State of New Jersey v. State of Delaware

• Decision Date: 05 February 1934
• Docket Number: O,No. 13,13
• Citation: 54 S.Ct. 407,78 L.Ed. 847,291 U.S. 361
• Parties: STATE OF NEW JERSEY v. STATE OF DELAWARE. riginal
• Court: U.S. Supreme Court

291 U.S. 361

54 S.Ct. 407

78 L.Ed. 847

STATE OF NEW JERSEY

v STATE OF DELAWARE.

No. 13, Original.

Argued Jan. 9, 10, 1934.

Decided Feb. 5, 1934.

[Syllabus from pages 361-363 intentionally omitted] Messrs. Duane E. Minard and George S. Hobart, both of Newark, N.J., Walter H. Bacon, and Wm. A. Stevens, of Red Bank, N.J., for the State of New Jersey.

Messrs. Clarence A. Southerland and Reuben Satterthwaite, Jr., both of Wilmington, Del., for the State of Delaware.

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 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, 50 S.Ct. 151, 74 L.Ed. 595), 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 river bed 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 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 river bed 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 in- stance 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 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 validity ever impaired by any act or proceeding.' By force of this grant there passed to the Duke of York a title to the land within the circle which inured by estoppel to the grantee under the feoffment.

The applicable principle in such circumstances is among the rudiments of the law of property. The covenant generating the estoppel is commonly one of warranty or seisin. Irvine v. Irvine, 9 Wall. 617, 19 L.Ed. 800; Van Rensselaer v. Kearney, 11 How. 297, 323, 325, 13 L.Ed. 703; Tefft v. Munson, 57 N.Y. 97; Vanderheyden v. Crandall, 2 Denio (N.Y.) 9, affirmed Wendell v. Crandall, 1 N.Y. 491; White v. Patten, 24 Pick.(Mass.) 324.² The effect is the same where the covenant is one for further assurance. Taylor v. Debar, 1 Chan.Cas. 274 (1676); Lamb v. Carter, 14 Fed. Cas. page 991, No. 8,013, 1 Sawy. 212; Wholey v. Cavanaugh, 88 Cal. 132, 25 P. 1112; Hope v. Stone, 10 Minn. 141 (Gil. 114); Norfleet v. Russell, 64 Mo. 176. To enforce that conclusion we do not need to wander far afield and consider other deeds than the specific one in question. There exists for our enlightenment the opinion of the chancellor in an historic litigation where the relation between the feoffment of August, 1682, and the later patent from the Crown, was the very point at issue. A dispute had arisen between Lord Baltimore and Penn as to the title to part of the Delaware territory. On May 10, 1732, after Penn was in his grave, there was an agreement between his sons and Baltimore for the settlement of the boundaries between Pennsylvania, Delaware, and Maryland. Three years later a bill was filed in chancery for the specific performance of the agreement of May, 1732, to which suit the Attorney General was made a party as the representative of the Crown.³ The Duke of York had become King under the name of James II on February 6, 1685, and George II sat upon the throne when the cause in chancery was heard. The Lord Chancellor, Hardwicke, gave judgment for the Penns. Penn v. Lord Baltimore, 1 Ves Sen. 444; also Ridg. t H. 332. In his opinion he holds that the effect of the letters patent is to make the deed of feoffment good either by force of an estoppel or by converting the feoffor into a trustee for the feoffee. The objection is urged upon him that an estoppel will not prevail against the Crown. The chancellor makes it plain that he is not favorably impressed. 'For the Duke of York, being then (i.e., at the date of the feoffment) in nature of a common person, was in a condition to be estopped by a proper instrument.' At the same time, he is diffident about declaring a technical estoppel, nor is there need to go so far. If his Majesty was not estopped, he was in any event a trustee of the title for the use of the feoffee, which will bring about a like result. 'The Duke of York * * * while a subject was to be considered as a trustee; why not afterwards as a royal trustee?' 'His successors take the legal estate under the same equity; and it is sufficient for plaintiffs if they have an equitable estate.' So Lord Baltimore must make performance in accordance with the contract. True, the decree for performance will be 'without prejudice to any prerogative, right, or interest in the Crown.' This again is by virtue of the deference owing to the Crown by the keeper of his conscience. 'Being liberated from the restraints of the lord chancellor, we are at liberty to say, that the duke, at the date of the deeds, being a subject, was, in this respect, only 'a common person,' and as much bound by estoppel as any other subject.' Per Sergeant, Arbitrator, in the case of Pea Patch Island, 30 Fed. Cas. pages 1123, 1151, No. 18,311.

In the meantime Penn had proceeded to organize a government for the Delaware territory. On October 29, 1682, he issued a summons to persons of note in the community to meet him at the town of New Castle on November 2 for the holding of a General Court to settle the jurisdiction of the territory. At that court he announced his title derived from the Duke of York, and instructed the magistrates that until laws were enacted by a proper assembly they should take for their guide the laws that had been provided by his Royal Highness for the Province of New York, promising that they should be governed thereafter by such laws and orders as they...