374, it is decided that a license granted on consideration cannot be revoked Liggins v. Inge, 7 Bingham, 682, (20 English Com. Law. 287,) decides that where the plaintiff's father, by oral license, permitted the defendant to lower the bank of a river, and to make a weir above the plaintiff's mill, whereby less water than before flowed to the plaintiff's mill, the plaintiff could not sue the defendants for continuing the weir; the court holding that the license in that case, being executed, was not countermandable by the party who gave it. So, in Wood v. Manly, 11 Adol. & Ellis, 34, (39 Eng. Com. Law 19,) it was held that a license to enter upon land to take away property purchased thereon, was part of the consideration of the purchase, and could not be revoked. The case of Webb v. Paternoster, (Palmer, 151,) asserts the general principle, that an executed license is not countermandable. Rerick v. Kern, (14 S. & Rawle, 267,) was the case of a license to use a water power, given without any consideration, and held not revocable. The court said the license 'was a direct encouragement to spend money,' and 'it would be against all conscience to annual it,' and further, that 'the execution of it would be specifically enjoined; and that the party to whom the license was granted would not be turned round to his remedy for damages.' 'How very inadequate it would be, in a case like this,' says the court, 'is perceived by considering that a license, which has been followed by the expenditure of ten thousand dollars, as a necessary qualification for the enjoyment of it, may be revoked by an obstinate man who is not worth as many cents.' Again, it is remarked-'having had in view an unlimited enjoyment of the privilege, the grantee has purchased, by the expenditure of money, a right indefinite in point of duration.'
3. If the joint acts of 1771 and 1804, are ever to be regarded as a revocable license, and not as a grant, such license has never been actually revoked by both or either of the State legislatures. The act of 1830, by which the Delaware and Raritan Canal Company was chartered by the State of New Jersey, contains no such provision, and a revocation by implication will not be inferred where so great a wrong would be perpetrated on an individual.
4. Admitting that the State of New Jersey, by the act chartering the Delaware and Raritan Canal Company, intended to revoke the grant or executed license made to Adam Hoops, and those claiming under him, it was incompetent for that State to do so.
If the joint act of the legislatures of the two States be a grant, or, what is the same in legal effect, an executed license, then that grant or executed license is a contract within the meaning of the constitution, and cannot be impaired by subsequent legislation. Fletcher v. Peck, 6 Cranch, 87; Terret v. Taylor, 9 Cranch, 43. Where a legislature has once made a grant, it is as much estopped by it as is an individual. Such a grant amounts to an extinguishment of the right of the grantor, and a contract not to reassert that right. Id. It is a principle applicable to every grant that it cannot effect pre existing titles. Although a grant is conclusive on its face, and cannot be controverted, yet if the thing granted is not in the grantor, no right passes to the grantee. City of New Orleans v. Armas, 9 Peters, 224; New Orleans v. United States, 10 Peters, 662; Lindsey
Lessee of Miller, 6 Peters, 666.
Again: If the franchise and privileges, secured to the plaintiffs by the joint acts of 1771, are the subject of legislative revocation, the revocation must certainly be as extensive as the license accorded. It must, to be effectual, be the joint act of both legislatures, and not the separate act of either. Pennsylvania was no party to the charter granted by New Jersey to the defendants. Indeed, she refused to become such, on the terms proposed by her. In many respects, this case resembles that of the Chesapeake and Ohio Canal Company v. The Baltimore and Ohio Railroad Company, 4 Gill & Johns. 1. This was the case of a contest between the plaintiffs, who claimed under the joint acts of the States of Maryland and Virginia and the United States, and the defendants, who claimed part of the same franchise under a separate act of the State of Maryland. It was held, that neither Maryland nor Virginia, without the consent of the other, could impair a charter granted by their previous joint legislation, nor could they do so even jointly.
Second Point. The second proposition ruled by the learned Judge below, was, that the plaintiffs, who claim as the assignees of Adam Hoops, for the diversion of the water from their mills, cannot recover, because their works are situated in the State of Pennsylvania, and not in New Jersey, and that the claim for damages must be regulated by the Pennsylvania courts, which rule is opposed to the one recognized in the State of New Jersey, and applied by the Supreme Court to these defendants in error in a similar case.
1. The accuracy of this position is denied; because the action, having been instituted in the Circuit Court of New Jersey, against a New Jersey corporation, to recover damages consequent upon the erection of a public work exclusively within her own soil, the laws of New Jersey and the decisions of its Supreme Court, must furnish the rule of decision as to the extent of the liability of this corporation for the act complained of, and not the laws and decisions of Pennsylvania, as to the liability of Pennsylvania corporations.
2. If the plaintiffs' claim for damages is to be regulated by the decisions in Pennsylvania, there is no case of binding authority in the adjudications of Pennsylvania, which rules this point against them; the doctrine not going to the extent supposed by the learned Judge.
Third Point. The third point ruled by the learned Judge below, is, 'that it is not competent for the plaintiffs to question the authority of New Jersey to take the waters of the Delaware River for her public improvements, without the consent of Pennsylvania, the channel and waters of this river being vested in the two States, as tenants in common, and no one can question the authority of either to divert the water, but the other.'
(These points were examined and contested.)
It has been before mentioned, that the briefs of the counsel contained references to numerous historical documents. That filed on the part of the defendants in error was very elaborate, and Mr. Read referred to them in his oral argument. The summing up was as follows:
We have thus presented a chronological detail of the history of the Delaware, and of the legislative negotiation, and executive action of both States in relation to the river, its navigation, and the various uses of its water for canal or mill purposes; and we think it can leave no doubt, in any dispassionate mind, that the plaintiffs in error have no title whatever to claim damages from the Delaware and Raritan Canal Company, for taking water from the river for the use of its canal, under a direct and positive authority granted by the legislature of New Jersey.
Adam Hoops's dam, uniting the main land with Bird's Island, and extending from the head of it into the main channel of the river, and perhaps one other dam on the Pennsylvania side, were erected by the owners of the fast land, prior to 1771, without any authority whatever, either from the crown, or the provincial government. Now, these erections being in the river, and beyond the low-water mark, whether the tide ebbed and flowed there or not, or whether the river was then vested in the crown or the proprietaries, were, by the unquestioned law of Pennsylvania, nuisances, and could have been abated by individuals, and certainly by the authorized agents of the government.
The law of Pennsylvania is well stated by Mr. Justice Grier, in this case. 'But the law of Pennsylvania,' says the learned Judge, '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.' Rundle v. Delaware and Raritan Canal Company, Wallace, Jr. 297.
In the case of Carson v. Blazer, the Supreme Court of that State, decided that the large rivers, such as the Susquehanna and Delaware, were never deemed subject to the common law of England applicable to fresh-water streams; but 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 public; and that the riparian owners have, therefore, no exclusive right to the soil or water of such river, ad filum medium aquae.
These principles are fully sustained by all the Pennsylvania cases down to the present time, which are cited below, and which also exemplify the doctrine that mere tolerations or licenses on navigable streams, are always in the power of the sovereign, and can be withdrawn, at any moment, without any violation of the constitutional provision.
These nuisances were in existence at the passage of the act of 9th March, 1771, and, under its general terms, the commissioners named in it, would have been obliged to abate them at once, as artificial obstructions to the navigation, except for the proviso in the 7th section, which prohibits the commissioners, therein appointed, from removing or altering the same. The same observation applies to the New Jersey act of the same year.
'But,' to use again the language of the learned Judge below, '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, or, 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; nor can the plaintiff claim by prescription against the public for more than the act confers on him, which, at best, is but an impunity for a nuisance.' 2 Binn. 475; Brown v. Commonwealth, 3 S. & R. 273; Shrunk v. Schuylkill Navigation Co. 14 S. & R. 71; Bacon v. Arthur, 4 Watts, 437; Couvert v. O'Connor, 8 Watts, 470; Ball v. Slack, 2 Wharton, 508, 538; Monongahela Nav. Co. v. Coons, 6 W. & S. 101; Susquehanna Canal Co. v. Wright, 9 Id. 9; Commonwealth v. Church, 1 Barr, 105; Fisher v. Carter, 1 Wallace, Jr. 69; Mayor v. Commissioners of Spring Gardens, 7 Barr, 348; Reading v. Commonwealth, 1 Jones, 201; M'Kinney v. Monongahela Nav. Co. 2 Harris, 66; Henry v. Pittsburg, 8 W. & S. 85; O'Connor v. Pittsburg, Sept. 1851, MS.; Wallace, Jr. 300, 301.
But if there be any doubt on this subject, it is removed by a reference to the agreement of 26th April, 1783, between the two sovereign States of New Jersey and Pennsylvania, then recognizing no common superior, and not affected by any provision afterwards contained in the Constitution of the United States.
The acts of 1771 were temporary in their character, and all operations under them ceased from the commencement of the Revolutionary War. The compact of 1783, which is perpetual in its operation, declared 'the River Delaware, from the station point, or north-west corner of New Jersey northerly, to the place upon the said river where the circular boundary of the State of Delaware toucheth upon the same, in the whole length and breadth thereof, is, and shall continue to be and remain a common highway, equally free and open for the use, benefit, and advantage of the said contracting parties.'
Such language admits of no dispute. It is a complete and total revocation of all license or toleration, or grant of any kind to any dams or works erected on the Pennsylvania or Jersey side of the river, which were nuisances ab origine.
It cannot be supposed that two or more original nuisances were saved out of the general and comprehensive terms of the compact, and that they are to subsist to all future time as obstacles to any use of the river, by either or both States, which may in any manner affect the works thus placed on the soil and in the waters of the public.
This view is supported by the unbroken legislation of Pennsylvania particularly-by the ground taken by her commissioners in 1817, and virtually recognized by those of New Jersey, and by the subsequent agreements of 1829 and 1834, entered into by the commissioners of both States, which treated these works as nuisances, and as not to be regarded in any disposition to be made of the waters of the river, whether by the erection of dams, or for the supply of canal or water power.
They were in fact treated as if they had no legal existence. Can such a title give a claim for damages upon a company incorporated by a sovereign State of the confederacy?
It is also clearly 'not competent for the plaintiffs to question the authority of New Jersey to take the waters of the Delaware for her public improvements, without the consent of Pennsylvania. The cannel and waters of this river are vested in the two States, as tenants in common, as we have already seen; and no one can question 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 public improvements of either of its sovereign owners.'
Mr. Justice GRIER delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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