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NEW JERSEY V. DELAWARE, 291 U. S. 361 (1934)

U.S. Supreme Court

New Jersey v. Delaware, 291 U.S. 361 (1934)

New Jersey v. Delaware

No. 13, original

Argued January 9, 10, 1934

Decided February 5, 1934

291 U.S. 361


1. The boundary between Delaware and New Jersey, within a circle of twelve-miles about the town of New Castle, is the low water mark of the Delaware River on the East, or New Jersey, side, and below the circle it is the thalweg or main channel of navigation in Delaware River and Delaware Bay. Pp. 291 U. S. 363, 291 U. S. 385.

2. Delaware's title to the river bed within the circle is derived as follows:

(1) From a feoffment, describing the Delaware territory within the circle, including the river, its islands, and soil, made by the Duke of York to William Penn, August 24, 1682, when the present territory of Delaware, having been taken over from the Dutch, was governed as a dependency of the Government and Colony of New York under governors commissioned by the Duke. P. 291 U. S. 364.

(2) Letters patent, March 22, 1682/3, from the Crown, granting to the Duke of York the identical lands and waters described in the deed of feoffment, and inuring to the feoffee by virtue of a covenant for further assurance contained in the deed of feoffment. P. 291 U. S. 365.

(3) Confirmation of the title by practically uninterrupted possession of the Delaware territory on the part of Penn and his successors, as Proprietaries and Governors, from the date of the feoffment to the Revolution. P. 291 U. S. 368.

Page 291 U. S. 362

(4) Succession of the Delaware to dominion over the same territory. P. 291 U. S. 370.

3. Early Acts and Resolutions of the Legislature of the State of Delaware attacking the right of the Penns to the vacant and uncultivated lands within the state and for that purpose declaring that the right of soil was, at the date of the Treaty of Paris, in the British Crown, and passed by that Treaty to the citizens of the state, had no effect, either as an estoppel or as a practical construction, upon the ancient boundaries of the colony and state as laid down originally by the letters patent of 1683. P. 291 U. S. 371.

4. The letters patent of 1683 were not surrendered. P. 291 U. S. 373.

5. The Crown had power to grant away the soil beneath navigable waters as an incident to a grant or delegation of powers strictly governmental. P. 291 U. S. 373.

6. Acquiescence by Delaware in wharfing out by riparian proprietors from the New Jersey side did not affect her sovereign title to the riverbed within the circle. P. 291 U. S. 375.

7. Acts of dominion by New Jersey over the riverbed beyond the low water mark, within the twelve mile circle, such as service of process, assessments for taxation, the making of deeds, etc., could not serve to alter the boundary, not having been acquiesced in by Delaware. P. 291 U. S. 376.

8. The compact between New Jersey and Delaware of March, 1905, relating to riparian rights, service of process, and rights of fishery, did not affect the boundary. P. 291 U. S. 377.

9. When New Jersey and Delaware became independent states, the title to the soil of the river below the circle and to the soil of the bay had not been granted, but still was in the Crown of England, and the division of these waters is to be determined by the principles of international law. P. 291 U. S. 378.

10. The modern rule of international law divides boundary rivers between states by the main channel of navigation, if there is one, rather than by the geographical center, and applies the same doctrine of equality to estuaries and bays in which the dominant sailing channel can be followed to the sea. P. 291 U. S. 379.

11. The doctrine of thalweg is applicable between states of the Union where the boundary in question has not been fixed in some other way, as by agreement, practical location, prescription, and it applies even as between states that existed before the doctrine became fully established in international law. Pp. 291 U. S. 380, 291 U. S. 383.

12. Delaware's claim that there is not, or was not in 1783, any definite channel of navigation down Delaware Bay, and her contention that

Page 291 U. S. 363

the geographical center should be made the boundary in the river below the circle to avoid a sharp and inconvenient turn where the river meets the bay, are rejected. Pp. 291 U. S. 379, 291 U. S. 383.

Final Hearing on the report of William L. Rawls, Esq., Special Master, in a suit to establish the boundary between the two states. Leave was granted to file the bill of complaint in this case on June 3, 1929 (279 U.S. 825), and it was filed on June 4, 1929. The defendant's answer was filed on October 7, 1929, and on January 8, 1930 (280 U.S. 529), the Special Master was appointed and the case referred to him. His report was filed October 9, 1934, and the cause was argued on exceptions to that report.

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