6 N.J.L. 1 (N.J. Sup. Ct. 1821)
In December 1819 at the Middlesex Circuit, plaintiff Arnold sued defendant Mundy in trespass for entering an oyster bed in the Raritan River at Perth Amboy and taking oysters.1
The bed lay on a mud flat in navigable waters where the tide ebbs and flows, approximately fifty yards below common low water mark, with some stakes extending below low water mark but not obstructing navigation.2
Arnold had purchased the adjacent Nevill farm in 1814.3 After taking possession, he staked off a larger portion of the bed that included an area previously staked by prior owner Joseph Coddington more than twenty years earlier.4 He planted oysters on the bed in successive seasons.
Arnold asserted title through three sources: a 20 January 1685 grant from the proprietors to Sonmans bounded on the Raritan River together with later grants extending only to low water mark; a 10 April 1818 grant from the proprietors by metes and bounds expressly including the precise locus of the trespass; and his own labor in gathering or purchasing oysters and depositing them on the staked area.
A warrant of location from the East Jersey proprietors led to a survey of 41.59 acres of land covered with water made on 3 April 1818 before the trespass, though the date of its inspection, approval, and recording relative to the trespass remained unclear on the record.5 Mundy and others entered the staked bed and removed oysters solely to test Arnold's claimed exclusive right.6 At trial Arnold presented evidence of the grants, the survey, the staking, and the planting; the circuit court, presided over by Chief Justice Kirkpatrick, ordered a non-suit.7
Upon return of the postea, Arnold's counsel obtained a rule to show cause why the non-suit should not be set aside and a new trial granted; the motion was argued at length in May term 1821 before the Supreme Court of New Jersey.8 The chain of title originated in the 1664 grant from Charles II to the Duke of York, followed by the Duke's conveyance to Berkley and Carteret, later transfers to the twenty-four proprietors of East Jersey, and the proprietors' established practice of issuing warrants authorizing surveys that severed common lands into severalty. The 1818 survey was produced at trial under the 1787 statute concerning limitation of suits respecting titles to lands, but no deed of conveyance from the proprietors to Arnold was offered.9 The defendant declined a proposal to take a verdict for damages only subject to the court's later opinion on title.10
Whether the proprietors of New Jersey held power to grant the soil and a several fishery in navigable rivers subject to the ebb and flow of the tide?11
By the law of nature, the civil law, and the common law of England, navigable rivers where the tide ebbs and flows, together with the soil under them, are common to all the people for navigation, fishing, and other uses; the sovereign holds title only in trust for public benefit and cannot alienate them as private property to individuals.12
No. The 1664 grant from Charles II to the Duke of York conveyed the royalties to the Duke in his sovereign capacity as governor for the public benefit of the colonists, not as private property.13 Upon the surrender of government to Queen Anne and the Revolution, those rights vested in the people of New Jersey as sovereign.14 The proprietors as such never possessed any right, interest, or power to convey the waters or the land covered by them after the surrender.15
The proprietors lacked power to grant the soil and a several fishery in navigable rivers subject to the ebb and flow of the tide.16
Related opinions on this issue
Justice Rossell wrote a concurring opinion addressing the central question of the proprietors' power over navigable waters.17 He observed that the taking of a few bushels of oysters raised questions of great importance affecting the rights of all citizens of the state.18 The history of settlement demonstrated that the proprietors and early settlers understood navigable rivers as common highways for the use and benefit of all inhabitants.19
The grants from the crown did not extinguish the common rights of Englishmen secured by Magna Charta.20 After reviewing the authorities on prerogative and the common law, Rossell concluded that the plaintiff had no such property in the oyster bed as to give him an exclusive right to the fishery there.21
Whether a 1818 proprietary survey and grant conveyed title to an oyster bed located below low water mark in the Raritan River?22
A survey made pursuant to a warrant from the proprietors severs common land into severalty only when inspected, approved, and recorded, but even a completed survey cannot convey title to land that the proprietors themselves lacked power to grant, such as the soil under navigable waters.23
No. The 3 April 1818 survey of 41.59 acres including the oyster bed was made before the trespass.24 Its inspection, approval, and recording occurred at an uncertain time relative to the trespass.25 In any event the proprietors held no power to convey the soil below low water mark in the navigable Raritan River.26
The 1818 proprietary survey and grant did not convey title to the oyster bed located below low water mark in the Raritan River.27
Whether the plaintiff established title to the oyster bed through the 1685 Sonmans grant, subsequent conveyances, or his own staking and planting of oysters?28
Title to land bounded on a navigable river where the tide ebbs and flows extends only to high water mark or at most low water mark.29 Staking, planting, and occasional fishing without prescription or grant do not establish exclusive possession against others with equal claim.
No. The 1685 Sonmans grant and later conveyances bounded only to low water mark and did not include the bed below that line.30 The staking off of the bed, planting of oysters, and occasional fishing by Arnold and prior owner Coddington were neither continuous nor exclusive, as others also fished there.31 No prescription or supporting grant was shown.32
The plaintiff did not establish title to the oyster bed through the 1685 Sonmans grant, subsequent conveyances, or his own staking and planting of oysters.33
Whether planting oysters on a natural bed in navigable waters created an exclusive property right enforceable by trespass action against others taking them?34
Oysters planted on a natural bed in navigable waters where the tide ebbs and flows are returned to their proper element and mix with the common mass, constituting an abandonment of any prior property right, so that others may take them without liability in trespass.35
No. Arnold gathered or purchased oysters and deposited them on a natural oyster bed in the navigable Raritan River below low water mark.36 This act returned them to their natural element on a bed where oysters had long grown and been taken by the public.37 The act amounted in law to a complete abandonment that gave no exclusive right enforceable against Mundy.38
Planting oysters on a natural bed in navigable waters did not create an exclusive property right enforceable by trespass action against others taking them.39
Whether the form of the 1818 survey, including its inspection, approval, and recording, was sufficient to pass title before the alleged trespass?40
Under the 1787 statute for limitation of suits respecting titles to lands, a survey precludes the proprietors only from and after the date it is inspected, approved, and recorded.41 Without proof that those acts preceded the trespass, the survey does not establish title as of the date of the alleged wrong.42
No. The 1818 survey was made before the trespass but the record did not show that inspection, approval, and recording had occurred before the trespass.43 The statute makes the survey operative only from and after recording.44 The absence of a deed of conveyance left the title unperfected at the time of the entry by Mundy.45
The form of the 1818 survey, including its inspection, approval, and recording, was not sufficient to pass title before the alleged trespass.46