
    John D. Glover and others vs. Alexander A. Powell and others.
    Little Timber creek is a small creek, emptying into the river Delaware about five miles below the city of Camden. The tide, when not obstructed, ebbs and flows about two miles up the creek. Some time in, or previous to the year 1760, the owners of the meadow land adjacent to the creek, for the purpose of improving their meadows by the exclusion of the tide water,built a dam of about a quarter of a mile wide at the mouth of the creek, with sluices and other fixtures. In November, 1760, the legislature, of the then colony of New Jersey, passed an act to enable the owners of meadows along the creek to support and maintain this dam and fixtures erected for the aforesaid purpose. The act, after reciting the erection of the dam and its purposes, enacted that the said bank, dam, and all other waterworks already erected, or which should thereafter be found necessary to be erected, for the more effectual preventing the tide from overflowing the meadows lying on the said creek, should be erected, supported, and maintained at the equal expense of all the owners and possessors of the meadows, that each of the said owners or possessors, then or thereafter, might hold on the said creek between certain points in the act designated.
    It further enacts, that the natural watercourse of the creek should bekep clear, and specified the manner in which it should be done. It then pro vides for the election, by all the land owners yearly, of two managers, and empowers these managers to assess the owners and possessors of the meadows in such sum or sums of moneyas shall be by them, or the survivor of them, deemed necessary for the supporting, repairing, and maintaining the bank, dam, and other water works. This act was accepted by the owners of the meadow. Managers were elected under it, and under and by virtue of its provisions, the bank, dam, and water works have been repaired and maintained to this day. A large amount had been expended on the works.
    The legislature, on the 17th of March, 1854, passed an act declaring Little Timber creek to be a public highway, in all respects as fully as it was before the said creek was dammed at its mouth ; and the township committee is authorized and required, at the expense of the township, to remove the dam, and thereby open the navigation of the creek. The bill was filed to enjoin the township committee from discharging the duty imposed upon them by this act.
    Held, that the legislature had the right to authorize the obstruction of the creek, there being nothing in the case to show that its navigation was demanded by the public interest.
    It does not follow that any creek, or rivulet, in which the tide ebbs and flows, and which may be navigated at certain tides by small boats, is to be dignified with the appellation of an arm of the sea, or navigable river, and as such is beyond the jurisdiction or control of the legislature, except as a public highway.
    
      The legislature is the sole judge and arbiter to determine when such streams shall be considered as navigable rivers, and be maintained and protected as such.
    The act of 1760 did not authorize the owners of the meadows simply to continue the dam, but it gave the authority of the state to compel its con tinuance.
    The act of the legislature, passed the 17th of March, 1854, which authorizes and requires the township committee to remove the dam, is in violation of the constitution of the United States, which declares that no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. It was a virtual repeal of the act of 1760, under the provisions of which rights had become vested, and valuable property had been acquired. It is in violation of good faith. It impairs the obligation of a contract.
    The act of 1854 was also repugnant to the constitution of the state of New Jersey, as taking private property for public use without just compensation.
    A partial destruction or diminution of value is the taking of private property.
    The bill alleges, that the complainants are the owners in severalty and in fee simple of about 128.63 acres of meadow land, situate in the township of Union, in the county of Camden, on both sides of a small stream of water called. Little Timber creek, emptying into the river Delaware, five miles below Camden city; that the said meadow was reclaimed from the tide waters of the Delaware some time in, or previous to the year 1760, by the owners of the said meadows, who, at their own expense, erected a dam, about a quarter of a mile in length, at the mouth of the creek, with sluices and other water works in the dam, so as to exclude the tide from the meadow, and drain the water therefrom, and by digging ditches, and have greatly improved the meadow; that the expense of such dam and improvements have not cost less than $8000; that to revive the said dam would wholly destroy the value of the meadow and improvements ; that the said creek is about 125 feet wide at its mouth; that it gradually becomes narrower as you pass up it; that if the dam should be removed, the tide would flow up about two miles; that its depth varies, at some places it would probably be entirely bare at low water, and at other places five or six feet in depth, and that it never was or could have been, and would not now, if the said dam should be removed, be of any material importance for purposes of navigation; that the complainants are unable to state by what authority the dam and water works were originally erected, but that, on the 20th day of November, 1760, the legislature of the colony of New Jersey passed an act entitled, “An act to enable the owners and possessors of meadow lying in Little Timber creek, in the county of Gloucester, to support and maintain a certain bank, dam, and other water works lately erected across said creek, in order to prevent the tide from overflowing the same, and to keep the former watercourse of said creek open and clearthat the said meadow company, so created by said act was duly organized, and is still kept up by the owners of said meadow', and that by taxes levied from time to time upon the said owners and their lands, under the said act, the said dam and water works have ever since been maintained and the watercourse kept open and clear; that the said dam and water works are the absolute property of the complainants, and that it is not competent for the legislature of New' Jersey to require or authorize the said works to be removed without providing compensation; that the legislature of New Jersey, at its last session, passed an act entitled “ An act to restore the navigation of Little Timber creek, in the township of Union, in the county of Camden, as follows, to wit:
    “ 1. Be it enacted by the Senate and General Assembly of the State of New Jersey, that Little Timber creek is hereby declared to be a public highway, in all respects as fully as it was before the said creek was dammed at the mouth or entrance thereof, into the river Delaware, and the township committee of said township are hereby authorized and required, at the expense of said township, to remove the said dam, and thereby open the navigation of the said Little Timber creek, on the first day of September, 1854.”
    
      The bill alleges that the said act is unconstitutional and void, because it does not make and provide compensation to the complainants for the injury they will sustain by the removal of the dam ; that the defendants, who are the said committee, intend, on the first day of September, to remove the dam and water works. The bill prays that the defendants and their successors in office may be restrained from moving the said dam, or any part thereof, and thereby, or otherwise, opening the navigation of said Little Timber creek.
    The following is the act of 1760, a copy of which is annexed to the said bill of complaint:
    “ An act to enable the owners and possessors of meadows lying on Little Timber creek, in the county of Gloucester, to support and maintain a certain bank, dam, and other water works, lately erected across the said creek, in order to prevent the tide from overflowing the same, and to keep the former watercourse of said creek open and clear.
    “Whereas, the several owners and possessors of the meadows lying on both sides of Little Timber creek, in the county of Gloucester, have lately (by the mutual consent of all the said owners and possessors) erected a certain bank, dam, and other water works across the aforesaid creek, from the fast land in the line between the lands of Samuel Harrison and Simon Sparks, on the north side of said creek, to the fast land of Joseph Harrison, on the south side of the same, by which means they have improved a considerable quantity of rough swamp into good mowing meadow, which is likely to become very advantageous to the said owners and possessors, provided the said bank or dam and other water works can be well and sufficiently supported and maintained, so as to prevent the tide from overflowing the same, and the former watercourse of said creek kept open and clear — therefore,
    “ Be it enacted, by the governor, council, and general assembly, and it is hereby enacted by the authority of the same, that from and after the publication hereof, the said bank, dam, and all other water works already erected, or that shall or may at any time or times hereafter be found necessary to be erected, for the more effectual preventing the tide from overflowing the meadows lying on the aforesaid creek, shall be erected, supported, and maintained at the equal expense of all the owners and possessors of the same, in proportion to the quantity of meadow that each of the said owners or possessors, now or hereafter, may hold on the said creek, between the aforesaid dam and a dam called William Harrison’s dam, near the head of the aforesaid creek.
    “ And be it further enacted by the authority aforesaid, that the natural watercourse of the said creek, between the aforesaid dams, shall at all times hereafter be kept open and clear, so as to give the water a sufficient fall from off the meadows at the head of the same, in the same manner and proportion as aforesaid, and all the mud, grass, and other rubbish that shall be dragged from out of the same shall be equally divided, as near as conveniently may be, to each side of said creek, and to the end that the said bank, dam, and other water works may at all times hereafter be well and sufficiently supported and maintained, and the said watercourse kept open and clear.
    “ Be it further enacted by the authority aforesaid, that all the owners and possessors of the aforesaid meadows shall and may, at all times hereafter, on the first Tuesday in April yearly, meet and assemble at the town of Gloucester, and then and there, by plurality of voices of them so met, elect and choose two persons to be managers the ensuing year (until which time William Harrison, junior, and Thomas Bispham are hereby appointed managers), which said managers, or the survivor of them, in case one should happen to die within said year, shall have full power to assess the said owners or possessors, pursuant to the directions of this act, in such sum or sums of money as shall he by them, or the survivor of them, thought necessary for the supporting, repairing, and maintaining the aid bank, dam, and other water works, and for keeping he said watercourse open and clear as aforesaid during he said year; and if any of the said owners or possessors shall neglect or refuse to pay the said sum or sums of money that shall or may, from time to time, be assessed on him or them for the space of twenty days next after the same shall have been demanded, it shall and may be lawful for the said managers, or the survivors of them, to sue all and every such person or persons, in their or his own names or name, for the respective sum or sums of money he, she, or they were assessed at, in an action of debt, if five pounds or under, before any one justice of the peace within said county, if above, in any court of record where the same may be cognizable, and give the said assessment in evidence, and the said court or justice of the peace are hereby empowered to give judgment and execution for the same, with costs of suit; and it shall or may be lawful for the said managers or manager, at all times hereafter, to dig Vrnie or sand from out of the hills adjoining to either end of the aforesaid bank, for the raising and repairing the same.
    “ And be it further enacted by the authority aforesaid, that if the owners or possessors aforesaid shall neglect to meet on the first Tuesday in April yearly, as aforesaid, to choose managers, as aforesaid, that then and in such case the managers chosen for the preceding year, or the survivor of them, shall be continued in the said office the ensuing year, and so continued from year to year until the said owners or possessors shall meet and elect others in their room, and shall have the same power and authority, to all intents and purposes, as if the said owners and possessors had met and elected them agreeably to the directions of this act.
    “ And be it further enacted by the authority aforesaid, that the said managers shall yearly account to the said owners and possessors, and produce fair accounts and receipts for all moneys by them received and expended bj virtue of this act, and shall deliver the balance of the moneys remaining in their hands to the succeeding managers, first deducting thereout two shillings in the pound for all moneys by them, or either of them, expended foi the purposes aforesaid; and if the said managers, or either of them, shall neglect or refuse to pay the balance remaining in his or their hands to the succeeding managers, it shall and may be lawful for the said succeeding managers to sue for and recover the same, with costs of suit, in manner aforesaid.
    “ And be it further enacted by the authority aforesaid, that it shall and may be lawful for any tenant or tenants that now are or hereafter may be in possession of any part of the aforesaid meadows, to bring in Ids or their accounts of moneys paid or services performed, pursuant to the directions of this act, against his or their landlord or landlords, which shall be allowed out of his or their rent or rents; and where it shall happen, at any time or times hereafter, that the owners or possessors of any of the aforesaid meadows shall not reside on the same, nor in any other place within said county, nor no other person to represent him or them to pay the several sum or sums of money expressed thereon as aforesaid, that then it shall and may be lawful for the said managers, or the survivor of them, for the time being to rent out part of said meadows, or the whole, if necessary, for such a term as the rent thereof will amount to a sum sufficient to pay the said assessment or assessments as aforesaid, and no longer.”
    On filing the bill, the complainants applied to the Chancellor for an injunction. The Chancellor ordered a copy of the bill of complaint to be served on the defendants, and a rule to show cause, on a day and at a place therein named, why an injunction should, not issue.
    The defendants filed a joint and several answer.
    The answer alleges, that before the said dam was erected, the tide did flow up it for more than two miles, so that the said creek was, for that distance, navigable for scows, barges, shallops, and other flat bottomed vessels, of not less than twenty-five tons burthen, and of a depth for that distance of not less than five or six feet, and for the greater part of that distance of a much greater depth, and which, if said dam had not been erected, would have been of material importance for navigation; that they do not believe the said dam was erected by authority of law, but charge that the same dam and water works were erected by the unauthorized and illegal action of the owners of said meadow, for their own private purposes, without regard to the navigation, and were, when originally erected, and until sanctioned by the act of 1960, a purpresture and nuisance, liable to be at any time abated ; that, in 1960, the navigation of said creek being supposed to be of little immediate importance, the legislature passed the act referred to, subject to the provisos and conditions therein contained; that the said act made it the duty of the said land owners to deepen the watercourse of the creek between certain dams mentioned in the said act, and comprising the navigable part of said creek, open and clear, so as to give the water a sufficient fall from off the meadows at the head of the same, which condition and provision of said act was essentially necessary, as well as to preserve the channel of said creek for future use for navigation, as by maintaining the drainage of said meadows, to prevent the water from becoming stagnant and injurious to the health of the adjacent country; that the said act gave no right of property, absolute or otherwise, as against the public and the then colony of New Jersey, to the said owners of said meadows, dam and water works, and in and to the bed of the said creek, but was simply a license or toleration of a nuisance, and authorized the continuance of said dam for the purpose of draining the said meadows during the pleasure of the said legislature, the said license being liable to revocation whenever the public interest required it.
    
      The answer alleges, that the natural watercourse of said creek has not been kept open and clear according to the terms of the act; that, in consequence of this neglect, the water has become stagnant, the meadows deteriorated in value, and the health of the inhabitants of the adjacent country, and more particularly of the city of Gloucester, has been greatly injured, and the said stagnant waters have become a nuisance highly injurious to the inhabitants ; that, in opinion of defendants, if the said dam were removed, the meadows would be improved by the deposits, &c.; that the said dam is so injurious to the health ■of the inhabitants as to require its abatement; that the settlement and opening of tlie country, and the increase of the population adjacent to the creek, making the navigation of increased importance, and the nuisance requiring the opening of the creek to the tide, the legislature, at its last session, passed the act recited in the hill of complaint. They admit that they are the township committee, and that, as such officers, and as agents of the legislature, they submit that the legislature have a right to direct the dam removed, &c.
    Counsel were heard on both sides.
    
      A. Browning and W. L. Payton, for the complainant, insisted—
    1st. That the Legislature have power and authority to authorize the damming of small navigable creeks. Wilson et al. v Blackbird Creek Marsh Co. 2 Peters 245; Cox v. State, 3 Blackford's R. 197; Sinnickson v. Johnson, 2 Harr. 152.
    That the power had been frequently exercised by the legislature. Leaming & Spicer, 554; Allison's Laws of N. Jersey, under word Marsh, fifty-two acts are found of this character. Gifford's Index, letter D.
    
    2d. The act of 1760 has the same force and effect as if it authorized the original erection of the dam. 2 Kent 616; 3 U. S. Dig. 244, letter Principal and Agent, § 273-4-5.
    3d. The power in the state is based upon the principle. that in the state is vested the right of property in the bed of the river. Angell on Tide Waters 20-22. The dam is the private property of the individuals who erected it.
    4th. The act is unconstitutional. Art. 1, § 16. of the Constitution of N. Jersey declares private property shall not be taken for public use without just compensation. And again, Art. 4, § 7-9, individuals or private corporations shall not be authorized to take private property for public use without just compensation first made to the owners.
    5th. Tested rights of property acquired by virtue of a statute cannot be divested by repeal of the statute. Benson et al. v. The Mayor, &c., of N. York et al. 10; Barb. 223.
    6th. Where a license is executed, and the licensee has acquired rights, the license cannot be revoked, so as to divest those rights without compensation. 7 U. S. Dig., License, 346.
    They also cited 2 Harr. 314; 3 Ib. 200; Angell on Watercourses 100; 1 Conn. 382; 1 Baldw. 205; 2 J. C. R. 162; 4 W. C. C. R. 601.
    
      T. P. Carpenter and J. F. Randolph, for defendants, contra,
    cited Hargrave's Tracts 8, 9; Woolrych on Watercourses 40; Angell on Tide Waters 80-89; Arundell v. McCullough, 10 Mass. 70; Saxton 380; People v. Saratoga Railroad Co., 15 Wend. 135; 2 Black. Com. 347; 2 Zab. 647; Charles River Bridge, 11 Peters 544; Providence Bank v. Billings, 4 Peters 514; Chitty’s Prerogative 391; 15 Vin. 94, License E., note; 6 Watts & Serg. 101; 9 Ib. 9; Rundle v. D. and R. C. Co., 1 Wallace 275; same case, 4 How. R. 80; 13 Conn. 87; 2 Am. L. Cas. 506; 11 Metc. 55; 2 Denio 461; 1 G. C. R. 192; 1 Waterman Eden on Ju. 138, note 1.
   The Chancellor.

When this bill was filed, and an application made for an injunction, an order was made that a copy of the bill should he served on the defendants, and that they should show cause, on a day named, why an in junction should not issue. The defendants availed them selves of the opportunity, thus afforded them, of putting in their answer to the bill, and of being heard by counsel in opposition to the application.

The bill is purely an injunction bill, and asks that the defendants may be perpetually restrained from demolishing a dam, and water works connected with it, at the mouth of Little Timber creek, in the county of Camden.

Little Timber creek is a small creek emptying into the river Delaware, about five miles belown the city of Camden. The tide, when not obstructed, ebbs and flows about two miles up the creek. Some time in, or previous to the year’ 1160, the owners of the meadow land adjacent to the creek, for the purpose of improving their meadows by the exclusion of the tide water, built a dam of about a quarter of a mile wide at the mouth of the creek, with sluices and other fixtures.

In November, 1160, the legislature of the then colony of New Jersey, passed an act to enable the owners of meadows along the creek to support and maintain this dam and fixtures erected for the aforesaid purposes. The act, after reciting the erection of the dam and its purposes, enacted, that the said bank, dam, and all other water works already erected, or which should thereafter be found necessary to be erected for the more effectual preventing the tide from overflowing the meadows lying on the said creek, should be erected, supported, and maintained at the equal expense of all the owners and possessors of the meadows, that each of the said owners or possessors then, or thereafter, might hold on the said creek between certain points in the act designated. It further enacts, that the natural watercourse of the creek should be kept clear, and specified the manner in which it should be done. It then provides for the election, by all the land owners yearly, of two managers, and empowers these managers to assess the owners and possessors of the meadows in such sum or sums of money as shall be by them, or the survivoi of them, deemed necessary for the supporting, repairing, and maintaining the bank, dam, and other water works. It confers upon these managers power to collect the assessments by suit at law; or if the owner of the meadow assessed is absent, and beyond the reach of legal process, it provides for the leasing of his land, for the purpose of paying such assessment. There are other provisions of the act to carry out its important object, viz : to malee it compulsory on all meadow owners, whose lands are benefited and rendered more valuable by the dam and works, to contribute to repair and maintain them. This act was accepted by the owners of the meadow. Managers were elected under it, and under and by virtue of its provisions, the bank, dam, and water works have been repaired and maintained to this day. It is alleged that upwards of eight thousand dollars have been expended on the works; that the value of the meadows have thereby been greatly enhanced, and that the demolishing the dam would destroy the value of the meadows.

The legislature, at its last session, passed an act declaring Little Timber creek to be a public highway, in all respects as fully as it was before the said creek was damned at its mouth; and the township committee is authorized and required, at the expense of the township, to remove the dam, and thereby open the navigation of the creek, on the first day of September next. It is to enjoin the township committee of the township of Union, in the county of Camden, from discharging the duty imposed upon them by this act, that this bill is filed.

In the first place, it is insisted that the dam at the mouth of Little Timber creek destroys the navigation of a navigable stream where the tide ebbs and flows, and that the legislature have no right or power to authorize such an obstruction.

It appears, from the pleadings, that at certain states of the tide, this creek, if unobstructed, is navigable by small flat bottomed boats for at least two miles from its mouth. It does not appear that it ever has been used for the purposes of navigation. It has not been navigated since the year 1760. There is no allegation, on the part of the defendants, and nothing in the case to show that its navigation now is demanded by the public interest, or that, as a navigable stream, it would be any way beneficial to the public for the purposes of trade or agriculture. Admit, for the sake of the argument, that the state legislature has not the power permanently to obstruct or to destroy any navigable river within its territorial jurisdiction, it does not follow that any creek or rivulet, in which the tide ebbs and flows, and which may be used at certain tides by small boats for individual convenience, is to be dignified with the appellation of an arm of the sea or navigable river, and, as such, beyond the jurisdiction or control of the legislature, except as a public highway. Washed, as more than two-thirds of the borders of our state is, by the sea and by the rivers Hudson and Delaware, and their bays, the small creeks and rivers made by the force of the tides into the upland, in extent from a mile to six miles, are almost innumerable. At high tides, many of them may be navigated with small bottomed boats, and have been occasionally and with advantage, by individuals owning the adjacent meadows, for the transportation of grass, and, perhaps, other articles of merchandise. Many of them have been cut off from the sea, under the express sanction of the legislature, for the purpose of reclaiming and improving the adjacent meadow land any extending public roads, and the navigation of many more has been totally destroyed without any legal authority, and no complaint made by the public or by individuals on account of the manifest advantage resulting to the public from the obstruction. Most certainly a court of justice would not be justified in declaring that there is no authority in the state to determine when such streams shall be considered as navigable rivers, and be maintained and protected as such, or to determine when they may be obstructed, and theii navigation destroyed, for the public necessity or convenience. Tbe legislature must be tbe sole judge and arbiter for the public in tbis matter, and courts have no right to question tbis authority. In tbe exercise of powers conferred by tbe constitution upon tbe general government, questions may arise between it and tbe state governments; but no individual can question tbe legislation of tbe state in reference to what is called common rights of navigation, unless be can summon to bis aid, in some way, tbe legislation of tbe geneial government, which is paramount authority. Tbe authorities will, I think, be found to sustain tbis doctrine. Some will be found to go much further, and . to declare that tbe mere fact of tbe tide ebbing and flowing, and of tbe channel being such as to make tbe creek navigable at certain periods of tbe tide, does not entitle it to tbe protection of tbe court as a public navigable river. In the case of The King v. Montague and others, 4 B. &. C. 596, 10 E. C. L. 413, it was decided that a public right of navigation in a river or creek may be extinguished, either by an act of parliament or writ of ad guod damnum, and inquisition thereon, or under certain circumstances, by commissioners of sewers, or by natural causes, such as tbe recess of tbe sea or an accumulation of mud. &c. And where a public road obstructing a channel (once navigable) has existed for so long a time that tbe state of tbe channel at tbe time when tbe road was made cannot be proved, in favor of tbe existing state of things, it must be presumed that tbe right of navigation was extinguished in one of the modes before mentioned, and tbe road cannot be removed as a nuisance to that navigation. In tbe case of The Mayor of Lynn v. Turner, Cowp. 86, which was a suit brought against tbe corporation of Lynn for not repairing and cleansing a certain creek into which tbe tide of tbe sea was accustomed to flow and reflow, Lord Mansfield, on the argument, asked counsel, “How does it appear that this is a navigable river ? Tbe flowing and reflowing of the tide does not make it so, for there are many places into which, the tide flows which are not navigable rivers, and the place in question may be a creek in their own private estate.”

The flux and reflux of the tide is friona facie evidence of a navigable river, but it is not conclusive evidence. Miles v. Rose and mother, 5 Taunt. 706. The strength of this frima facie evidence, says Bagley, J., in the case of Rex v. Montague, arising from the flux and reflux of the tide, must depend upon the situation and nature of the channel. If it is a broad and deep channel, calculated for ihe purposes of commerce, it would be natural to conclude that it has been a public navigation; but .if it is a petty stream, navigable only at certain periods of the tide, and then only for a very short time and by very small boats, it is difficult to suppose that it ever has been a public navigable channel.

Commonwealth v. Breed, 4 Pick. 460. An information in the nature of a (quo wczrramto was filed by the direction of the legislature, alleging that Breed, the respondent, had erected and still maintains a bridge across a navigable arm of the sea, between Chelsea and Belle Island, whereof the passing of vessels is obstructed, and requiring him to answer by what authority he claims to keep up and maintain the bridge. The respondent set up a law of Massachusetts, passed in the year 1816, which authorized him to build a bridge convenient for the accommodation of the proprietors of Belle Island; that it should be built with a draw not less than fifteen feet wide ; that the proprietor should, at all times when necessary, have the draw raised, at his own expense, for the convenient passing of vessels through the same.

The solicitor general replied, that the statute granted the respondent the privilege of erecting a bridge for the private accommodation of passing and repassing to and from the island, the same being the private estate of the respondent, and that the grant was not for any public easement or convenience; that it was the intent of the statute that the draw shonld be of sufficient width to permit the convenient passing of all such vessels as had been accustomed to navigate the inlet before the erection of the bridge, and with such necessary piers, &c. The respondent rejoined, that he had complied with the provisions of the statute, and thereupon issue was joined. The jury found that the water above the bridge was navigable for coasting vessels of one hundred tons burthen, and was used before the building of the bridge, and that the draw was not of sufficient width. The court said, the legislature are to determine when the public convenience and necessity require such an obstruction to navigation, and upon what terms and conditions it shall be allowed.

Rowe v. Granite Bridge Corporation, 21 Pick. 344. The company was authorized to construct a road from Milton to Dover, and to locate, build, and construct a bridge across Neponset river, in continuation of the line of the road. The plaintiff was the owner of a piece of salt meadow in Milton. He alleged, that from time immemorial, there had been a creek commencing at the highest part of the marsh, and passing through it to Neponset river, which creek was of sufficient depth and width to admit boats, gondolas, and light craft to pass up and down the creek in common tides, and that such craft might be used to advantage in removing the crops of hay from the marsh ; that the defendants had laid out their road over the marsh and across the creek, and were proceeding to fill up the creek. An injunction was asked to restrain the defendants. The court decided, that a creek in a salt meadow, in order to be deemed navigable, must not be merely sufficient to float a small boat at high water, but must be navigable generally and commonly to some purpose useful .to trade and agriculture. O. J. Shaw, in giving the opinion of the court, says, “It is not every ditch in which the salt water ebbs and flows through the extensive salt marshes along the coast, and which serve to admit and drain off the salt water from the marshes, which can be considered a navigable stream. Nor is it every small creek in which a fishing skiff or a gunning canoe, can be made to float at high water which is deemed navigable. But in order to have this character, it must be navigable to some purpose useful to trade and agriculture. It is not a mere possibility of being used under some circumstances, as at extraordinary high tides, which will give it the character of a navigable stream, but it must be generally and commonly useful to some purpose of trade or agriculture.”

In the case of Thompson, Wilson & others, plaintiffs in error, v. The Blackbird Creek Marsh Company, defendants, 2 Peters 245. Blackbird creek, in the state of Delaware, was navigable for steamers of upwards of ninety tons burthen. Under an act of the state of Delaware, the defendants constructed a dam across the creek, by which the navigation was obstructed. The court decided that the act of the legislature authorizing the dam was not in violation of the constitution of the United States.

There can, I think, be no doubt that the legislature had the power to authorize the erection of a dam at the mouth of Little Alloways creek. There is nothing in the case to show that it ever was a navigable stream, or that a boat of any size ever passed up it.

The defendants further insist, that the dam having been originally made and constructed without the authority of the state, the true construction of the act of 1760 is to give to the defendants not a grant of any right which belonged to the state, but a mere license to continue a nuisance already existing, and that this license was revocable at pleasure.

It may well be questioned, upon the case presented to the court, whether this dam was originally a nuisance, and whether it could not be maintained without legislative sanction. If it was not a navigable river, then it might be obstructed without the authority of the legislature ; and although the fact of the ebb and flow of the tide is prima facie evidence of its being a navigable river, it may be doubted whether the case presented does not overcome such evidence. At any rate, if the question for injunction turned upon that point, the court would not permit the defendants to be deprived of their property without affording them the opportunity of overcoming such evidence.

But while it is true that the dam was not originally erected under the act of 1760, the construction of this act contended for by the defendants cannot be admitted. The dam has been maintained under that act for nearly a century. The act did not authorize the owners of the meadows simply to continue the dam, but it gave the authority of the state to compel its continuance. It has not been continued by the voluntary act of individuals, but they have been compelled to maintain it by the power and force of law. This act created a quasi corporation, provided for the annual election of managers, conferred upon them power to assess property, and clothed them with authority to enforce these assessments. How, then, with any propriety, can it be said, that this act was a license only to continue a nuisance already existing? Whether this act can be repealed at pleasure, so as to deprive parties who have acquired rights under it, is the important question upon which this case turns.

The act of the legislature, passed the 17th March, 1854, which authorizes and requires the township committee of the township of Union to remove the dam, is in violation of the constitution of the United States, which declares, that no state shall “ pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.” It is a virtual repeal of the act of 1760. The last named act was a grant. It granted valuable powers to the owners of meadows along Little Timber creek. In the Dartmouth College case, Justice Story remarks : “ A grant of franchise is not, in point of principle, distinguishable from a grant of any other property. If, therefore, this charter were a pure donation, when the grant was complete, and accepted by the grantors, it involved a contract that the grantees should hold, and the grantors should not reassume the grant, as much as if it had been founded on the most valuable consideration.” Under the provisions of the act of 1760, rights have become vested, and valuable property has been acquired. These powers and this property have been enjoyed under the protection of this act for nearly a century past. The state has participated in the benefits conferred. The property acquired under the act has been taxed for the support of the state and municipal governments. It is in violation of good faith, it impairs the obligation of a contract which has been enjoyed to the mutual benefit of both parties, and it is therefore repugnant to the constitution.of the United States. It is in direct conflict with repeated judicial decisions declaring similar acts void. Fletcher v. Peck, 6 Cranch 87; State of New Jersey v. Wilson, 7 Cranch 164; Dartmouth College v. Woodward 4 Wheat, 518; Trent and others v. Taylor and others, 9 Cranch 43; Story’s Com. on the Constitution of the U. States, 3 vol. 256.

The act of 1854 is also repugnant to the constitution of the State of Hew Jersey. Art. 1, § 16, declares private property shall not be taken for public use without just compensation. And Art. 4, § 7, part 9, individuals or private corporations shall not be authorized to take private property for public use, without just compensation first made to the owners. The dam and water works in question are private property. They have been constructed, maintained and paid for by the owners of the meadow along the creek. They have been acquired under the express sanction of law. The value of the meadow is destroyed by the execution of the law in question, and thus may be said, with propriety, to be taken from the owners. A partial destruction, a diminution of their value, is the taking of private property. This act cannot be carried into effect without a violation of the constitution of the state.

But to avoid the force of these objections to the act,, the defendants set up, in their answer, that this dam is a nuisance ; that the conditions contained in the act, and upon which the rights and privileges of the act are secured to the defendants have been violated, and that therefore the legislature have ordered, and have a right to authorize and direct the removal of the nuisance. But the defendants must justify themselves, and can only justify themselves under the act. The act declares the object to be to restore the navigation of the creek. The act can be executed for no other purpose.

But suppose the conditions of the act to have been violated, and that the grant has been forfeited the forfeiture must be declared by due process of law. Tne legislature have no right to condemn the defendants unheard, and deprive them of their property in this summary way. If they can do it in this case, then they may repeal every act of incorporation on the statute book upon the same pretext.

Cited in Stevens v. Pat. and Newark R. R. Co., 5 Vr. 552; State, Hud. Co. Land Imp. Co. v. Seymour, 6 Vr. 59; Williamson v. N. J. Southern R. R. Co., 2 Stew. 334.  