Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
Arthur Schultz appeals from the granting of a riparian deed, over his objection, to respondent Robert Wilson by the State of New Jersey, acting through respondent Division of Planning and Development, Department of Conservation and Economic Development. R.R. 4:88-8.
On November 9, 1954 Wilson, as owner of property on West Front Street, Keyport, New Jersey, applied pursuant to R.S. 12:3-10 for a riparian grant of lands under tidewater on Luppatatong Creek adjoining and to the rear of his property. Schultz having filed an objection, the Navigation Committee of the Council of the Division of Planning and Development held a hearing. Schultz claimed that he had paramount title to the bed of the creek by reason of grants made to John Bowne, his predecessor in title and an early settler in the area, by certain chief sachems, on behalf of themselves and all other Indians concerned, in 1676 and 1679. Bowne's title was further secured by grants from the Board of Proprietors of East Jersey in 1676 and 1687.
Following the hearing the Commissioner of the Department of Conservation and Economic Development requested a legal opinion of the Attorney-General, who in due course advised that the Indian deeds had no validity, that title to lands under tidewater remained in the State of New Jersey as sovereign, unless granted in accordance with the law, and that the Council could disregard Schultz' objection and proceed with the merits of the application.
The riparian grant was executed January 30, 1956 and recorded. By it the State conveyed to Wilson all of its right, title and interest "in and to the lands now or formerly flowed by tidewater at mean high tide of Luppatatong Creek or its tributaries," lying within the boundaries of a tract described by metes and bounds and measuring 123 feet in width and 38 feet in depth, facing on West Front Street. The part of the grant here under challenge is to the rear of Wilson's property and extends 10 to 12 feet outward from a former bulkhead line in the bed of the creek. The deed fixes an exterior pierhead and bulkhead line at the outer limit of the riparian grant. The grant was made subject to the usual limitation that if Wilson were not the owner of the adjoining upland, the conveyance was to be void. Further, the grantee was barred from filling in the lands under tidewater, erecting any pier or structure, or appropriating the lands to his own exclusive use, without a permit for that purpose issued by the Division of Planning and Development.
On this appeal Schultz abandons his claim of paramount title deriving from Indian deeds. Such a contention could not have been supported. Whatever we may think at this late date of the moral quality of the principle, it has long been established that the Indians had only a possessory right to the lands they occupied. They were mere temporary occupants of the soil, and the absolute rights of property and dominion belonged to the European nation which first discovered the particular portion of this country where the Indian lands were located. The legal rights of the European discoverers were succeeded to by the states or by the general government. Martin v. Waddell's Lessee , 16 Pet. 367, 409, 41 U.S. 367, 409, 10 L. Ed. 997 (1842) (Taney, C.J.), also reported in 18 N.J.L. 495; 42 C.J.S. Indians § 28, p. 688 (1944). Interesting in this connection is the act of December 13, 1703 "regulating the Purchasing of Land from the Indians," which provided that no person could
buy lands from the Indians unless he had a right of propriety and obtained a license. Allinson, Acts of the General Assembly of the Province of New Jersey 1702-1776, p. 1 (1776); and see Fisher, New Jersey as a Royal Province, pp. 185-186 (1911).
The grants by the Board of Proprietors of East Jersey were also without legal efficacy. The proprietors never had, either before or after their surrender of the powers of government to Queen Anne in 1702, any right or interest in, or power over the soil covered by tidewaters within the limits of this State. This was settled in the early cases of Arnold v. Mundy , 6 N.J.L. 1 (Sup. Ct. 1821); Martin v. Waddell's Lessee , above; Bell v. Gough , 23 N.J.L. 624 (E. & A. 1852), and Stevens v. Paterson & Newark R. Co. , 34 N.J.L. 532 (E. & A. 1870) (Beasley, C.J.).
Luppatatong Creek flows into Raritan Bay not far from the premises in question, and concededly is subject to tidal ebb and flow. Schultz now argues that the State had no title to the bed of the creek which it could convey. He claims that the test, as determined by our decisions, is that before there can be a riparian grant by the State of land under tidewater, the waters must not only be tidal, but navigable as well. Appellant did not argue or present evidence on the issue of navigability at the hearing before the Navigation Committee. We do not stay to consider whether the creek is in fact navigable -- it is about 4 1/2 feet deep at high water and 1 1/2 feet at low tide and apparently adequate for navigation by the type of flat-bottom boat commonly used on the tidal bays and streams of New Jersey -- for we consider the test which appellant would have us adopt as contrary to the applicable law of this State.
No purpose would be served by referring to the generalized expositions of textwriters and digests, unless it were by way of passing reference. (Among the authorities are the
English texts, Coulson and Forbes, Waters and Land Drainage (6 th ed. 1952), and Moore, History and Law of the Foreshore (3 d ed. 1888); the American works, Farnham, Waters and Water Rights (1904), and Gould, Law of Waters (3 d ed. 1900); and see Boyer, Waterways of New Jersey (1915), for a history of riparian ownership and control in New Jersey.) Our problem must be resolved in the light of the principles which emerge from the considerable collection of New Jersey cases dealing with lands under water within the boundaries of the State, and the private and public rights therein. The decisions begin with Arnold v. Mundy , above, in 1821, and proceed down to the very recent opinion of our Supreme Court in Bailey v. Council of the Division of Planning and Development , 22 N.J. 366, decided in 1956.
Appellant relies chiefly on Glover v. Powell , 10 N.J. Eq. 211 (Ch. 1854), of which more anon; on distinguishable language in several other New Jersey cases, and on general statements by textwriters and law cyclopedias that are without pertinence.
Historically, the title of the State, as sovereign, to submerged lands under tidewaters has long been beyond dispute. There is no need here to trace in detail the by now familiar sequence of the letters patent of Charles II in 1664, granting his brother James, Duke of York, a large tract of land in North America, including what is now New Jersey; the latter's lease and release of the Province of Nova Caesarea (New Jersey) to Berkeley and Carteret; the Quintipartite Deed of 1676 which divided the province into East and West Jersey; the subsequent instruments investing the proprietors with the rights of property and government originally conferred on the Duke of York; their surrender of the powers of government to Queen Anne in 1702, and all the steps intermediate to these. See Leaming and Spicer, Grants, Concessions and Original Constitutions of the Province of New Jersey (1758), and Smith, History of the Colony of Nova-Caesaria, or New Jersey (2 d ed. 1877), passim. Nor need we presently review the meaning and
legal effect of these instruments and historical events in relation to the problem we deal with. The history of ownership of riparian lands in this State from the time of the English Crown has already been traced, and at some length, in a number of leading cases: Arnold v. Mundy , 6 N.J.L. 1 (Sup. Ct. 1821); Martin v. Waddell's Lessee , 16 Pet. 367, 41 U.S. 367, 10 L. Ed. 997 (1842); Gough v. Bell , 21 N.J.L. 156 (Sup. Ct. 1847), 22 N.J.L. 441 (Sup. Ct. 1850), affirmed sub. nom. Bell v. Gough , 23 N.J.L. 624 (E. & A. 1852); Stevens v. Paterson & Newark R. Co. , 34 N.J.L. 532 (E. & A. 1870); Attorney-General v. Delaware and Bound Brook R.R. Co. , 27 N.J. Eq. 1 (Ch. 1876), affirmed 27 N.J. Eq. 631 (E. & A. 1876); and Ross v. Mayor & Council of Borough of Edgewater , 115 N.J.L. 477 (Sup. Ct. 1935), affirmed 116 N.J.L. 447 (E. & A. 1936), certiorari denied 299 U.S. 543, 57 S. Ct. 37, 81 L. Ed. 400 (1936).
There can be no question of the right of the Legislature, or the Council of the Division of Planning and Development, acting under a delegation of legislative powers, to convey the lands under tidal waters of Luppatatong Creek to Wilson. The Legislature has the power, absolute and unlimited, to regulate, abridge or vacate public rights in tidal waters except in the field reserved to Congress by the Federal Constitution. Stevens v. Paterson & Newark R. Co. , above, 34 N.J.L. , at pages 549, 550, 552; City of Hoboken v. Pennsylvania R. Co. , 124 U.S. 656, 688, 690, 8 S. Ct. 643, 31 L. Ed. 543 (1888); Ross v. Mayor and Council of Borough of Edgewater , above, 115 N.J.L. , at page 484; Bailey v. Driscoll , 19 N.J. 363, 367 (1955), reversing in part 34 N.J. Super. 228 (App. Div. 1955).
We are not here dealing with the public right of fishery, as in Arnold v. Mundy and Martin v. Waddell's Lessee , above; or the common right of navigation, considered in such cases as Attorney-General ex rel. Pattee v. Stevens , 1 N.J. Eq. 369 (Ch. 1831), and Glover v. Powell , 10 N.J. Eq. 211 (Ch. 1854); or the right to ...