6 N.J.L. 1 (N.J. 1821), Arnold v. Mundy

Citation:6 N.J.L. 1
Opinion Judge:KIRKPATRICK C. J.
Party Name:ROBERT ARNOLD v. BENAJAH MUNDY
Judge Panel:KIRKPATRICK, C. J., ROSSELL, J., Judge FORD. KIRKPATRICK C. J. ROSSELL J. Judge FORD
Case Date:November 01, 1821
Court:Supreme Court of New Jersey

Page 1

6 N.J.L. 1 (N.J. 1821)

ROBERT ARNOLD

v.

BENAJAH MUNDY

Supreme Court of New Jersey

November, 1821

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This was an action of trespass for breaking the close of the plaintiff, situated in Perth Amboy, and taking his oysters, & c. The cause came on to be tried at the Middlesex circuit, before his honour the Chief Justice and a special jury, at the December sessions, 1819. On the trial, the plaintiff deduced title to the oystery--

1. Under surveys to Peter Sonmans, dated 28th March, 1689-90, and 20th January, 1685, to the river opposite to the oystery, and deduced title down to himself.

2. Under a survey, dated 8th April, 1818, for the land where the oysters were planted; and showed a number of grants of fisheries and beds of navigable rivers by the proprietors, both before and after the surrender.

The plaintiff proved, that Coddington, from whom he purchased the farm, had staked off the oyster beds in dispute in front of his farm near thirty years ago. That he claimed the exclusive right to the enjoyment of the oysters, and attempted, and did drive people off who came under a claim of common right; some of them, however, would resist, and several lawsuits grew out of their disputes.

After the plaintiff purchased, he bought oysters, and planted them on the beds, and staked it off. It appeared, that he was at considerable expense in planting, and bought several boat loads, and claimed an exclusive right as far as he had planted, and drove off, as far as he was able, every one who attempted to take oysters without his leave. The staking was no injury to the navigation. The bed from which the oysters were taken is bare at very low tides, but is below the ordinary low water mark. After the survey of 1818, the defendant came, at the head of a small fleet of skiffs, and took away these oysters, avowedly to try the right.

The defendant pleaded not guilty, and gave notice, that the locus in quo was a public navigable river, in which the tide flows and reflows, in which oysters grow naturally, and that all the citizens of the state had a common right to take oysters therein & c. After the plaintiff had rested his cause,

The counsel for the defendant, Messrs. Wood and Scott, moved for a nonsuit. They contended that the claim under the Sonmans' patent of 1685 and 1689-90, bounded on the river, and therefore was limited to high water mark. That the title by occupancy had not been made out in proof; inasmuch as the people had always claimed their rights while Coddington was in possession, and no acquiescence of this kind would take away a public right, which was now claimed by the defendant. The plaintiff must therefore depend upon his title under the survey of 1818, and, if that will not support him, he must be nonsuit.

They contended--

1. That the right to the soil of navigable rivers, where the tide ebbs and flows, is in the people of New Jersey, and belongs to the state.

That the soil to navigable rivers, the sea and the arms thereof, was not granted by king Charles II. to the duke of York, by the fair construction of the charter; and that, if it was, it was void, as the king could not, on the principles of the common law, make such a grant. That he held the right thereto for great public purposes, as trustee for the public, and subject to the right of the people to navigate and fish, & c. It was public domain and the property of the nation, and on principles of national law, as well as the common law, could not be granted by the king.

2. That if the proprietors had a right to the soil of the Rariton river, they could not grant a right of several fishery, and thus deprive the people of New Jersey of their rights. The right of common fishery was a vested right, derived from, and sanctioned by, common law principles, and which their ancestors brought over with them.

By the usurpation of the Norman kings on the principles of Saxon liberty, prior to the reign of Henry II. the king might grant a fishery; but since then he is restrained by Magna Charta, which simply restored the principles of the ancient law.

That the English pretended to claim this country by the right of discovery, which was a mere inchoate right, and could not be consummated until they found inhabitants and occupied the country.

That the people brought over to this country the same rights which they possessed in England. They had the same rights in navigable rivers here as in England; and the king had no greater rights over the people of this country than over the people of England. Magna Charta applied here in full force. This was declared by the Declaration of Independence, and asserted by all our writers of the day; and was one of the great principles upon which our revolutionary patriots founded their opposition to the acts of parliament.

It was further contended, that if the grant of Charles II. passed the right of fishery at all, it was as an incident of the sovereign power, and revested in the sovereign by the surrender, and, on the Revolution, as one of the incidents of sovereignty vested in the people; and none but the legislative power could control the rights of the people.

Again--that admitting that the king of England could grant the soil of the rivers and the right of several fishery, yet his delegates or sub-sovereigns could not; and therefore the duke of York could not grant it, as he was restricted to govern according to the laws and statutes of England. By the grant to the duke of York, he took a feudality, and not an allodium. By the surrender, the rights of property were left as before, but the right of fishery, being a royal franchise, an act of sovereign power, if it ever vested in the grantees of the duke of York vested as incident to the sovereign power, and, by the surrender, passed with the powers of government.

The counsel for the defendant cited, illustrated, and relied on the following cases. Cooper's Justinian 68. Vattel 11, 117. 2 Black. Com. 39. 4 Bac. Abr. Prerogative (D) 156. 3 Cruise 297 (2 vol. Am. Ed.) Willes' Rep. 265. Bracton (en passim.) 6 Mod. R. 73 (93.) Salk. 357. Vattel 99 (S. 207.) 1 Black. Com. 167 (107.) Allinson's N. J. Laws 57. Leaming & Spicer, Grants and Concessions 589, sec. 13 of Surrender. 1 Penn. 391. South. R. 61. Leaming & Spicer 627 (S. 33) 590, art. 13. 2 Penn. 942. Val. 391. Pat. 79, 416. Smith's Hist. N. J. 89, 119, 120, 188, 256, 291. 2 Black. Com. 417. 2 H. Black. 182.

The counsel for the plaintiff contended--

That the great principle of the common law respecting property is, to assign to everything capable of ownership an owner That law assigned the ownership of the sea and the arms thereof, and the navigable rivers to the king. He has not only a right of jurisdiction over the sea, but he has a right of property and ownership of the soil of the mare clausum, the arms of the sea and navigable rivers, founded on his ability to possess them by his navies. A subject may have a right in the soil of the sea & c. by grant from the king; and in rivers where the tide does not ebb and flow, and not navigable, a grant to the bank gives them the right of soil to the filum aquae.

That whoever has a right to soil covered with water, the right of fishing is annexed to it. That no common law case has been produced denying this position. That the only doctrines that conflict with it are drawn from the civil law. The common law writers all acknowledge the right of the king to grant or alienate whatever he holds in propriety, as the head of the nation.

The doctrine of the defendant proves too much; as, if true, it shows that he had no right to grant the land of New Jersey at all, it being as much part of the public domains as the rights of fishery. That what passed under the grant to the duke of York, cannot be questioned in New Jersey, after a lapse of two centuries. It has been settled in New Jersey, and we hold all our rights under it. The right of fishing is annexed to the soil, and whoever has the right of soil, has the right of fishing. The right of the king results from the law assigning to him the ownership of the soil.

In answer to the assertion, that the right to a several fishery does not exist in navigable rivers in New Jersey, it was said, that the cases on which the defendant relies are cases of mere dicta, and also are cases of free fishery, which is not founded on the right of soil, and are therefore not hostile to our positions. That much confusion has arisen from the inaccuracy in the books, in confounding free and several fisheries. The plain rule to be extracted from the books is, that while the soil of the sea & c. remains in the king, the people have a common right of fishing, not a jus publicum, which is only applicable to highways. There the jus privatum of the subject is charged with the jus publicum, which does not belong to the king only, but to his subjects, and cannot be taken away without prostration of liberty. The right of fishery is different, and may be compared to the right of common, which exists until an appropriation of the thing in common, and then ceases.

That the only sound distinction between the right of fishery in navigable rivers and rivers not navigable is, that in the latter it must belong to a citizen, and in the former, prima facie, it is in the king, and so long as it remains in him it is public and common. The right of free fishery is a royal franchise, but the right of several fishery is not, and this distinction destroys the whole of the adverse argument. The right of several fishery is a right by reason of, and in concomitance with the land, and founded on, and...

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61 practice notes
  • 292 A.2d 580 (N.J.Super.L. 1971), New Jersey Sports and Exposition Authority v. McCrane
    • United States
    • New Jersey Superior Court of New Jersey
    • November 15, 1971
    ...235 A.2d at 9. The genesis of the public trust doctrine can be gleaned from the opinion by Chief Justice Kirkpatrick in Arnold v. Mundy, 6 N.J.L. 1, 69-78 (Sup.Ct.1821). There are two types of public property, one "reserved for the necessities of the state, and * * * used for the publi......
  • 777 A.2d 1015 (N.J.Super.A.D. 2001), East Cape May Associates v. State, Dept. of Environmental Protection
    • United States
    • New Jersey Superior Court of New Jersey
    • July 25, 2001
    ...Ass'n v. Matthews, 469 U.S. 821, 105 S.Ct. 93, 83 L.Ed.2d 39 (1984); Karam, supra, 308 N.J.Super. at 240, 705 A.2d 1221; Arnold v. Mundy, 6 N.J.L. 1, 3 (Sup.Ct.1821). That doctrine provides that the sovereign never waives its right to regulate the use of public trust property, such as land ......
  • 825 A.2d 534 (N.J.Super.A.D. 2003), Secure Heritage, Inc. v. City of Cape May
    • United States
    • New Jersey Superior Court of New Jersey
    • June 24, 2003
    ...doctrine dictates that trust lands must be "held, protected, and regulated for the common use and benefit." Arnold v. Mundy, 6 N.J.L. 1, 71 (1821). In Slocum, the trial judge found that, because these lands are held in trust for the public, municipalities have a duty to take speci......
  • East Cape May Assoc v. NJ Dept of Environmental Protection, 090401 NJCA, 1000-99
    • United States
    • May 14, 2001
    ...Improvement Ass'n v. Matthews, 469 U.S. 821, 105 S.Ct. 93, 83 L.Ed.2d 39 (1984); Karam, supra, 308 N.J. Super. at 240; Arnold v. Mundy, 6 N.J.L. 1, 3 (Sup. Ct. 1821). That doctrine provides that the sovereign never waives its right to regulate the use of public trust property, such as land ......
  • Free signup to view additional results
43 cases
  • 292 A.2d 580 (N.J.Super.L. 1971), New Jersey Sports and Exposition Authority v. McCrane
    • United States
    • New Jersey Superior Court of New Jersey
    • November 15, 1971
    ...235 A.2d at 9. The genesis of the public trust doctrine can be gleaned from the opinion by Chief Justice Kirkpatrick in Arnold v. Mundy, 6 N.J.L. 1, 69-78 (Sup.Ct.1821). There are two types of public property, one "reserved for the necessities of the state, and * * * used for the publi......
  • 777 A.2d 1015 (N.J.Super.A.D. 2001), East Cape May Associates v. State, Dept. of Environmental Protection
    • United States
    • New Jersey Superior Court of New Jersey
    • July 25, 2001
    ...Ass'n v. Matthews, 469 U.S. 821, 105 S.Ct. 93, 83 L.Ed.2d 39 (1984); Karam, supra, 308 N.J.Super. at 240, 705 A.2d 1221; Arnold v. Mundy, 6 N.J.L. 1, 3 (Sup.Ct.1821). That doctrine provides that the sovereign never waives its right to regulate the use of public trust property, such as land ......
  • 825 A.2d 534 (N.J.Super.A.D. 2003), Secure Heritage, Inc. v. City of Cape May
    • United States
    • New Jersey Superior Court of New Jersey
    • June 24, 2003
    ...doctrine dictates that trust lands must be "held, protected, and regulated for the common use and benefit." Arnold v. Mundy, 6 N.J.L. 1, 71 (1821). In Slocum, the trial judge found that, because these lands are held in trust for the public, municipalities have a duty to take speci......
  • East Cape May Assoc v. NJ Dept of Environmental Protection, 090401 NJCA, 1000-99
    • United States
    • May 14, 2001
    ...Improvement Ass'n v. Matthews, 469 U.S. 821, 105 S.Ct. 93, 83 L.Ed.2d 39 (1984); Karam, supra, 308 N.J. Super. at 240; Arnold v. Mundy, 6 N.J.L. 1, 3 (Sup. Ct. 1821). That doctrine provides that the sovereign never waives its right to regulate the use of public trust property, such as land ......
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