George Rundle and William Griffiths, Trustees of the Estate of John Savage, Deceased Plaintiffs In Error v. the Delaware and Raritan Canal Company

• Decision Date: 01 December 1852
• Citation: 14 L.Ed. 335,55 U.S. 80,14 How. 80
• Parties: GEORGE RUNDLE AND WILLIAM GRIFFITHS, TRUSTEES OF THE ESTATE OF JOHN SAVAGE, DECEASED, PLAINTIFFS IN ERROR, v. THE DELAWARE AND RARITAN CANAL COMPANY
• Court: U.S. Supreme Court

55 U.S. 80 14 How. 80 14 L.Ed. 335 GEORGE RUNDLE AND WILLIAM GRIFFITHS, TRUSTEES OF THE ESTATE OF JOHN SAVAGE, DECEASED, PLAINTIFFS IN ERROR, v. THE DELAWARE AND RARITAN CANAL COMPANY. December Term, 1852

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,

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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

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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

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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,

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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 &amp...