
    Livingston against Ogden and Gibbons.
    
      May 3d.
    
    By the declaration of the statute, passed April 6th, 1808, (1 N. JFZ.' L. 238. sess. 31. c. 135.) as well as by immemorial usage, the whole of the Hudson river, southward of the northern boundary of the city of JVew- York, and the whole of the bay between Staten • Island and Long or JVassau-Island, are within the jurisdiction of this state: Therefore, where the legislature had granted to L. and F. the exclusive privilege of navigating steam, boats, “ in all creeks, rivers, bays, and waters whatsoever, within the territory or jurisdiction of this state,” all the waters lying between Stalen-Island and Powles Hook and the Jersey shore, were held to be within the jurisdiction of the state, either as part of the Hudson river or the bay; and an ■ injunction was issued to restrain persons from navigating those waters with steam boats, in violation of such exclusive privilege granted to L. and F.
    
    THE bill stated, that the legislature, by an act of the 27th of March, 1798, granted an exclusive privilege to it. Livingston, of using steam boats “in all creeks, rivers, bays, and waters, whatsoever, within the territory or jurisdiction of this state,”, for fourteen years, &c. That by the act of the 5th of April, 1803, the privilege was granted to R. R. Livingston and Robert Fulton, for twenty years. That they complied with the terms upon which that privilege was granted. That by an act of the 6th of April, 1808, the privilege was extended for thirty years, and that if any person violated that privilege, by navigating any steam boat, without their license, “ upon the waters of this state, or within the jurisdiction thereof,” they should forfeit such boat. That by an act of the 9th of April, 1811, injunctions were to be awarded to protect the privilege, he. That on the 20th of August, 1808, Livingston and Fulton, by deed, granted to the plaintiff the right they possessed to navigate steam boats, “ from any place within the city of JYew-York lying to the south of the State Prison, to the Jersey shore and Staten Island, viz. Staten Island, Elizabethtown Point, Amboy, and the Rariton up to Brunswick, but to no point or place north of Powles Hook ferry.” That on the 5th of May, 1815, the. plaintiff granted to the defendant Ogden-permission to run a steam boat between Elizabethtown Point and JYew-York, for ten years; and the defendant Ogden agreed that he would not, directly or indirectly, be concerned, during the term, with any steam boat, to run to or from any other place within the grant of the plaintiff. That the defendant Gibbons is the owner of a steam boat, called the Bellona, and without license, and contrary to the i ght of the plaintiff, employs it to run between Elizabethtown Point and JYew-Brmswick; and has lately navigated the waters of this state, between Elizabethtown Point and Powles Hook, and between Powles Hook and JYew-York. That the defendant O. hath combined with the defendant G. to violate the right of the plaintiff. That the defendant O. is the owner of a steam boat called the Atalanta, and the two defendants have agreed to employ these two boats in conveying passengers between JYew-York and Brunswick, to wit, the Atalanta navigating between JYew-York and Elisabethtown Point, and the Bellona between that place and Brunswick; and that the defendants have agreed to exchange passengers at Elizabethtown Point,, and have appointed one1 William B. Jaques, their common agent in- JYew-York, to receive the passage money for the whole route, and he has given notice of such an arrangement. Prayer for an injunction, to restrain the defendants from navigating the said two boats, except from JYew-York to Elizabethtown Point■ &c.
    The answer of Aaron Ogden stated, that the ports and harbours of Elizabethtown Point and Brunswick, are within the jurisdiction of JYew-Jersey. That the waters lying between those points are equally so; and he denied that such navigation is in contravention of any law of JYew-York. That the grant to Livingston and Fulton was only as to waters exclusively within the state of JYew-York. That neither, the grant to them, nor to the plaintiff, ever gave any exclusive right to navigate steam boats between one port in JYew-Jersey and another port in JYew-Jersey. He denied all agreement and combination with the defendant G., or that Jaques is, his agent, or the joint agent of him and the defendant G. The defendant admitted, that -passengers are conveyed on board, his boat, when running in her usual course from JYew-York to Elizabethtown Point, and are then and there received on board the Bellona, and conveyed to JYew Brunswick; but he denied that this was any violation of his agreement with the plaintiff. That he had no concern with, or interest in, the boat of the defendant G.
    
    The defendant, Gibbons, in his answer, admitted the statutes, and the derivative right of the plaintiff, but denied that he acquired any exclusive right to navigate by steam boats to the Jersey shore, at Powles Hook, Elizabethtown, Amboy, &tc. He admitted, that the plaintiff’ runs a steam boat, called the Olive Branch, from JYew-York to Bruns
      
      wick, but denied that the plaintiff has any exclusive right so to do. He admitted, that he owned a steam boat called the Bellona, and that she runs between Brunswick and Elizabethtown Point, and that she has occasionally been continued to Powles Hook, and returned again, without navigating any waters exclusively within the state of JYew-York. That the boat runs from one port in JYew-Jersey to another port in JYew-Jersey. That he has a coasting license under the United States. That on the 11th day of April, inst. his boat ran once from Pozoles Hook to the city of JYew-York, under a license from the Jersey steam boat company, since expired, and that the boat has not run on the exclusive waters of JYew-York on any other occasion. He denied all agreement or combination with the defendant Ogden, or that Jaques is their common- agent or the agent of this defendant, to collect money from passengers, &sc. He denied that the notice was ever published by his authority.
    A motion was made in behalf of the plaintiff, for an injunction to restrain the defendants from using their steam boats, &c.
    
      T. Sedgwick, and H. Bleecker, for the plaintiff.
    J. V. Henry, for the defendant Ogden.
    
    
      Scudder, (of New-Jersey,) for the defendant Gibbons.
    
   The Chancellor.

This case brings up the question of territorial jurisdiction.

By the act of the legislature of this state, passed the 6th of April, 1808, entitled, “an act relative to the jurisdiction of this state, over the territory therein mentioned,” the jurisdiction of this state is declared and asserted over “ the whole of the river Hudson, southward of the northern boundary of the city of JYew-York, and the whole of the bay between Staten Island and Long or JYassau Island.” AH the water that lies between Staten Island, and Powles Hook, and the Jersey shore, would seem to be comprehended in the above limits, as being either a part of Hudson river, or of the bay. It belongs either to the one or" the other, and so far, therefore, as the steam boat Bellona has navigated between Staten Island and Powles Hook, she has navigated upon the waters within the jurisdiction of this state, and in violation of the exclusive right granted to JLivingston and ' Fulton, and by them, in respect to those waters, to the plaintiff. The act referred to, declares it to be “ the duty of all officers, according to their respective powers, authorities, and functions, to preserve, maintain, and defend the jurisdiction of this state, in and over the said territory, until this state shall be evicted thereof by due course of law.’’ But the exclusive jurisdiction of this state does not appear to be asserted and declared to the water of the sound that lies between Staten Island and the state of JYew-Jersey. And 1 do not think that I am warranted, and it certainly is not my inclination, to extend the exclusive privilege of navigating boats by steam, granted by the legislature of this state, beyond the injunctions of the law, or so far as to interdict the defendant Gibbons from navigating a ■ steam boat through that sound, between Elizabethtown Point and Amboy. But as to the waters between Powles Hook and Staten Island, and which are clearly a part of the waters of Hudson river, or of the bay of JVew -York, the jurisdiction of the state must be as entire and perfect as to \ any part of the waters on Hudson river. The jurisdiction must be absolute and exclusive, if any jurisdiction exists; and the declaration of the statute, as well as immemorial usage, have left no discretion in our Courts on that point.

I shall, therefore, deny the motion as against the defendant Ogden, who navigates his’ boat under authority from the plaintiff, and who does not appear, in any instance, to. have exceeded that authority; and I shall grant the motion as against the defendant Gibbons, so far Only as to enjoin him from navigating the waters in the bay of New-York, or Hudson river, between Staten Island and Powles Hook.

Order accordingly.  