is included the tract of 564 acres embraced in the Loss map, and formerly the property of Col. Stevens. (9) That at the time of said transfer by Edwin A. Stevens and others to the said Hoboken Company the land for which these suits were brought by the city of Hoboken was under water, and since the date of said conveyance has been filled up, occupied, and possessed by said company or their grantees, and that all of said land under water was in front of and adjoining the real estate purchased by the company; that since the time of said purchase the company, or their grantees, have at various times reclaimed the land from the water, and have constructed thereon wharves, harbors, piers, and slips, and other structures requisite or proper for commercial purposes, and have been in the exclusive possession, occupancy, and enjoyment of the same from the time of such reclamation. (10) That the city of Hoboken was incorporated by the legislature of the state of New Jersey by an act approved March 28, 1855, with the powers and privileges therein granted, prout the same, and that the territorial limits of the said city embraced all the lands shown on the Loss map, and also a large tract of real estate adjoining the same on the west, extending to the west line of the lands of the late John G. Costar, deceased, and that previous to said incorporation its territory embraced (a portion of) one of the townships of the county of Hudson. (11) That the city of Hoboken never by ordinance recognized River street south of Third street, and only recognized its existence as far south as Third street by the ordinance of January 9, 1858; that Newark, First, and Second streets were never recognized by ordinance east of Hudson street prior to the ordinance of October 5, 1875, which ordinance provided that said streets should extend to high-water mark on the Hudson river; and that Third street was never recognized east of River street prior to the said ordinance of October 5, 1875, which ordinance also provided that the said street should extend to high-water mark of said river. (12) That no proceedings have been taken by the city to condemn the lands in controversy, or to take them for the purposes of a public street, except the passage of the ordinance of 1875 and the bringing of these actions of ejectment claiming the dedication of the lands as a public street under the Loss map of 1804. (13) That the Hoboken Land & Improvement Company, in consideration of $68,583.33, executed a deed to the Camden & Amboy Railroad Company, dated December 1, 1864, conveying a tract of land at the foot or easterly end of Second street, within the boundaries of which are embraced the premises that the plaintiff seeks to recover in the two suits against the Pennsylvania Railroad Company, and that the Camden & Amboy Railroad Company, and its grantees or lessees, have been in the possession of said lands since said conveyance. (14) That the legislature of the state of New Jersey, by a law approved March 31, 1869, authorized the united railroad companies of New Jersey to reclaim and erect wharves and other improvements in front of any lands then owned by them, or held in trust for them, on any tide-waters of the state, and, when so reclaimed and improved, to have, hold, possess, and enjoy the same as the owners thereof, subject only to the provisions that they should pay for such grant unto the treasury of the state the sum of $20,000 before the 1st day of July next ensuing, and should also file in the office of the secretary of the state a map and description of the lands under water in front of the upland designated in said act; that the sum of $20,000 was paid by the companies within the time limited, and the map and description filed as required. Exhibit D 9. (15) That an act of the legislature of New Jersey, supplementary to the act to ascertain the rights of the state and of riparian owners in the lands lying under water, approved April 11, 1864, was passed on the 31st of March, 1869; that by a proviso to the third section of the same all previous grants of lands under water, or right to reclaim, made directly by legislative act, or grant or license power or authority so made or given, to purchase, fill up, occupy, possess, and enjoy lands covered with water fronting or adjoining lands owned by the

6

corporation, grantee, or licensee named in the legislative act mentioned, its, his, or their representatives, grantees, or assigns,' are excepted from the operation of said supplement; that in the fourth section of said act the riparian commissioners are authorized, for the consideration therein mentioned, to execute and deliver in the name of the state of New Jersey, to all persons coming within the terms of said proviso, a paper capable of being acknowledged and recorded, conveying and confirming to them the title to all lands, whether then under water or not, which were held by previous legislative grant or lease, either in the hands of the grantees or lessees or by their representatives or assigns. (16) That under the provisions of said act the state of New Jersey conveyed to the Hoboken Land & Improvement Company, by deed dated December 21, 1869, for the consideration of $35,500, so much of the land and premises purchased of Edwin A. Stevens and others as was originally below the high-water mark of the river, and all lands under water in front of the same, and as was situate between Second and Fourth streets, if extended, and in front of Third street, if extended, to the exterior bulk-head and pier lines established by the riparian commissioners, and embracing the premises claimed in the several suits against the Hamburg-American Steam-Packet Company and the North-German Lloyd Steam-Ship Company, and that the said company and its grantees have been in the possession of said premises since the date of said conveyance. (17) That on the 26th of September, 1866, the Hoboken Land & Improvement Company and Edwin A. Stevens executed a conveyance to the New York Floating Dry-Dock Company for certain lots and tracts of land, above and under water, in front of and to the east of First street, and the northerly half of Newark street, if extended, embracing the premises claimed in the suits against Adolph E. Schmidt and others; that the said the New York Floating Dry-Dock Company transferred the same to Frederick Kuhne, trustee of the German Transatlantic Steam Navigation Company, by deed dated August 31, 1872, the said Kuhne, on the same day, executing a formal declaration of trust to the said company; that on the 9th of November, 1872, the state of New Jersey, in consideration of $22,625, granted and conveyed to said Kuhne, trustee as aforesaid, all the right and title of said state in and to the land and premises described in the above-recited deed from the Hoboken Land & Improvement Company to the New York Floating Dry-Dock Company, and that the same has been in the possession of the said respective grantees from the date of the respective conveyances. (18) That on the 23d of April, 1872, the Hoboken Land & Improvement Company made a conveyance to the North-German Lloyd Steam-Ship Company of a lot of land situate in front of and to the east of Third street, if continued to the Hudson river, and embracing the premises claimed in the several suits against the North-German Lloyd Steam-Ship Company and the HamburgAmerican Packet Company, and the premises have been in the possession of 3aid company and its lessees since the date of said conveyance. (19) That River street, as shown on the Loss map, cannot be extended to reach the navigable waters of the Hudson river without crossing land outside of that shown on said map, and without crossing land which, prior to April 28, 1874, belonged to the state of New Jersey, and which the said state, by deed of that date, leased in perpetuity to the Morris & Essex Railroad Company. See Exhibit D 8."

Upon these facts the circuit court founded its conclusions of law, as follows: "(1) That neither Col. John Stevens, in 1804, nor at any time thereafter, nor his grantees of any portion of the land delineated on the Loss map, had power to dedicate to the public use as a highway any part of the land or water adjoining said lands and lying east of and below high-water mark of the river as it then existed, and that said land under water belonged to the state of New Jersey, and could only be dedicated or subjected to an easement by the state and its grantees. (2) That the charter granted by the state of

New Jersey to the Hoboken Land & Improvement Company was a contract between the state and the corporators; that the fourth section expressly authorized the corporation to fill up all lands covered with water fronting and adjoining the lands they might acquire, and to construct thereon wharves, harbors, piers, and slips, and all other structures requisite or proper for commercial or shipping purposes, and that the only restriction imposed upon the corporation by the act was that it should not fill up or build any dock, pier, or wharf upon any land under water immediately in front of the lands of any other person or persons owning down to the water;' and that neither the plaintiff in these suits, nor the state of New Jersey, nor the public, was another person owning down to the water,' within the legal meaning and intent of said charter or contract. (3) That the provisions of the charter of incorporation of the plaintiff, so far as they are applicable to the subject of the pending controversy, negative the plaintiff's construction of its powers under said charter, in that--First, it withholds from the corporate authorities any right or privilege as shore or riparian owners; second, while it vests the council with power to take any lands that it may judge necessary for the opening of Third street, it requires payment to be made to the owner for the fair value of the lands so taken, and of the improvements thereon, and the damage done to any district, lot, or parcel or tenement, by taking any part of it for such purposes; and, third, it expressly provides that nothing contained in the charter shall be so construed as to interfere with or impair the vested rights and privileges of any person or corporation whatever, except as to property taken for public use, upon compensation as provided for in the act. (4) that the state of New Jersey, being the absolute owner of the land under water below high-water mark, which was the limit of the Stevens dedication of streets, had the right to fill in and make land as far as its ownership extended; that the soil thus acquired and redeemed from the water was in no sense alluvion or accretion, which became the property of the shore-owner, but remained the land of the state or its grantees, and that no right or authority existed in the shore-owner, by dedicating the public streets to the limits of its ownership, to charge such newly-made land with the burden of an easement over it. (5) That, as to the two several suits against the Pennsylvania Railroad Company, the locus in quo is embraced within the descriptions of the deed from the Hoboken Land & Improvement Company to the Camden & Amboy Railroad Company, dated December 6, 1864, and also within the grant of the state to the united railroad companies of New Jersey of the date of March 31, 1869, wherein the said companies were authorized, for the consideration therein expressed and afterwards paid, to reclaim and erect wharves and other improvements in front of any lands owned by or held in trust for them,' subject to no restriction other than the regulations as to solid filling and pier lines before recommended by the riparian commissioners, and that the defendant, who is the lessee of the said companies, is entitled to hold said premises against the claim of the plaintiff, unless compensation be first made for the taking thereof according to law. (6) That, as to the two several suits against Adolph E. Schmidt and others the locus in quo is covered by the description of the deed from the Hoboken Land & Improvement Company to the New York Floating Dry-Dock Company, dated August 31, 1872, and also within the grant from the state by its commissioners, under the provisions of the fourth section of the supplement to the act entitled 'An act to ascertain the rights of the state and of the riparian owners,' etc., to Frederick Kuhne, trustee, etc., under whom the defendants hold by mesne conveyance, and that they are entitled to retain the possession and ownership of said premises against the plaintiff until the same is condemned and payment therefor made according to law. (7) That, as to the several suits against the Hamburg-American Steam-Packet Company and the North-German Lloyd Steam-Ship Company, the locus in quo is within the grant from the state of New Jersey to the

Hoboken Land & Improvement Company of the date of December 21, 1869, and also of the deed of conveyance from the Hoboken Land & Improvement Company to the North-German Lloyd Steam-Ship Company dated April 23, 1872, and that the said defendants are entitled to hold the said premises clear and discharged of any right or claim therein or thereto by said plaintiff. (8) That none of the land and premises claimed by the plaintiff in either of the said several suits are subject to an easement in consequence of the dedication of public streets made by Col. John Stevens in the Loss map of 1804. (9) That the several defendants in the several suits should be adjudged not guilty."

T. N. McCarter and James F. Minturn, for plaintiff in error. J. D. Bedle, J. B. Vredenburg, and Barker Gummere, for Pennsylvania R. Co. bett, for the other defendants in error.

Leon Ab

Mr. Justice MATTHEWS, after stating the facts as above, delivered the opinion of the court.

In the year 1873 the court of errors and appeals of New Jersey decided the case of Improvement Co. v. Mayor, etc., 36 N. J. Law, 540. It was an action of ejectment for the recovery of the possession of a strip of land, constituting the extension of Fourth street, as laid out on the Loss map, over lands below the original high-water mark, reclaimed by the plaintiff in error in that suit, continued to the new water front. The unanimous judgment of that court affirmed the right of the city of Hoboken to the premises in dispute, being the extension of that street as a public highway. The foundation of that judgment is the dedication, according to the Loss map, of the streets delineated upon it as extending to the line of high-water mark at that date, and the nature of the title acquired by the Hoboken Land & Improvement Company, under the terms of their charter, to the land made by filling in in front of the original high-water mark, upon and across which it was proposed to extend the street so as to secure access in behalf of the public to the stream of the river. It is argued that, as the present defendants claim title, through the Hoboken Land & Improvement Company, to premises similarly situated and equally affected by the original dedication, the judgment of the court of errors and appeals of New Jersey in that case conclusively establishes the law applicable to the present, and requires a reversal of the judgments of the circuit court of the United States. It becomes necessary, therefore, at the outset, to ascertain and define the terms and scope of that judgment. In that case the court said, (p. 546:) "The title to the soil between the high-water line, as shown on Loss' map, and the present high-water line was originally in the state. It became the property of the defendants by reclamation under the powers contained in their charter. The contention was that it was not competent for Col. Stevens to impress upon lands, the property of the state, a servitude such as the plaintiffs are seeking to have them appropriated to, and that when the defendants acquire title under legislative permission, they were entitled to hold such lands unimpaired by the servitude imposed upon the upland. The first branch of this proposition is conceded. But whether it will be available to his grantees to defeat the present claim of the city will depend upon considerations incident to the nature and effect of the original dedication. The street, as dedicated, extended to the high-water mark as it then was. There is no street shown on the map, or in fact along the river, in which Fourth street might terminate. River street, which is the first street crossing Fourth street parallel with the river, is laid down on the map at a distance of about 75 feet from the high-water line as it appears on the Loss map. The location of Fourth street, with its terminus at the water, demonstrates conclusively that its purpose was to provide a means of access for the public to the navigable waters, and such was the scope and purpose of the dedication." The court then refers to the case of New Orleans v.

U. S., 10 Pet. 717, as showing that, according to the recognized law concerning dedications to public use, a grant of land, bounded on a stream which has gradually changed its course by alluvial formations, extends to the new boundaries, including the accumulated soil, and that, on the same principle, it had been held in that state, in the case of Jersey City v. Canal, 12 N. J. Eq. 548, that a dedicated street terminating at the waters of a navigable river is continued to the new water front obtained by filling in in front on the shore by the owner of the land over which the street was dedicated; and to the same point the court cites the cases of People v. Lambier, 5 Denio, 9, and Barclay v. Howell's Lessees, 6 Pet. 498. The learned judge, delivering the opinion of the New Jersey court of errors and appeals, continues thus, (p. 548:) "In my judgment, these cases declare the law correctly on this subject. The essence of the gift is the means of access to the public waters of the river, the advantage of which induced the growth of the city by reason of its adjacency and connection with the important navigable waters of the Hudson, which gave a peculiar commercial value to the lots put in the market by the dedication, which can only be preserved by maintaining unbroken the connection of the streets with the navigable river. Any obstructions of that access would not only derogate from the effect of the gift, but would also be a public nuisance." Referring then to the title claimed by the Hoboken Land & Improvement Company, adverse to the application of this presumptive right growing out of the original dedication on behalf of the public, the court say, (p. 549:) The legislature alone has the power to release the dedicated lands, and discharge the public servitude when it once has attached. Extinguishment by legislative action, it is insisted, has been effected as to a part of the premises in dispute by the fourth section of the defendants' act of incorporation. The argument was that the land below high water being the property of the state, and both the easement and the title being under legislative control, the extinguishment of the former, by a necessary implication, resulted from the grant of the latter. I am unwilling to concur in this construction of the statute. The grant to the defendants is not of lands of the state in express and definite terms. The right conferred is a mere privilege of reclamation and appropriation to private uses. Its exercise is expressly limited to lands covered with water in front of and adjoining lands that should be owned by the corporation. The proviso annexed to the grant shows clearly the legislative intent that the rights of others owning to the water should not be interfered with without express consent." Referring then to certain authorities as justifying this construction, the opinion proceeds, (p. 551:) "It is not necessary on the present occasion to express any opinion as to whether the defendants could, under their charter, have filled in in front of streets terminating at the water as against the public authorities resisting the execution of the work. The cases above cited are referred to to show the strictness of the construction made of statutes granting privileges of this kind to private persons. * * * The defendants' act of incorporation would probably relieve the defendants after the work was executed from the consequences of an unlawful encroachment on public lands in front of the streets, and of a nuisance in the obstruction of navigation; but it cannot affect the public easement of access to the navigable waters which existed before the act was passed. That public right is entirely distinct in its essential qualities from the title of the state in lands under tide-waters. The former inheres in the state in its sovereign capacity. The latter is strictly proprietary. A grant of the proprietary title will never operate as a release or extinguishment of a sovereign right not necessarily included within the scope of the grant. State v. Haight, 36 N. J. Law, 471. The grant to the defendants comprised the valuable privilege of acquiring title to lands under tide-waters along their entire frontage on the river. The public easement is legally consistent with the title to the soil in a private owner, and the legislative intent to vest the proprietary