291 U.S. 361 (1934), 13, New Jersey v. Delaware

Docket Nº:No. 13, original
Citation:291 U.S. 361, 54 S.Ct. 407, 78 L.Ed. 847
Party Name:New Jersey v. Delaware
Case Date:February 05, 1934
Court:United States Supreme Court

Page 361

291 U.S. 361 (1934)

54 S.Ct. 407, 78 L.Ed. 847

New Jersey



No. 13, original

United States Supreme Court

Feb. 5, 1934

Argued January 9, 10, 1934


1. The boundary between Delaware and New Jersey, within a circle of twelve-miles about the town of New Castle, is the low water mark of the Delaware River on the East, or New Jersey, side, and below the circle it is the thalweg or main channel of navigation in Delaware River and Delaware Bay. Pp. 363, 385.

2. Delaware's title to the river bed within the circle is derived as follows:

(1) From a feoffment, describing the Delaware territory within the circle, including the river, its islands, and soil, made by the Duke of York to William Penn, August 24, 1682, when the present territory of Delaware, having been taken over from the Dutch, was governed as a dependency of the Government and Colony of New York under governors commissioned by the Duke. P. 364.

(2) Letters patent, March 22, 1682/3, from the Crown, granting to the Duke of York the identical lands and waters described in the deed of feoffment, and inuring to the feoffee by virtue of a covenant for further assurance contained in the deed of feoffment. P. 365.

(3) Confirmation of the title by practically uninterrupted possession of the Delaware territory on the part of Penn and his successors, as Proprietaries and Governors, from the date of the feoffment to the Revolution. P. 368.

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(4) Succession of the Delaware to dominion over the same territory. P. 370.

3. Early Acts and Resolutions of the Legislature of the State of Delaware attacking the right of the Penns to the vacant and uncultivated lands within the state and for that purpose declaring that the right of soil was, at the date of the Treaty of Paris, in the British Crown, and passed by that Treaty to the citizens of the state, had no effect, either as an estoppel or as a practical construction, upon the ancient boundaries of the colony and state as laid down originally by the letters patent of 1683. P. 371.

4. The letters patent of 1683 were not surrendered. P. 373.

5. The Crown had power to grant away the soil beneath navigable waters as an incident to a grant or delegation of powers strictly governmental. P. 373.

6. Acquiescence by Delaware in wharfing out by riparian proprietors from the New Jersey side did not affect her sovereign title to the riverbed within the circle. P. 375.

7. Acts of dominion by New Jersey over the riverbed beyond the low water mark, within the twelve mile circle, such as service of process, assessments for taxation, the making of deeds, etc., could not serve to alter the boundary, not having been acquiesced in by Delaware. P. 376.

8. The compact between New Jersey and Delaware of March, 1905, relating to riparian rights, service of process, and rights of fishery, did not affect the boundary. P. 377.

9. When New Jersey and Delaware became independent states, the title to the soil of the river below the circle and to the soil of the bay had not been granted, but still was in the Crown of England, and the division of these waters is to be determined by the principles of international law. P. 378.

10. The modern rule of international law divides boundary rivers between states by the main channel of navigation, if there is one, rather than by the geographical center, and applies the same doctrine of equality to estuaries and bays in which the dominant sailing channel can be followed to the sea. P. 379.

11. The doctrine of thalweg is applicable between states of the Union where the boundary in question has not been fixed in some other way, as by agreement, practical location, prescription, and it applies even as between states that existed before the doctrine became fully established in international law. Pp. 380, 383.

12. Delaware's claim that there is not, or was not in 1783, any definite channel of navigation down Delaware Bay, and her contention that

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the geographical center should be made the boundary in the river below the circle to avoid a sharp and inconvenient turn where the river meets the bay, are rejected. Pp. 379, 383.

Final Hearing on the report of William L. Rawls, Esq., Special Master, in a suit to establish the boundary between the two states. Leave was granted to file the bill of complaint in this case on June 3, 1929 (279 U.S. 825), and it was filed on June 4, 1929. The defendant's answer was filed on October 7, 1929, and on January 8, 1930 (280 U.S. 529), the Special Master was appointed and the case referred to him. His report was filed October 9, 1934, and the cause was argued on exceptions to that report.

CARDOZO, J., lead opinion

MR. JUSTICE CARDOZO delivered the opinion of the Court.

Invoking our original jurisdiction, New Jersey brings Delaware into this Court and prays for a determination of the boundary in Delaware Bay and river.

The controversy divides itself into two branches, distinct from each other in respect of facts and law. The first branch has to do with the title to the bed or subaqueous soil of the Delaware river within a circle of twelve miles about the town of New Castle. Delaware claims to be the owner of the entire bed of the river within the limits of this circle up to low water mark on the east or New Jersey side. New Jersey claims to be the owner

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up to the middle of the channel. The second branch of the controversy has to do with the boundary line between the two states in the river below the circle and in the bay below the river. In that territory, as in the river above, New Jersey bounds her title by the thalweg. Delaware makes the division at the geographical center, an irregular line midway between the banks or shores.

The special master appointed by this Court in January, 1930 (280 U.S. 529), has now filed his report. As to the boundary within the circle, his report is in favor of Delaware. To that part of the report exceptions have been filed by New Jersey. As to the boundary in the bay and in the river below the circle, his report is in favor of New Jersey. To that part exceptions have been filed by Delaware. The two branches of the controversy will be separately considered here.

First. The boundary within the circle.

Delaware traces her title to the riverbed within the circle through deeds going back two and a half centuries and more.

On August 24, 1682, the Duke of York delivered to William Penn a deed of feoffment for the twelve-mile circle whereby he conveyed to the feoffee

ALL THAT the Towne of Newcastle otherwise called Delaware and All that Tract of Land lying within the Compass or Circle of Twelve Miles about the same scituate lying and being upon the River Delaware in America And all Islands in the same River Delaware and the said River and Soyle thereof lying North of the Southermost part of the said Circle of Twelve Miles about the said Towne.

On October 28, 1682, there was formal livery of seisin of the lands and waters within the twelve-mile circle. John Moll and Ephriam Herman, attorneys appointed in the deed of feoffment, gave possession and seisin

by delivery of the fort of the sd Town and leaving the sd William Penn in quiet and peaceable possession thereof and allso

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by the delivery of turf and twig and water and Soyle of the River of Delaware. . . . We did deliver allso unto him one turf with a twigg upon it a porringer with River water and Soyle in part of all what was specified in the sd Indentures or deeds.

By force of these acts, there was conveyed to the feoffee any title to the riverbed within the circle that then belonged to the feoffor. New Jersey insists, however, that the feoffor, the Duke of York, was not then the owner of any territory west of the easterly side of the Delaware river, and hence, at the time of the feoffment, had no title to convey. Letters patent from Charles II, dated May 12, 1664, had granted to the Duke full title to and government of a large territory in America, embracing much of New England and, in particular, "all the land from the west side of Connecticut River to the east side of Delaware Bay," not including, however, lands or waters to the west. True, the Duke had gone into possession of lands westward of the grant, including land within the circle, and, through his delegates and deputies, was exercising powers of government. His acts in that behalf were the outcome of conflicts with the Dutch. What is now the state of Delaware had been subject to the government of the Dutch until 1664, when, with the victory of the English arms, it became an English colony. From that time until August 24, 1682, the date of the deed of feoffment, Delaware was governed (with the exception of a brief period from July, 1763, to February 9, 1764) as a dependency of the Government and Colony of New York through governors commissioned by the Duke of York and Albany. Upon the delivery of the deed to Penn, the Duke was the de facto overlord of the land within the circle, though title at that time was still vested in the Crown.

The deed of feoffment had in it a covenant for further assurance at any time within seven years. At the instance

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of Penn and with little delay, the feoffor took steps to carry out this covenant, and thus rectify his title. On March 22, 1682/3, letters patent under the Great Seal of England were issued to the Duke of York for the identical lands and waters described in the deed of feoffment from York to William Penn.1 There is no doubt that these [54 S.Ct. 409] letters were delivered to the Duke. The special master has found, upon evidence supporting the conclusion, that they were afterwards delivered to Penn, from whom they passed to his descendants. The master also found, and again upon sufficient evidence, that the letters patent so delivered

were never thereafter surrendered, nor was the grant of lands and waters thereby made ever abandoned, nor was its...

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