
    The inhabitants of the town of East-Haven against Hemingway and others.
    On the application ©f the proprietors and inhabitants of the town of New.Haven, for a patent of confirmation of the lands, both meadow and upland, with their appurtenances, within certain boundaries particularly specified, which they had obtained, by purchase, or otherwise lawfully, of the Indian native proprietors, and whereof they had stood seised, and in quiet possession, for many years then past without interruption, the General Assembly of the colony of Connecticut, in 1685, for a more full confirmation of the premises unto the said proprietors and inhabitants of the town of New-Haven, in their rightful possession and enjoyment of the same, gave, granted, ratified and confirmed unto them, their heirs successors and assigns, the premises so butted and bounded, together with all the meadows, pastures^ swamps, upland and arable land, woods, islands, ponds, ways, waters, watercourses, havens, ports, rivers, fishings, huntings, fowlings, mines, minerals, quarries, precious stones, on or within the premises, and all other commodities, privileges, franchises and hereditaments whatsoever thereunto belonging, or in anywise appertaining to any part or parcel thereof. Within the boundaries of the premises was Dragon river, an arm of the sea, where the tide ebbs and flows, and navigable for large vessels. Held, 1. that this act of the General Assembly was not only a confirmation, but a grant, of title; but 2. that the soil between high and low water mark of Dragon river, was not thereby granted.
    In 1640, the General Assembly of the colony of New-Haven granted to thir. ty-two individuals, for the purpose of planting, a tract of land on the East side of Dragon river, to be located, by the grantees, in separate lots, and to be held by them in severalty. One of these lots was located contiguous to the river, and bounded Westerly on the river, extending over a highway previously laid out on the Eastern bank above high water mark. Held, that this grant was not subject to a condition or qualification that the lots should be planted, according to the modern acceptation of that term; no more being intended, than that the land was conveyed to the grantees, that they might make a settlement thereon ; and consequently, that they had good right to locate the grant in part on a highway, from which they might derive accommodation.
    The proprietor of land adjoining to a navigable river, has an exclusive right to the soil between high and low water mark, for the purpose of erecting wharves and stores thereon.
    This was an action of ejectment; tried at New-Haven. January term, 1827, before Brainard. J.
    
      The demanded premises were the soil, with the wharf and store standingthereon, built between high and low water mark, on the East side of Dragon river. This river is an arm of the sea, where the tide ebbs and flows, and is navigable, adjoining the premises, for large vessels.
    The title claimed by the plaintiffs, was derived, 1. from the charter of Charles II. to the colony of Connecticut, in 1662 ; 2. from the patent, given by the colony, to the proprietors of New-Haven, in 1685 ; 3. from the act of incorporation of the village of East-1laven, in 1707, and the practical division between the proprietors of New-Haven and East-Haven, sanctioned in 1756 ; and 4. from the deed of cession, by the proprietors of East-Haven, to the town of East-Haven, in 1797, confirmed by a public act of the General Assembly, in 1825.
    By the first-mentioned instrument, Charles II. gave, granted and confirmed to the colony all that part of his dominions within certain limits, “ together with all firm lands, soils, grounds, havens, ports, rivers, waters, fishings, mines,” &c.
    The patent granted by the colony to the inhabitants and proprietors of the town of New-Haven, was dated the 6th of January, 1685, 
       [1686] and extended on Long-Island sound from the Western part of the present town of Orange to the Western part of the present town of Branford, including, of course, the place in question. This instrument begins with the following recitals: “ Whereas the General Court of Connecticut colony have formerly granted unto proprietors, inhabitants of the town of New Haven, in the said colony, all those lands, both meadow and upland, with all their appurtenances within these abutments [specifying them] “ the said lands and premises having been, by purchase or otherwise, lawfully obtained of Indian native proprietors, by the said proprietors and inhabitants of New-Haven -”
    
    “ And whereas the said proprietors and inhabitants of New-Haven have made application to the Governour and Company of the said colony of Connecticut assembled in General Court, the 14th of May, 1685, that they may have a patent for confirmation of the aforesaid lands and premises, so purchased, and granted unto them as aforesaid, whereof they have stood seised and in quiet possession, for many years past, without interruption.”
    
      The patent then proceeds thus : “ Now therefore, for a more fup confirmation of the aforesaid tract or tracts of land and premises, so butted and bounded as before expressed, unto sa'd proprietors, the inhabitants of the aforesaid township of New-Haven, in their rightful possession and enjoyment of the same, Know yj;, that the said Governour and Company assembled in General Court aforesaid, according to the power and commission granted unto them, by his late Majesty’s gracious charter, have given and granted, and by these presents, do give, grant, ratify and confirm unto James Bishop, Esq., William Jones, Esq , &c. and to the rest of the present proprietors of the township of New-Haven, their heirs successors and assigns forever, all that parcel or tract or tracts of lands and premises, so butted and bounded as aforesaid, together with all the meadows, pastures, swamps, upland and arable land, woods, islands, ponds, ways, waters, water-courses, havens, ports, rivers, fishings, huntings, fowiings mines, minerals, quarries, precious stones on or within the said tracts of land, and all and singular other commodities, privileges, franchises and hereditaments whatsoever, thereunto belonging, or in any ways appertaining to any part or parcel thereof, within the said bounds and limits aforesaid.”
    On the petition of the inhabitants of the East-Village of New-Haven, the General Assembly of the colony, in Mai/, 1707, enacted, that they should be a village distinct from the township of New-Haven ; and invested with all the immunities and privileges proper and necessary for a village, for the upholding the public worsliip of God, as also their own civil concerns ; and in order thereunto, the General Assembly granted the liberty of all such officers as are proper and ne-essary for a town, to be chosen by themselves, in the order and form provided by law for any town. East-Haven, thus constituted, extends Westerly to the channel of Dragon river, including the demanded premises within its limits.
    Since the incorporation of East-Haven into a village, the proprietors of New-Haven residing in New-Haven, have ceased to exercise any acts of ownership over the common and undivided lands within the limits of East-Haven ; and the proprietors in East-Haven have, in sundry instances, disposed of the common and undivided lands within their own limits.
    By an act or resolve of the General Assembly, in 1756, the proprietors of the common and undivided lands, living in the village of East-Hiven, were constituted a proprietary, a body corporate, and, as such, owned, and had a right to dispose of all the common and undivided lands lying within the limits of that village.
    In January, 1740, the proprietors in East-Haven granted to Joseph Tuttlé, jr. and others, their heirs and assigns forever the flats at a certain place within the limits of East-Haven, sixty feet wide from high watermark down to the channel, provided they should build a wharf, &c. ; also, to John Woodward and others, their heirs and assigns forever, the flats at another place, down to the channel, subject to a similar condition. At a meeting held in February, 1797, these proprietors granted to Enos Hemingway and others the flats, 187 feet in width, to the channel, for certain purposes specified in the grant : and in March, 1797, to the town of East-Haven all the remaining right, which the grantors were entitled to in the^flats lying within the limits of that town. The latter grant was confirmed by the provisions of the act of 1825, ch. 11.
    The proprietors in New-Haven, from 1710 to 1722, made eight different grants of flats situated between Tomlinsons bridge and the long wharf, within the limits of the present town of New-Haven. Neither East-Haven, nor any of the proprietors living in East-Haven, after the year 1707, took any part in any of the proceedings of the proprietors of New-Haven in relation to these flats 
    
    The facts relied on in support of the defendants’ title, are the following. The village of Dragon is built on each side of the Dragon river, and is a place of considerable commerce, having more than twenty vessels employed in trade, going to, and returning from distant parts of the United States. For more than forty years past, proprietors of land adjoining Dragon river, on each side, have, at pleasure, wharfed out into the river below high water mark, to accommodate the trade of the village and the public ; more than thirty valuable wharves having been so built. Neither the proprietors of New-Haven nor of East-Haven have ever made any grant of flats, or of the shore, on either side of the channel of Dragon river, nor ever granted any licence to any person to build any wharf; nor has any appl¡cation ever been made to them, for the purpose of procuring leave to build a wharf on any part of the river ; nor have they, or the ancient proprietors, from the first settlement of the country, ever exercised any act of ownership upon any part of the river, or the soil under it, or made any claim to any part of the shore, until the bringing of the present action. The demanded premises have always been an open and public shore, and used, by the public, for the purpose of navigation and fishing, excepting only the use which has been made of the shore in question, by the defendants, and those whose estate the defendants have.
    On the basis of these facts, the defendants claimed, that if the fee of the demanded premises were ever in the original proprietors of common and undivided land, or in the plaintiffs, the plaintiffs’ right was long since abandoned and lost; and the defendants prayed the judge so to instruct the jury.
    In the year 1640, the General Court of the colony of New-Haven allotted to thirty two individuals, for the purpose of planting, a tract of land about one mile in length, on the East side of Dragon river, extending from the farm of the Rev Mr. Davenport on the North to the Indian wigwams on the South, embracing within its limits the land adjoining the demanded premises, and a considerable tract next thereto above and below. This land was to be taken up and located, by the grantees, in separate lots, to be held by each of them in severalty, as his own proper estate in fee ; and the apportionment was to be so made, that each individual, if single, should have four acres, if he had a wife, six acres, and one acre more for each child belonging to his family The lots so taken and appropriated were called Dragon lots. One of these lots was opposite the demanded premises, on the Eastern side of Dragon river, and bounded Westerly on this river; to which the defendants claim title as heirs to Gershom Brown, who purchased it from the heirs of the original proprietor.
    The defendants claimed to have proved, that the location of the Dragon lots, and of the last-mentioned lot particularly, was made immediately after the order of the General Court in 1640 ; and that such location was followed by immediate and uninterrupted possession. The plaintiffs claimed, that before the location of any of the Dragon lots, a highway was laid out on the Easterly bank of Dragon river above high-water mark ; and that in the original location of these lots, they were bounded Westerly on such highway, leaving the fee of the highway in the original proprietors of New Haven; which had since passed to the town of East-Haven. The defendants insisted, that the Dragon lots, as originally located, were bounded Westerly by the river ; and if there was any highway along the bank of the river, it Was laid over their land. In support of the claims of the parties respectively, regarding this highway, much evidence was introduced on each side, which it is not now necessary to state.
    The judge instructed the jury, that by the charter of Charles II., granted to the colony of Connecticut, in 1062, the land between high and low water mark belongs to the adjoining proprietors of the substantial soil. Whoever owns the substantial soil to high water mark, owns the amphibious property between high and low water, as an appurtenance, for wharfing and other purposes of navigation, not obstructing the public accommodation; and no man, who thus owns the land to high water, can be deprived of the reasonable use of this appendage, unless by his own folly or consent. The king, in his charter, granted ports and havens.
    
    That the legal import and effect of the patent given by the colony of Connecticut to the proprietors and inhabitants of the town of New-Haven, in 1685, is a charter of confirmation and of grant; a confirmation of all they had acquired from the natives, by purchase or otherwise, honestly ; — confirmation of all previous disposition of lands made to individuals, by the General Court of the colony of New-Haven, or by those acting under their authority ; and a grant to the proprietors and inhabitants of New-Haven, as tenants in common, of the residue of all the lands that had not been previously disposed of, with all the privileges appertaining to property of this character^ which were granted to the colony of Connecticut, by the charter of Charles II.
    That consequently, the land in question was vested in the then proprietors and inhabitants of the town of New-Haven, unless it had been previously disposed of, by the colony of New-Haven.
    
    That by the incorporation of the village of East-Haven in 1707 ; by the assumption of the powers of a distinct body corporate by the proprietors of the common and undivided lands lying in that village, in disposing of the common and undivided lands lying within its limits, with at least the tacit acquiescence Qf [jie proprietors of the other section of. New-Haven; and especially, by the confirming act of the General Assembly in 1756, — 'he proprietors in East-Haven were a body corporate, and, as such, owned, and had a right to dispose of, all the common and undivided lands within the limits of that village.
    That by the votes of the proprietors of East-Haven in 1797, in connexion with the confirming act of the General Assembly in 1825, the town of East-Haven, the plaintiffs in this action, acquired a valid title to the land in question, unless it had been previously disposed of.
    The judge then proceeded to examine the claim of title set up by the defendants. After stating the grant of the colony of New-Haven in 1640, he remarked : “ Under this grant the defendants claim ; and the question is, whether these rights were taken up, how located and when ? These individuals had the right, within a reasonable and proper time, to make their location of their respective lots on the Eastern bank of Dragon river; to fix stakes at high water mark, and extend back Easterly until they encompassed their complement; and all in front of this amphibious ground between high and lowr water mark, was his or theirs, and nobody could cut off their water-front without their consent. The turning point in the case must be, whether anterior to the year 1685, the lot immediately to the Eastward of the land in question, under any of the rights granted to the thirty-two individuals, was taken up and located on the Eastern bank of Dragon river; and whether the defendants deduce their title from such locations under any one of these original grantees.”
    In relation to the highway claimed to have been laid out on the East side of Dragon river, the judge said: “ If there was a highway laid out and established on the East side of Dragon river, and Easterly of high water mark, before the lot, of which the land in question is claimed to be an appurtenance, was located, and that lot was located and bounded West on the highway, it follows of course, that the defendants’ claim of title fails. But whether there was, or was not, a highway as claimed, if the proprietor of the lot under the grant of 1640, did locate his land on the river, on the East bank, the highway is no impediment; as he or his assigns always have had, and still have, the fee of the highway.”
    The judge concluded his remarks upon this branch of the case, by submitting the question of fact thus: “ If you find, gentlemen, that any one or more of the thirty-two grantees, under the act of the General Court of the colony of New-Haven of 1640, located his or their lot or lots of planting ground on the East bank of Dragon river, and took the shore or high water mark as the boundary ; and that the defendants have deduced their title from that source ; you will find, that the defendants have done no wrong,” &c.
    The jury returned a verdict for the defendants ; and the plaintiffs moved for a new trial.
    The case was argued before this Court, July term, 1827, by Sherman and R. S. Baldwin, in support of the motion, and by N. Smith and Seeley, contra; and was continued to advise.
    
    The counsel for the plaintiffs contended, 1. That they had shewn a good title to the demanded premises. In support of this general position, they insisted,
    First, that by the common law of England, the title to the soil under all navigable waters, where the tide ebbs and flows, is vested in the king. He holds the jus privatum, subject to the public rights of fishery and navigation. Hale de Jure Maris, part 1. c. 4. \Harg. Law Tracts 12. & seq.] Com. Dig. tit. Navigation. A. B. The case of the Royal Fishery of the Banne, Davies 155. [Dub. ed. 1762.) Carter & al. v. Murcot & al. 4 Burr. 2162. The Attorney General v. Richards, 2 Anstr. 603. The King v. Smith & al. Doug. 441.
    Secondly, that the king may grant this soil to a subject or corporation, subject only to the public rights. Harg. L. T. 17. 18. 22. 32.36. The Royal Fishery of the Banne, Davies 149. Carter & al. v. Murcot & al., 4 Burr. 2162. The Commonwealth v. The Inhabitants of Charlestown, 1 Pick. 180. An-gelí on Tide Waters, 33,4.
    Thirdly, that by the charter of 1662, Charles II. granted all his interest in the soil under the navigable waters, as well as in the upland, with the powers of government to the colony of Connecticut, with reservation of the common right of fishery, “ in derogation of which no modern grants can be made.” Per Bailey J., in Blundell v. Catterall, 5 Barn. & Aid. 268. (7 Serg. & Lowb. 108.) See Cowp. 213. as to grants of political power. 1 Pick. 180.
    Fourthly, that the colony of Connecticut, by their patent of grant and confirmation, conveyed the jus privatum of the soil under navigable waters, to the inhabitants of New-Haven,— subject, of course, to the public rights of fishery and navigation. The subjects of the grant are “ all lands, soils, heredit-aments, rivers, fishings,” &c. The words might have passed even the fishery, but for the reservation of that common right in the king’s charter.
    Fifthly, that the proprietary interest in the locus in qua having passed from the proprietors of New-Haven to the proprietors of East-Haven, and from them to the town of East-Haven, it follows that the plaintiffs own it, unless the defendants can shew a paramount title.
    2. That the charge in relation to the title of the defendants was wrong. The defendants claimed title under a location pursuant to an order of the General Court of New-Haven in 1640, authorizing certain persons to locate planting ground East of Dragon river, and subsequent conveyances to themselves bounding on the river. The plaintiffs claimed, that anterior to this grant and location there was a highway by the side of the river. The judge charged the jury, that under this grant, though the jury should find, that there was a highway previously laid out; yet the grantees might lawfully locate over the highway to the river : and that whoever owned the adjoining upland had, as an appurtenance, the right of wharfing out. Both these positions the counsel for the defendants denied.
    First, the grant was of planting ground. Its construction must be most favourable to the public. It cannot enure to any other intent than that which is precisely expressed. 4 Cruise’s Dig. 567. Even what is necessary to the enjoyment of the thing granted, shall not pass, without express words. Ibid. The location over a highway would be unnecessary to the enjoyment of the grant; foreign to its object; and inconsistent with the rights of the public, since wherever they might lawfully locate, they might plant. Independently of the grant, the defendants have acquired no right to come to the river.
    Secondly, if the grantees could make a lawful location to the river, they could acquire no rights there below high water mark. There is no pretence, that any title to the locus in quo has been acquired by possession It was unoccupied until the defendants entered, and erected their wharf. The legal possession of unoccupied land is always according to the right. The sranf of 1640 was made two vears after the settlement of the colony. Onr ancestors brought with them the common law as their birth-right; and its rules in regard to tide waters, were then well settled and understood. They have since been repeatedly adopted and sanctioned by our courts. Adams v. Pease, 2 Conn. Rep. 481. The Commonwealth v. Charles-town, 1 Pick. 180. Cortelyou v. Van Brundt, 2 Johns. Rep. 357. Storer v. Freeman, 6 Mass. Rep. 435. Peck v. Lockwood, 5 Day 22. 26. Hooker v. Cummings, 20 Johns. Rep 90. 100. By the rule of the common law, as adopted in these cases, the adjoining proprietor holds only to high water mark. In Massachusetts the common law was altered, by an ordinance in 1641, the year after the defendants’ grant. In Connecticut, it has never been altered ; and it cannot be, in reference to our waters, without violating important vested rights. If then, these flats were not granted in 1640, they remain to the proprietors, and those who claim under them. The plaintiffs have, therefore, a right to recover, unless it can be successfully maintained, that the defendants came to the river, the highway notwithstanding; and that adjoining proprietors have necessarily a legal right to wharf out in front of their land. Even in Massachusetts, notwithstanding the ordinance of 1641, the courts hold, that the owner of flats and upland may grant the one without the other; and that a deed bounding “ on the shore," does not convey the flats. Storer v. Freeman, 6 Mass. Rep. 435. S. C. Angelí on Tide-Waters, appx. 149. But the grant of 1640, being confined to planting ground beyond the river, and made in reference to the common law rule, is as much exclusive of the flats, as if it had been bounded by “ the shore,” or “ to high water mark,” or by feet and inches. See Harg. L. T. 12. & seq. Pratt v. The State, 5 Conn. Rep. 398.
    But it may be said, that without acquiring any title to the flats, an individual may, as appurtenant to his land, wharf out, if he does not erect a nuisance. This doctrine can never be true, where the flats are owned by one man, and the uplands by another. In England, when the soil of the shore is in the king, such erections by the adjoining proprietor, are purprestres —i. e. encroachments on his jus privatum. If nuisances, they must be abated ; if not, the king may rent them. Harg. L. T. 13. 2 Anstr. 603. In such case, the owner of the adjoining upland does not, by wharfing, violate the private rights of any individual; and if his erection is not a nuisance, the public would ordinarily permit it to remain. The right of wharfing, jn SUG[1 case) however, has been directly denied, in Pennsylvania ; (Respublica v. Caldwell, 1 Doll. 150.) and is disallowed, statute, in Rhode-Island. But allowing it, in its full extent, it does not interfere with the plaintiffs’ claim.
    The counsel for the defendants, contended, 1. That the charter of Charles II., in 1662, did not convey the soil under the tide waters to the grantees ; and much less did the patent of 1685, from Connecticut to New-Raven.
    
    First, the grant of “ ports, havens, rivers,” &c., conveys only the use of the water, — not the soil under it Co. Litt. 4. Harg. L. T. 33. Cro. Car. 492. Yelv. 143. and n. (1). by Metcalf. Shep. Touch. 97. 3 Bla. Comm. 18. 1 Swift’s Dig. 74. Davies 149.
    Seeondly, the king owns the shore of the sea, by virtue of his royal prerogative : and a prerogative right can be passed only by apt, precise, and necessary words. The first part of this proposition is supported by Hale throughout; by The Attorney General v. Farmen, 2 Lev. 171. Davies 149. As to the second part of the proposition, see 1 Plowd. 310. 336. Hob. 243. 17 Vin. Abr. 133. and the cases there cited. Davies 149. Harg. L. T. 17. 18. 33. Now% the patent of 1685 contains neither general words, nor words of particular description sufficiently comprehensive to include the demanded premises. They are not conveyed by the sweeping clause ; the use and object of which, is, to guard against any accidental omission, but still to refer only to estates or things of the same nature and description with those that have been previously mentioned. Per Lord Mansfield in Moore v. Magrath, Cowp.A2.
    
    Thirdly, the patent of 1685, is, in its object, and on the face of it, only a charter of confirmation. It does not purport to convey to the inhabitants of New-Raven any lands which they had not before acquired from the Indians : it only confirms and ratifies their ancient title to those “ lands, both meadow and upland, so purchased and granted to them as aforesaid,” (i. e. by the Indians) whereof they have stood seised, and in quiet possession, for many 3rears past, without interruption.” Co. Lift. 295. Shep. Touch. 311. 314. & n.
    2. That the title of the proprietors of common and undivided lands in Fast-Haven never passed from them, and has never been conveyed to the plaintiffs. Such proprietors may divide up the lands among themselves ; but a majority of them, by a mere vote, without consideration, cannot pass the title to strangers. The town of East-Haven, therefore, has no pretence of title.
    3.That if the demanded premises could, in any sense, have been considered as comprised in the terms of the patent of 1685, from the facts of the case it is apparent, that the grant quoad Dragon river, was never accepted, by the grantees ; and that neither they, nor any person under them, ever claimed title until th e bringing of the present action.
    4. That if the demanded premises ever belonged to the grantors of the plaintiffs, their title has, long since, been abandoned to the public. They have not kept up the evidence of their right; nor taken any measures to guard it ; no claim having been ever made or act of ownership exercised, on their part, until the commencement of the present action. Hale, passim. The Attorney General v. Richards, 2 Anstr. 603. Miles v. Rose, 5 Taun. 705. Chad. v. Tilscd, 2 Brod. & Bing. 403. (6 Serg. & Lowb. 171.)
    5. That the charge of the judge to the jury was correct. The substance of the charge is. that the proprietor of land adjoining tide waters has a right to wharf out below high water mark, for the purposes of navigation and commerce. All grants, which may be made of the public interest in tide waters, are necessarily affected, as Lord Hale expresses it, with this right in adjoining proprietors, for the purposes of navigation. Harg. L. T. 22. 85. Such is the common law of Connecticut, as evidenced by immemorial usage, founded on the nature of the property and the exigencies of navigation. 1 Swift’s Dig. 109. In England, the law vests the ownership of the soil under tide waters in the king as trustee for the benefit of his subjects ; a right, which cannot be exercised to their exclusion, either by the king or his grantee, since magna charta. Hale, passim. Blundell v. Caterall, 5 Barn. & Aid. 288. (6 Serg. & Lowb. 91. 93. & seq.) Com. Dig. tit. Navigation. A. In this country, it is emphatically true, that we acknowledge no right in the sovereignty but what is necessary for public purposes.
    
      
      
         Our ancestors, at this period, began the year in March, and of course, this date, according to the present mode of reckoning time, would be 1686.1?,
    
    
      
      «) There was other evidence of the same general character, introduced by the plaintiffs, for the purpose of shewing a practical construction of the patent of 1685 favourable to their claim, which is omitted, for the two-fold reason, that a detail of it would render the statement inconveniently prolix, and that it is not necessary to present Sistinctly the points discussed and decided.
    
   Hosmer, Ch. J.

The controversy between the parties in this case, regards only the title of the land demanded.

The plaintiffs claim title under the charter of Charles II. in JQ02, f0 the colony of Connecticut; by a patent from the colo-ony, in 1685, to the town of New-Haven : and by a grant from the proprietors of this town.

There is no doubt concerning the competency of Charles II. to convey the land in question to the colony of Connecticut. A river, where the tide ebbs and flows, is an arm of the sea ; and the shore is that space of ground, which is between ordinary high water and low water mark. Hale De Jure Maris, pars I. c. 4. Harg. L. T. 12. The title of the king, prima facie, to all ports and arms of the sea to high water mark, and to the soil thereof, has long been established law ; and, as an undoubted consequence, it is settled, that he may grant the property of the soil between high and low water mark to a subject or corporation. Harg. L. T. 12. 17. 32. 5 Rep. 107. Dyer 93. Com. Dig. tit. Navigation A. B. Davies 56, 7. 149. 2 Anstr 605.

Whether on the legal construction of the charter of Charles II., the shores of navigable waters were granted to the colony of Connecticut, is a question admitting of controversy, on which it is unnecessary to enter. Clear 1 am, that they were not intended to be conveyed to the proprietors of New-Haven, by the act of 1685. By this instrument, the General Assembly of Connecticut, gave, granted, ratified and confirmed to the proprietors of New-Haven, “ all that parcel, or tract or tracts of land and premises,” butted and bounded in such manner as to comprise the river in question, “ together with all the meadows, pastures, swamps, upland and arable land, woods, islands, ponds, ways, waters, water-courses, havens, ports, rivers, fisheries, huntings, fowlings, mines, minerals, quarries, and precious stones,” within the aforesaid bounds and limits The suggestion that the act of the General Assembly was on\y confirmatory of a former grant in the town of New-Haven, I lay out of the question. By the operative words give, grant and ratify, it was not only a confirmation, but a grant. 1 Inst. sect. 515. 531. Shep. Touch. 83 4 Cruise’s Dig. 301. sect. 40. Jackson d. Klock & al. v. Hudson, 3 Johns. Rep. 375. Jackson d. Troup & al. v. Blodget, 16 Johns. Rep. 172. 178. At the same time, it must be admitted, that the principal, if not the sole object of the grant, was, to confirm to the proprietors the title to their lands purchased of the natives, which they had not legal capacity to sell; (3 Johns. Rep. 375. 6 Cranch. 87. 8 Wheat Rep. 543. 3 Kent’s Comm. 308. ;) and of which the proprietors had been in the quiet possession for many years. Vid. grant of 1685.

In expounding the legislative confirmation and grant, I adopt as the principle of construction the meaning and intention of the General Assembly, derived from a fair interpretation of their expressions. If it were necessary, perhaps, the rule respecting the exposition of royal grants, which are ever construed most favourably for the king, might with propriety be applied in construction of the act of 1685 ; it being matter of record, and proceeding from the bounty of the legislature. Plowd. 243. 5 Cruise’s Dig. 49. But this case does not require any strained principle of interpretation.

In the first place, it has been argued, that the shores of Dragon river were granted to the proprietors, the inhabitants of New-Haven, as they were included within the general boundaries of the grant. The contrary of this was decided in Palmer v. Hicks, 6 Johns. Rep. 133. on the principle, that a grant to a town extending on both sides of a navigable river, so far as the river extends, is for the purpose of jurisdiction only, and not with intention to convey the soil underneath the water, or below high water mark. It is not presumable, that it was the object of the grant to convey the public right of the colony in the shores of navigable rivers to the purchasers of lands from the natives, requesting the confirmation of their title. A right so important as this is to the public, cannot be considered as parted with, except by words so unequivocal, as to leave no reasonable doubt concerning the meaning. The constructiou advanced by the plaintiffs, is a novelty, and inconsistent with the conduct of the proprietors adjoining Dragon river, for more than a century. The action before the court is the first claim made by the plaintiffs to the shore of this river.

The plaintiffs have insisted, that theirs is the soil of the shore of Dragon river, by the express words of the grant to the proprietors oí New-Haven. After including the river within the general boundaries, a sweeping clause is added, whereby the meadows, pastures, &c. are granted, with the waters, water-courses, havens, ports, rivers, fishings, &c. within the bounds before alluded to, and all and singular the other commodities, privileges, franchises and hereditaments whatsoever thereunto belonging, or in any ways appertaining. This clause was intended to guard against any accidental omission. Cowp. 12. Much the greater part of it has not even a remote reference to the subject of controversy ; nor can I discern a wor& or expression, that has any essential bearing upon it. The terms “ waters,” “ water-courses,” “ ports,” havens,” rivers,” and “fishings,” approach the nearest; but it is unquestionably clear, that the words ports and havens are irrela-tive to the matter in question ; and that by either of the other expressions, the soil is never conveyed. Co. Litt. 4. b. Yelv. 143. 2 Bla. Com. 18. Shep. Touch. 97. Com. Dig. tit. Grant. E. 5. 1 Swift’s Dig. 74. They are adapted, at most, to the conveyance of a franchise.

By the expressions “ commodities, jurisdictions, royalties, privileges, franchises, preeminences, and hereditaments,” there is no extension of the grant to the soil in question. The word hereditaments” is the only one, on this point, meriting attention ; and it is perfectly incredible, that by a term so general, the General Assembly intended to convey the soil of a navigable river, which was unquestionably within the boundaries of the grant, and which, notwithstanding this, was not thereby conveyed. A word or expression precisely to denote a grant so much out of the common course, would have been employed ; and not a general term, which, on the construction contended for, would regrant all that had been granted, and give an exclusive right to the soil under all rivers, ports and havens within the exterior lines of the supposed conveyance.

I am sensible, that too much, already, has been said respecting the word “ hereditaments.” Taking the entire clause in which this term is found, it is unquestionable, that it was not inserted to convey the soil, but was used synonymously with some of the other general expressions recited. The act, in the first place, grants land within certain boundaries. It next, by a number of terms, supplies any accidental omission of the subjects intended to be granted. It then closes, by conveying “ the commodities, privileges, franchises and hereditaments, belonging to or any ways appertaining to any part or parcel” of the land, lying within the specified boundaries. The term “ hereditaments,” therefore, as well as the words “ commodities, privileges and franchises,” was never intended to convey the soil, but something appurtenant thereto ; for the thing conveyed by this term, is that “ which was belonging to or in any way appertaining” to the land granted.

To consider the other documents and testimony exhibited, in establishment of the plaintiffs’ title, is unnecessary The whole rests on the grant of 1685, and that failing, it is of course, that the plaintiffs’ title must fail also. The judgment below, therefore, is correct.

Whether the defendants have title is an enquiry of no importance, so far as this case is concerned. But as on this point the court have come to a result, 1 will briefly express their opinion

The General Assembly of the colony of New-Iiaven, in 1640, granted thirty-two lots of land to certain individuals, for the purpose of planting, to be allotted on the East side of Dragon river. The grant was located near the East bank of that river, in part over a highway, and bounded on high water mark, directly in contact with the shore now demanded. The defendants have traced their title to the land in question to one or more individuals to whom the grant was originally made. This brief statement of the facts is sufficient to estimate the force of the objections made to the defendants’ title.

In the first place, it was said, that the lots having been granted for the purpose of planting, the grant cannot enure to any other intent; and that they could not legally be laid out, in part on a highway, as they would, to this extent, be incapable of cultivation. If this view of the subject were sound, it would become a material question, whether any person except the grantors, could take advantage of the breach of contract; but it is -without any foundation.

The fallacy of the argument consists in supposing, that to the grant of the lots there was subjoined the condition or qualification that they should be planted, according to the modern acceptation of this term. If the actual planting of the land granted, was the condition on which the land was to be held, the omission of this act would be a breach of the contract, and the grantors might enter. A little reflection will shew, that the grant was not thus qualified.

In order to the construction of the grant or contract, it is necessary to go back to the age when it was made, with a view to ascertain what, at that time, was meant by the words planting and plantation, when applied to such a subject matter. We are now to investigate the meaning of expressions, used a century and a half since, which then had a peculiar intent, that has become obsolete. By the word to plant, was thcri intended, when applied to a tract of land, to settle, or to establish; and aplantation, the derivative of planting, denoted sometimes a colony, and sometimes a farm or cultivated estate. Thus, in the charter of 1662, the colony of Connecticut was called “ a plantation,” and its Northern boundary was the line of the “Massachusetts plantationand in the act of 1685, the township of New-Haven was empowered to manage its “ plantation affairs,” — meaning, undoubtedly, that it might act in all the concerns of the town.

When the General Court of the colony of New-Haven granted to thirty-two individuals a tract of land for the purpose of planting, no more was intended, than that it was conveyed to them that they might establish themselves thereon, and cultivate their settlement or small plantation, as they should think proper. Of consequence, they had as good right to locate the grant in part on a highway, from which they might derive accommodation, as they would have, at any subsequent period, to grant a right of passage over their lands.

The defendants are bounded on Dragon river at high-water mark ; and they claim, that they have legal right to occupy the shore in front of their land, and for commercial purposes to erect buildings upon it. Whether this position is correct, is the only remaining question in the case. I shall not recur to the various topics expatiated on, in the able and elaborate argument of the learned counsel on both sides, upon the matter in question. I place myself on ground more narrow, but perfectly satisfactory to my mind.

It was laid down as the law of this state, by Judge Swift, more than thirty years since, in the first volume of his System, (340. 341. 343) that all adjoining proprietors on navigable rivers have a right to the soil covered with water, as far as they can occupy it, i. e. to the channel, with the exclusive privilege of wharfing and erecting piers in front of their land, but with this qualification, that they do not impede the navigation of the water. By this expression I do not understand, that the proprietors alluded to were seised, but that they had a right of occupation, properly termed a franchise. 1 Swift’s Dig. 109.

In the case of Peck v. Lockwood, 5 Day 22, the plaintiff claimed title to the shore of navigable water, being flats between high and low water mark, by deeds, one bounding him South by the water, and the other Southerly by the cove. The action was trespass for the taking of shell-fish between high and low water mark ; to which the defendant justified, on the ground that the fishery was of common right; and the justification was sustained. In delivering the opinion of the court, Reeve, J. said : “ The defendant denies, indeed, thet the place in question was covered, by the plaintiff’s deeds, as set forth in the case stated. I shall lay this question out of the case, by only observing, that I entertain no doubt but that the flats were included in the plaintiff’s deed so as to convey to him the right of soil.” I cite this as the opinion of a respectable judge, and not of the court ; and although the expression is somewhat equivocal, I consider it as equivalent only to the established law, as declared by Judge Swift

That the law, as I have stated it, is not now to be questioned, the usage of the owners of land to high water mark, on navigable streams, in front of their land, to erect wharves, “ time whereof the memory of man runneth not to the contrary,” is conclusive evidencce. It stands on the same ground of general usage, which is at the foundation of the common law.

The right of individuals to use the soil of the shore, subject to the paramount rights of the public, so far as my information extends, has never, until now, been disputed. The exercise of it, in all our towns, bounded on navigable waters, and the enjoyment of estates under it, is known to every one. On the death of a land-owner to high water mark, his estate in the shore and the erections upon it, has descended to his heirs ; and thus estates have been uniformly settled. Angelí on Tide Waters, chap. VIII. p. 125 & seq.

On the part of the public, no objection has been made. The interest of navigation has been subserved, and the consequences have been altogether salutary.

It necessarily results, that the defendants have title to the land demanded ; and for this reason, as well for deficiency of title on the plaintiffs’ part, the judgment below was correct.

Peters and Lanman, Js. were of the same opinion.

Brainard, J. having been absent when the cause was argued, and Daggett, J., having been of counsel in the cause, gave no opinion.

New trial not. to be granted.  