Marine and Coastal Law: Cases and Materials

The questions before us arise upon an action to recover one hundred acres of land, covered with water, situated in the township of Perth Amboy, in the State of New Jersey. At the trial in the Circuit Court, the jury found a special verdict, setting forth, among other things, that the land claimed lies beneath the navigable water of the Raritan River and Bay, where the tide ebbs and flows. And it appears that the principal matter in dispute is the right to the oyster fishery in the public rivers and bays of East New Jersey.

The plaintiff makes title under the charters granted by Charles II to his brother the Duke of York, in 1664 and 1674, for the purpose of enabling him to plant a colony on this continent.

The boundaries in the two charters are the same, and they embrace the territory which now forms the state of New Jersey. The part of this territory, known as East New Jersey, afterward, by sundry deeds and conveyances, which it is not necessary to enumerate, was transferred to twenty-four persons, who were called the proprietors of East New Jersey; who by the terms of the grants were invested, within the portion of the territory conveyed to them, with all the rights of property and government which had been originally conferred on the Duke of York by the letters patent of the king. Some serious difficulties, however, took place in a short time between these proprietors and the British authorities; and after some negotiations upon the subject, they, in 1702, surrendered to the crown all the powers of government, retaining their rights of private property.

The defendant in error claims the land covered with water, mentioned in the declaration, by virtue of a survey made in 1834, under the authority of the proprietors, and duly recorded in the proper office. And, if they were authorized to make this grant, he is entitled to the premises as owner of the soil, and has an exclusive right to the fishery in question. The plaintiff in error also claims an exclusive right to take oysters in the same place; and derives his title under the law of the state of New Jersey, passed in 1824, and a supplement thereto, passed in the same year.

The point in dispute between the parties,

-1-