author: Mr.- Justice DANIEL

text:
    Samuel Sample, Israel W. Pickins, and Burwell Scott, Appellants, v. Shadrach Barnes.
    Where there was a judgment át law against a defendant in Mississippi, and he sought relief in equity, upon the ground that the consideration of the contract was the introduction of slaves into the State, and consequently illegal; a court of equity will not grant -relief, because the complainant was in pari delicto with the other party.
    Moreover, such a defence would have been good at law, and the averments, that deception was .practised to prevent the complainant from making the defence, are not sustained by the evidence in the case. And, further, after the judgment, the complainant' gave a forthcoming bond, thus recognizing the validity of the judgment.
    This was an appeal from the Circuit Court of the United States for the Southern District of Mississippi.
    The facts are all stated in the opinion of the court.
    It was argued,-in a printed brief, for the appellants, by Messrs. Walker, Freeman, and Volney E. Howard. No counsel appeared for the appellee.
    The argument consisted chiefly in comments upon the testimony, and contending that giving a forthcoming bond did not recognize the validity of the judgment.
    Tne giving and forfeiture of the forthcoming' bond aid not deprive the1 party of his right to a decree for a new trial at law. It is, in legal effect, little more than the ordinary bond of replevin. There was no judicial proceedings on the forfeiture, and no right, under the laws of Mississippi, to inquire into the irregularities, errors, or frauds of the original judgment. -The giving of the bond therefor did not operate a delay in presenting his defence at law. He could only make it in equity.
    It has been decided, in Mississippi, that the giving and forfeiting of a forthcoming bond operates as an extinguishment of the original judgment. Biit this has been held -with reference to judgment liens and process. The courts would not, of course, permit an execution on the original judgment, and on the statutory judgment on the forthcoming bond, or sustain liens on both judgments. The courts of that State, however, have fully recognized the principle, that the statutory judgment rested entirely on the judicial judgment, and have held that the former could n'ót be supported without the latter, and became void' on its reversal. Hoy v. Couch, 5 How. Miss. Rep. 188. If; therefore, the appellant had a good pause for a new trial in chancery, he did not'- lose it by giving the forthcoming bond.- So far as the merits and the equity is concerned, both proceedings are but one judgment. The statutory proceeding is only held a judgment, as á mere legal fiction, and cannot, stand in the way of a court of equity.
   Mr.- Justice DANIEL

delivered the opinion of the court.

In their bill, filed in the Circuit Court, it is alleged by the appellants that, in the month of October, 1836, the appellee, Barnes, in conjunction with one Dunett, introduced from other States of the Union into the State of Mississippi, and in violation of her constitution, arid laws, a number of negro slaves, for the purpose of being sold as merchandise. That, in execution of the design for which they were introduced, a -number of those slaves were sold by the appellee to one Thomas B. Ives, from whom he took, in payment, a bill of exchange, bearing date in October, 1836, drawn by Ives on N. and J. Dicks, of New Orleans, and indorsed by the appellant, Sample, mid one G, A. Thompson. That this bill, being presented first for acceptance and subsequently for payment, was, in each instance, refused by the drawees, but was not protested- either for non-acceptance or non-payment. That, after these transactions, upon some agreement between Barnes and Ives, a second bill of exchange was, in 1837, drawn by the latter upon the firm of Ford, Markham, & Co., for $5,916.66, at ten months after date, and was indorsed by the appellant, Sample, and by George A. Thompson, the in-' dorsers of the previous bill, and was substituted' in lieu thereof. That this second bill was not paid; but whether it was protested, or whether notice of its dishonor was ever given, the appellant, Sample, states that he was unable to recollect. That Barnes, being urged by Sample to sue Ives immediately for .the amount of the second bill, instead of complying with this direction, took a deed of trust oh certain property of Ives, stipulat-' ing in this deed to give further time for the payment of .the bill; and that this deed of trust, and the agreements therein contained, were made without the knowledge and against the consent and directions of the appellant, Sample, and in fraud of his rights as a surety. That a suit having been instituted in the Circuit Court of the United States for the Southern District of Mississippi, against Sample, as the last indorser of the bill of Exchange drawn on Ford, Markham, & Co.; the said Ives, upon information- being given' him of that fact by Sample, assured him that he need not feel any -uneasiness on that account, as he, Ives, had employed able counsel to defend him in that suit. That, subsequently to this assurance. from Ives, in a conversation of the appellant, Sample, with Barnes, the latter pro miseá him, that, if Ives would confess a judgment in the State court for the amount of the bill, he, Barnes, would' dismiss the suit he had instituted against the appellant as indorser of that bill That, upon communicating to Ivés the proposition of the appellee, Ives professed his perfect readiness to comply with, that proposal, and Barnes • then parted with the appellant, with the professed purpose of obtaining from. Ives a confession of judgment, and at the same time agreed with the appellant, Sample, that, in the event of a failure by Ives to give siXcli-confession, he would inform Sample them'-fi in order that they, conjointly, might endeavor to obtain'from Ives a fulfilment of his promise. That Barnes omitted to give information ,'of. the refusal on the part of Ives; but' permitted the appellafit, Sample, to remain under the impression that a confession of judgment had been given by Ives, until after, the commencement of the Circuit Court,- in the month of May, 1839,- when the appellant, Sample, was informed by Barnes that Ives was insolvent. That, by- these circumstances, and especially by the conduct of Barnes, Sample was thrown- off his guard, and a judgment by default was, in consequence thereof, rendered against him at the May term of the Circuit Court, in 1839, for the sum of ¡$6,822.62, and the costs of suit. • That, execution having been sued out on this' judgment,” the- appellant,' Sample, in conformity with advice given him, had, with the other appellants,' Pickins and Scott, as his sureties, executed a forthcoming bond for the delivery to the marshal of the property therein named; which bond, having been forfeited, operated as a judg-ment, and execution thereon had been sued out, and had been levied on the slaves and other personal property of Sample.

Upon the -foregoing statements, the appellants prayed, that the original contract for the sale of the slaves by Barnes, and all the undertakings' and liabilities growing out of that sale, might be declared to be void as having been in violation of the constitution and laws of Mississippi; and that for this cause, affecting the character of the contract, and by reason too of the fraud and dépéption imputed -by the bill to the appellee, Barnes, with reference to Sample, the judgments ajad executions obtained for-his benefit might be perpetually enjoined.-

"Upon the 24th of April, 1840, an injunction was awarded m*appellants by the Judge of the District Court of the United States for the Southern District of Mississippi. *

To that portion of the bill which charges the introduction of slaves in violation of. -the constitution and -laws of Mississippi, the appellee declines to answer, as that charge included the liability to á criminal prosecution. To this refusal of the appellee no exception was taken, either in the pleadings or at the hearing of the cause. To every other charge in -the bill the answer-is directly responsive, and fully .denies- every material allegation. And with respect to all the charge’s, inclusive of the first, the testimony adduced by the complainant below, falls far short of sustaining any one of them. It is déemed loose, vague, and immaterial. Nay, the very contract with. Ives, filed as an exhibit with the bill, and which is alleged to have been an agreement for .indulgence to Ives, to the prejudice of the rights of Sample,, absolutely, overthrows this assertion, and is shown upon its face, and by its terms and object, to have been simply an additional security from Ives, operating, if at all, for the advantage, of Sample.; a security too,- which the .grantee, in that instrument had the right to enforce immediately upon failure to pay the bill of exchange drawn on Ford, Markham, & Co.

Upon the hearing of this cause before the Circuit Court at the November term of 1848, the injunction which had been awarded the appellants was dissolved, -and th'e bill dismissed with costs. For the examination of -that decree upon appeal, this Cause is now- before us.

. This case is then left to be decided upon its features, as disclosed in the bill and answer; ándthe application to these of a few settled and familiar principles of equity jurisprudence, will at once determine its fate. And first with respect to the intriri-: sic merits of the appellant’s original claim to exemption from liability ; and secondly, as to the degree or extent in which such claim, if ever existing, has been affected by his own conduct, as evincing either the. assertion or. the surrender of that claim. The bill commences by charging the introduction and sale of slaves within the State of Mississippi, in violation of. the constitution and laws of that State, .as the essential ground' of impeachment of the-original contract and of Sample’s exémption from liability accruing therefrom. Yet it is somewhat singular, thab whilst urging this objection and whilst admitting his participation in the sale, by giving it the sanction of his .name and credit, he is entirely silent as to any knowledge by him as to .the illegality of a transaction in which he bore so important a part. He certainly possessed, at .some period of .time, knowledge of the character of that transaction; and if his knowledge reached, back to its- origin' and purposes, or to the date, of his own participation therein, he must be viewed ás standing in .pari delicto with all similar actors therein — a position which’, however -it might shield him against attempts from associates in wrong, so far as these should be urged through the instrumentality of-courts of justice, can invest him with no' rights, either at law or in equity as against advantages acquired by his confederates. The appellant,. Sample, was certainly-bound to show/himself clear of. the taint of a transaction which he denounces as illegal and fraudulent, but in which he shows-that hé has mingled from its inception, and which Ee deliberately ratified at an interval of six months after his first participation in it. His failure to do this, if his denunciation of the transaction be-taken as', title,-. must be decisive1' of his; fate before .a tribunal which lends its. aid. or countenance, to those only who. can present themselves with pure hands, and who are free from suspicion.

The rule, as applicable to the position of this party, a rule believed to be without exception, has been distinctly announced by this court in a case very similar in most of its features-to the one now before Us; for that, like the.present, was a case in which the contract was impeached for precisely the same reason for which the interposition of equity was here invoked; and in that, too, as in this instance, after the omission to set up a defence at law.. "We allude to'the case of Creath’s Administrator v. Sims, in the 5th of Howard, where this court, on page 204, have thus announced the rule by which courts of equity are governed. “ Whosoever,” say they, “ would seek admission into -a court of equity must come with clean hands, and such a court will never interfere in opposition to conscience or good faith. The effect of these principles upon the statements of the compla ,n-.ant is obvious upon the slightest consideration. The complainant alleges that the obligation to which he had voluntarily become a party was intentionally made in fraud of the law, and for this reason he prays to be relieved from its fulfilment. This prayer, too, is addressed to a court of conscience, to a court which touches nothing which is impure. The condign and appropriate answer from such a tribunal to such a prayer is this, that, however unworthy may have been the conduct of your opponent, you are confessedly in pari delicto; you cannot be permittéd here to plead your own demerits: precisely therefore, in the position in which you have placed yourself, in that position we must leave you.” The attitude of the appellant, Sample, in connection with this aspect' of the case, would of itself alone be conclusive against his application to equity for relief; but as this party has adduced other reasons upon which he has supposed himself entitled to equitable interposition, it may not be out of place to show their utter- inconsistency with the very rudiments of equity jurisprudence;- with principles so familiar to the courts and to the profession as to render their particular annunciation scarcely necessary. The defence now attempted to be set up by Sample, viz.: the illegality under the constitution and statutes of Mississippi of the consideration for which the two bills of exchange were given, if true, was a legal defence, to be availed of in the action at law by plea or demurrer. Of this principle he seems to be aware,-and therefore he( endeavors to escape from its operation by attempting to fix upon Barnes certain practices by which he, Sample, was prevented from making a proper defence in the pction against him in the Circuit Court; but with respect to the testimony adduced to establish such alleged practices, :it may be remarked in the first plabe, that it does not make them out as they are averred by the bill to have occurred, and in the next place, admitting the averments in the bill, with respect to the practices objected against Barnes after'the institution of the suit at law, supposing them to have occurred as stated In the bill, they could have formed no valid obligation upon Barnes to surrender, without consideration or equivalent, his legal rights, nor any dispensation to the appellant, Sample, from his duty to guard his interests in the pending litigation in which he was a party. Barnes had no power to compel a confession of judgment by Ives; and even if such confession had taken place, there could be no propriety in requiring Barnes to substitute for his demand, upon a solvent debtor, a judgment against another who was not solvent.

The appellant, Sample, appears to hqve been guilty of the. grossest neglect and disregard of that diligence which the law requires at the hands of all suitors, and from the consequences of which they cannot be rescued consistently with the rights of others or the order of society. The law, as applicable to such neglect, is plainly declared in the case of Creath v. Sims, already quoted, in which this court have said that a court of equity will never be called into activity to remedy the consequences of laches or neglect, or the want of reasonable diligence. Whenever, therefore, a competent remedy or defence shall have existed at law, the party who may have neglected to use it, will never be permitted here to supply the omission, to the encouragement of useless and expensive litigation, and perhaps to the subversion of justice.”

How, then, shall the conduct of the appellant, Sample, be reconciled with the principles by this court so emphatically announced ? He not only omits to insist upon his legal defence in the suit at law against him in the Circuit Court, but, after the judgment in that court by default, he executes a delivery bond, with the other appellants as his sureties; thus, after the firs} judgment against himself by default, the procures a second judgment against himself and his sureties as it were, by confes. sion. This party has, by his conduct, foui times recognized the claim against'him by Barnés — twice by his indorsement upon the bills- drawn on N. and J. Dicks & Co , and on Ford, Markham, & Co.; in the third instance by permitting the judgment by default; and fourthly, by executing the forthcoming bond, which he knew was , tantamount to a confession of judgment •for the demand.

Upon these grounds, solely, and independently of the- original consideration on which the undertaking by Sample was founded and supposing that consideration to have been invalid, if-inquired into at the proper time,'this appeliant must, by his ct>n-duct, be regarded as haviftg waived all right of inquiry into that consideration, nay, rather as having repeatedly admitted its validity. ' To permit him, after so doing, to contradict all that he has repeatedly and formally declared, would be to allow him to falsify his solemn acts, to trifle with the settled rules of law’and the practice of the courts, and would lead to endless litigation. We therefore order that the decree of the Circuit Court, dissolving the injunction and dismissing the bill in this case, be, and the same is hereby, affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court' of the United States for the Southern . District of Mississippi, and was argued by Counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this.cause be, and the same is hereby, affirmed with costs.


source: Caselaw Access Project

author: Mr. Justice CATRON

license: Public Domain

text:
    William F. Raymond’s Lessee v. Nicholas Longworth.
    Tr the State of Ohio, it is not a sufficient description of taxable lands to say, “ Cooper, James, 5-acres, section 24, T. 4,,3?. R. 1.” A deed made in consequence of a sale for taxes under such a description is void. The courts of Ohio have so decided, and this court adopts their decision.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Ohio.
    It was an ejectment, brought by Raymond, for the following property, viz.: — All that certain tract of land ip the western part of, Cincinnati, commencing thirty feet north of Nicholas LongWorth’s individual property, on the west side of Mill Creek road, thepce north, on the lipe of said road,'five hundred feet, and extending back, the same width, at right angles with said road, four.hundred feet.
    The facts are set forth in the opinion of the court.
    It was argued by Mr. Chase, for the plaintiff in error, and submitted, on printed argument, by Mr. Stcmberry, for the defendant in error.
    •The bill of. exceptions brought up' other .points besides the one upon which the judgment of this court rested; but it is not necessary to notice them.'

      The following authorities were cited by Mr. Stanberry, in support of the ruling of the Circuit Court.
    The entire, record having been admitted .in evidence, the defendant requested the court to instruct - the jury, “that the descfiption of the lot upon the. duplicate, as appears by the abstract aforesaid,” (Exhibit D,) “ was not a pertinent description.of the lot, such as the statute required; and, therefore, that the forfeiture to the State of Ohio was illegal and void, and the subsequent sale, by the- auditor of Hamilton county, tó Charles Phelps, was also void.”
    This instruction, as prayed by the defendant, was given by the court; and the plaintiff excepted to this opinion of the court also.
    On the validity of this exception turns the principal question in the case.
    In behalf of the defendant, and in support of the ruling of the court on this point, we deem it unnecessary to do more than point put the utter want of certainty in the description of the land, as contained upon the duplicate for taxation, and in the advertisements for sale and returns, as exhibited throughout the abstract from the record (Exhibit D,. aforesaid); and, having done so, refer the court to the uniform course of decision in Ohio upon the subject, — invariably holding such descriptions invalid, and forfeitures and sales under them void. Indeed, all this is fully and sufficiently done in the circuit report of the present case. . 4 McLean’s Rep. 481; and in the case of Miner’s Lessee v. McLean’s Assignee, 4 McLean’s Rep. 138.
    We shall, therefore, only briefly state, that the description of the lands, as shown by this record, upon the duplicate of taxes, and in the various returns and advertisements,'is thus throughout :
    “ Cooper, James, 5 acres, S. 24, T. 4, fr. R. 1, Cincinnati. Value $830. _ Amount due, $-.”
    This is to be read substantially thus : — “ Five acres in section 24, fractional range 1, Cincinnati, valued at 830 .dollars,” &c.
    ■ The uncertainty of description, which renders the title void, ■consists in its being wholly impossible to know in what part of the section this particular lot of five acres is located. Entire sections contain 640 acres, and. these-five acres, so far as appears, may as readily be in one part as another.
    Such descriptions' have been holden void by the Supreme Court of Ohio, in the following cases: Lessee of Massie’s Heirs v. Long et al., 2 O. R. 287; Lessee of Treon v. Emends, 6 O. R. 391; Lessee of Laferty v. Byers, 5 O. R. 458. See also, 15 O. R. 134; 16 O. R. 24.
   Mr. Justice CATRON

delivered the opinion of the court.

Raymond sued Long-worth, in the Circuit- Court of Ohio, for a piece of land, containing about five acres, lying in the western part of the city of Cincinnati. The plaintiff claimed title, under a sale for State taxes, for the year's 1837 and 1838, made by the Auditor of Hamilton county, to Charles Phelps, for eighty dollars.

The land had been listed for taxation, as the property of James Cooper. The description on the tax-list, and in the subsequent return to the State Auditor, and in the advertisements of the property for sale, was as follows: — “ Cooper, James, 5 acres, see. 24, T. 4, F. R. 1.” The'.taxes not having been paid, and the land being advertised and offered for sale, by the Auditor of Hamilton county, and no bid being made for it, it was returned to the General Auditor, as" forfeited to the State, and he again ordered the land to be advertised and sold. On the trial beloAv, it was insisted that the description of the premises was vague on the tax-list', and in the duplicate returned to the State Auditor, and in the advertisements offering the land for sale; that no forfeiture could be founded on such description, nor a valid sale be made. And so the Circuit Court instructed the jury, pronouncing the County Auditor’s deed to Charles Phelps .void. And the question presented is, whether the description was sufficient.

The uncertainty consists in not setting forth in Avhat part of section 24 the five acres are situated.

.It is settled, by the Supreme Court of Ohio, that the tax-list, and the duplicate transmitted to the State Auditor, as well as the advertisement, must describe the land so that its identity may be ascertained from the description, either by the owner, who wishes to pay the taxes before it is offered for sale,' or that he may redeem after a forfeiture is pronounced; or that the public may be assured what is offered for sale

We refer to the description in the leading cases, where the' sales were pronounced void for want of sufficient certainty. In Mathews v. Thompson, 5 Ohio, the description was, “ 100 acres, sec. 4 township 7, range 4.” In 5 Ohio, 458, “ Haines, John, No. entry, 4401; original quantity, 170 acres; quantity taxed, 70 acres.” In 6 Ohio, 399, “ Sixty acres, part of the N. half of S. 13.” In 16 Ohio, 25, there had been listed 333 acres, as part of an original survey for 1,000 acres, without specifying in what part of the 1,000 acres the 333 acres lay. In each of the cases cited, it Avas held, that the description was vague and the sale void. Here, the five acres are fisted, and advertised as part of section 24, and the description is equally' vague as any of the foregoing. And, as the State courts have settled what certainty is required, it is our duty to follow their decisions on the State laws, regulating proceedings in cases of tax-sales. We accordingly order the judgment of the Circuit .Court to be affirmed.

Order.

This' cause came on" to bé heard on the transcript of the record from the Circuit Court of the United States for the District of Ohio, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged .by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.


author: Mr. Chief Justice TANEY

text:
    David B. Herman, Plaintiff in Error, v. James Phalen; Same v. Same.
    The case of League v- DeYoung and Brown, (11 Howard, 185,) considered and again established.
    These two cases were brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana, and were argued together by Mr. Allen and Mr. Ovid F. Johnson for the defendant in error, No counsel appeared for the plaintiff in error.
    The points in the case were argued in the Case of League v. DeYoung, 11 Howard, 188, to which the reporter refers.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

These two cases have been argued together and depend upon the same principles. They were decided in the Circuit Court, before the opinion of .this court was pronounced in the'case of League v. DeYoung and Brown, reported in 11 Howard, 185. In that case, all of the'questions which árise in the cases'before us were fully considered and decided; and that decision is adverse to the doctrines now contended for by the defendant in error. Upon reviewing the opinion in League v. DeYoung and Brown, we see no reason for changing it in any respect; and these two cases must therefore be reversed, and a mandate issued to the Circuit Court, directing the judgment in ea.ch of them to be reversed, and the judgment entered for the plaintiff in error.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that, the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed,, with costs, and that this cause be, and the same is hereby,-remanded to the said Circuit Court, with directions to enter judgment for David B.. Herman;the plaintiff in error.


author: Mr. Justice GEJEB, Mr. Justice CATRON. Mr, Justice DANIEL.

text:
    George Rundle and William Griffiths, Trustees of the Estate of John Savage, deceased, Plaintiffs in Error, v. the Delaware and Raritan Canal Company.
    Bjr tic law of Pennsylvania, the Biver Delaware is a public navigable river, held by its joint sovereigns in trust for the public.
    Biparian owners, in that State, have no title to the river, or any right to-divert its waters, unless by license from the States..
    Such license is revocable, and in subjection to the superior right of the State, to divert the water for public improvements, either by the State directly, or by a corporation created for that purpose.
    The proviso to the provincial acts of Pennsylvania and New Jersey, of 1771, does not operate as a grant of the usufruct of the waters of the river to Adam. Hoops and ... his assigns, but only as a license, or toleration of his dam.
    As,"by the laws of his own State, the .plaintiff could have no remedy against a corporation authorized to take the whole waters of the river for the purpose of canals, or improving the navigation, so, neither can he sustain a suit against a corporation created by New Jersey for the same purpose, who have taken part of the waters.
    The plaintiff's being but tenants at sufferance in the usufruct of the water to the two. States who own the river as tenants in common, arc not in a condition to question the relative rights of" either to use its waters without consent of the other.
    This case is not intended to decide whether a first licensee, for private emolument, can support an action against a later licensee of either sovereign .or both, who, for. private-purposes, diverts the water to the injury of the first.
    . This case was brought up; by writ of error, from the Circuit Court of the United States 'for the- District of. New Jersey.
    The facts in the case are set forth in the opinion of the court..
    It was argued in print by Mr. Ashmead and Mr. Yroom, for the plaintiffs in error, and by Mr. John M. Read orally, for the defendants in error. .There was also a printed argument -upon the same side, submitted by himself and Mr. Green.

    The arguments, upon both sides, contained historical accounts of the legislation of Pennsylvania and New Jersey, on the subject of .the River Delaware, and the various compacts'and negotiations between them. It. is impossible, in the report of a law case, to give an explanation of these transactions, commencing beforé the Revo ution. Those who may have occasion to investigate the matter minutely; would do well to obtain from the counsel their respective arguments. All that will be attemptéd, in this report, will be to give an account of the points which were made.
    The declaration charged the Canal Company with having,
    T. Erected a dam in the River Delaware, above the works .of the plaintiffs, and, by means of it, obstructed and penned up the waters of the river.

      2. With digging a canal, and diverting the waters of the river into it, and so leading them into the State of New Jersey.
    3. With cutting off’ the streams and brooks which theretofore had been tributary to the said River Delaware, and preventing them from flowing into it.
    4. With using the waters, taken from the. river, to supply the said canal, and to create a water power, from which they supply various mills, manufactories, and other establishments, with -water, for the sake of gain.
    The judgment of the court upon the demurrer being that the plaintiffs had no right of action, the counsel for the plaintiffs in this- court assumed the following as. the grounds upon which the court below founded its decision, which grounds they severally contested.
    The points ruled in the court below, and of which the plaintiffs. complain as being erroneous, are:
    1. That the authority under which the dam of Adam Hoops has been kept and maintained in the River Delaware, since the year 1771, was not á grant, but a license, revokable at the pleasure of New Jersey alone, and, at best, impunity for a nuisance.

      2. That the plaintiffs, who claim as the assignees of Adam .Hoops, for the diversion of the water from their mills, cannot recover, because their works are situated in the State of Pennsylvania, and not in New Jersey, and that the claim for damages must be regulated by the .rule established by the Pennsylvania courts, which rule is opposed to the one recognized in the State of New Jersey, and applied by the Supreme Court to these defendants in error in a similar case.
    3. That it is not competent for the plaintiffs to question the authority of New Jersey, to take the waters of the Delaware for her public improvements, without the consent of Pennsylvania.

      First Point. With respect to the first point, the counsel for the plaintiffs in error contended,
    1. That the said acts were, in form, substance, and legal effect, a grant, arid not a license. • They then commented on the acts, and cited the following authorities:
    An authority.given, will operate by way of license or grant, according to its nature and the intention of the parties. Thus, in 15 Viner’s Ab. Tit. Lease, (N.) Pl. 1, it is said, “ That if a man license me to enter into his land, and to occupy it for a year, half year, or such like, this is a lease and shall be so pleaded.” A confirmation of a title by act of Congress, (which was the least effect to be given to the acts of 1771 and 1804,) not only renders it a legal title, but furnishes higher evidence of that fact than a patent, inasmuch as it is a direct, whereas a patent is only the act of its ministerial officer. Grignon’s' Lessee v. Astor, 2 Howard, 319; Sims v. Irvine, 3 Dallas, 425 ; Patton v. Easton, 1 Wheaton, 476; Strother v. Lucas, 12 Peters, 410. In this latter case, at page 454, it is said by Judge Baldwin, delivering the opinion of the court, “ that a grant may be made by a law, as well as a patent pursuant to a law, is undoubted, 6 Cr. 128; and a confirmation by a law, is as fully, to all intents and.purposes, a grant, as if it contained in terms a grant de novo.”

    2. If the acts of 1771 are to be regarded as a technical license, such license is not revocable by the parties granting it, or either of them, it being a license not executory, but executed, on the faith of which large expenditures had been incurred, previous to the alleged revocation by the State of New Jersey, in 1830, by the passage , of the act chartering the Delaware and Raritan Canal.
    The authorities are clear and conclusive, that, a lieensé by one man to another, to make use of his' land for purpose s requiring expenditures rf money, .and contemplating permanence, is, in effect a grant, and is not revocable in its nature. Thus, in Rerick v. Kern, 14 S. & Rawle, 267, it is said that, “ permission to use water for a' mill, or or any thing else that was viewed by the parties as a permanent erection, will be of unlimited dura.tion and survive the erection.itself, if it should be destroyed, or fall into a state of dilapidation.” Although a license .executory may be revoked, yet .a-license executed cannot be. Winters. Brockwell, 8 East, 308. Lord Ellenborough says, in this case, “ that he thought it unreasonable, that, after a party .had-been led to incur expense, in consequence of having obtained a license from another to do an act, and that the license had been entered upon, that either should be permitted to recall his license.” In Taylor v. Waters, 7 Taunton, 374, it is decided that a license' granted on consideration cannot bé revoked Liggins v. Inge, 7 Bingham, 682, (20 English Com. Law. 287,) decides that where the plaintiff ’s father,, by ‘ oral license, -permitted the. defendant to lower the bank, of a river, and to make a weir above the plaintiff-is mill, whereby less water' than before flowed to the plaintiff’s mill, the plaintiff could not sue the defendants for. continuing the weir; the court holding that the license in that case, being executed, was not countermandable
      by the party who gave it. So, in Wood v. Manly, 11 Adol. & Ellis, 34, (39 Eng. Com. Law 19,) it was held that a license to enter upon land to take away property purchased thereon, was part of the consideration of the purchase, and could not be revoked. The case of Webb v. Paternoster, (Palmer, 151,) asserts the general principle, that an executed license is not countermandable. Rerick v. Kern, (14 S. & Rawle, 267,) was the case of a license to use a water power, given without any consideration, and held not revocable. The court said the license “ was a direct encouragement to spend money,” and “it would be against all conscience to annul it,” and further, that “ the execution- of it would be specifically enjoined; and that the party co whom the license was granted would not be turned round to his remedy for damages.” . “ How very inadequate if ^muld bp. in a case like this,” says the court, “ is perceived by considering that a license, which' has been followed by the expenditure of ten thousand dollars, as a necessary qualification.for the enjoyment of- it, may be revoked by an obstinate man who is not worth as many cents.” Again, it is remarked — “ having had in view an unlimited enjoyment of the privilege, the grantee has purchased, by the expenditure of money, a right indefinite in point of duration.”
    3. If the joint acts of 1771 and 1804, are ever to be regarded as a revocable license, and not as a grant, such license has never been actually revoked by both or either of the State legislatures. The act of 1830, by which the Delaware and Raritan Canal Company was chartered by the-State of New Jersey, contains no .such provision, and a revocation by implication will not be inferred where so great a wrong would be perpetrated on an individual.
    4. Admitting that the State of New Jersey, by the act chartering the Delaware and Raritan Canal Company, intended to revoke the grant or executed- license made to Adam Hoops, and those claiming under him,' it was incompetent for that State to do so.
    If the joint act of the legislatures of the two States be a grant, or, what is the same in legal effect; an executed license, then that grant or executed license is - a contract within the meaning of the constitution, and cannot be impaired by subsequent legislation, Fletcher v. Peck, 6 Cranch, 87; Terret v. Taylor, 9 Cranch, 43. Where a legislature has once made a grant; it is as much estopped by it as is an individual. Such a grant amounts to an extinguishment- of the right of the grantor,' and a contract not to reassert that right. Id. It is a principle applicable to every grant that it cannot effect preexisting titles. Although a grant is conclusive on its face, and cannot be controverted, yet if the thing granted is not in the grantor, no right passes to the grantee. City of New Orleans v. Armas, 9 Peters, 224; New Orleans v. United States, 10 Peters, 662; Lindsey
    Lessee of Miller, 6 Peters, 666.
    Again : If the franchise and privileges, secured to the plaintiffs by.the joint acts of 1771, are the subject of legislative revocation, the revocation must, certainly be as extensive as the license acéorded. It must, to be effectual, be the joint act of both legislatures, and. not the separate act of either. ■ Pennsylvania was no party to the charter granted by New Jersey to the defendants. Indee.d, she,-refused to become such, on the terms proposed by her. . In many respects, this case resembles that of the Chesapeake and Ohio Canal Company v. The Baltimore and Ohio Railroad-Company, 4 Gill & Johns.T. This -was the case of a contest between-the plaintiffs, who claimed under the joint acts of the States of Maryland and Virginia and the United States, and the defendants, who claimed part of the same franchise under a separate act- of the State of Maryland. It was held, that neither Maryland nor Virginia, without the consent of the other, could impair a charter granted by. their previous joint legislation, nor-could they do so even jointly.

      Second Point. The second proposition ruled by the learned. -Judge below, was, that the plaintiffs, who claim as the assignees of Adam Hoops, for the diversion of the water from their mills, cannot recover, because their works are situated in the State of Pennsylvania, and not in New Jersey, and that the claim for damages must be regulated by the Pennsylvania courts, Avhich rule-is opposed- to the one recognized in the State of New Jersey, and applied by the Supreme Court to these defendants in error in a similar case.
    1. The accuracy of this position is denied; because,the action, having been instituted in the Circuit Court of New Jersey, against a New Jersey corporation, to recover damages consequent upon the erection of a public work exclusively within her own soil, the laws of'New .Jersey and the decisions-of its Supreme Court,. must furnish the rule of decision as to the extent of the liability of this corporation for the act complained of, and not the laws and decisions of Pennsylvania, as to the, liability of Pennsylvania corporations.
    2. If the plaintiffs’ claim for damages is to be regulated, py the decisions in Pennsylvania, there is no case of binding authority in the adjudications of-Pennsylvania, which rules this point against them; the doctrine not going to the extent supposed by the learned .Judge.

      Third -Point. The third point ruled by the learned Judge below, is, “ that it is not competent for the plaintiffs to question the authority of New Jersey to take the waters of the Delaware River for her public improvements, without the consent of Pennsylvania, the chennel arid waters of this river being vested in the two States, as tenants in common, arid no one can question the authority of either to divert the water, but the other.”
    (These points were examined and contested.)
    It has been before mentioned, that the briefs of the counsel contained references to numerous historical documents. That filed on the part of the defendants in error was very elaborate, and Mr. Read referred to them in his oral argument. The. summing up was as follows:
    We have thus presented a chroriological detail of the history of the Delaware, and of the legislative negotiation, and.executive action of both States in relation to the river, its navigation, and the various uses of its water for canal or mill purposes ; and we think .it can leave no doubt, in any dispassionate mind, that the plaintiffs in error have no title whatever to claim damages from the Delaware and Raritan Canal Company, for taking water from the river for the use of its canal, under a direct and positive authority grarited by the legislature of New Jersey.
    Adam Hoops’s dam, uniting the riiain land with Bird’s Island, and extending from the head of it into the main' channel of the river, and perhaps one other dam on the Pennsylvania side, were erected by the owners of the/fast land, prior to 1771, without any authority whatever, either from the cj;own, or- the provincial government. Now, these erections being in the “river, and beyond the low-water mark, whether the tide ebbed and flowed there or not, or whether the river was then vested in the crown or the proprietaries, were, by the unqtíestioned law of. Pennsylvania, nuisances, and could have been abated by. individuals, and certainly by the authorized agents of the government.
    The law off Pennsylvania is well stated by Mr. Justice Grier, in this case. “ But the law of .Pennsylvania,” says the learned Judge, “by which the title and rights of the plaintiffs.must be tested, differs materially from that of England and most of the other States of the Union. As regards her large fresh-water rivers, she has adopted the principles of the civil law, in p fference to that of England.” Rundle v. Delaware and Ratitan Canal Company, Wallace, Jr. 297.
    In the case of Carson v. Blazer, the Supreme Court of that State, decided that the large rivers, such as the Susquehanna and Delaware, were never deemed subject to the common law of England applicable to fresh-water streams; but they are to be treated as “ navigable rivers ; ” that the grants of William Penn, the proprietary, never extended beyond the margin of the river, which belonged to the public; and that the riparian owners have, therefore, no exclusive right to the soil or water of such river, ad filum medium, aqua.

    These principles are fully sustained by all the Pennsylvania cases down to the present time, which are cited below, and which also exemplify the doctrine that mere tolerations or licenses on navigable streams, are always in the power of the sovereign, and can be withdrawn, at any moment, without any violation of the constitutional provision.
    These nuisances were in existence at the passage of the act of 9th March, 1771, and, under its general terms, the commissioners named in it, would have been obliged to abate them at once, as artificial obstructions to the navigation, except for the proviso in -the 7th section, which prohibits the commissioners,, therein appointed, from removing or altering the same. The same observation applies to the New Jersey act of the same year.
    “ But,” to use again the language of the learned Judge her low, “ we can discover nothing in the nature of a grant in the words of this proviso.. It amounts to no more than the present toleration of a nuisance, previously erected, or, at most, to a license revocable at pleasure. The doctrine of the cases which we have just quoted, applies to it with full force and conclusive effect; nor can the plaintiff claim by prescription against the public for more than the act confers on him, which, at best, is but an impunity for a nuisance.” 2 Binn. 475; Brown v. Commonwealth, 3 S. & R. 273; Shrunk v. Schuylkill Navigation Co. 14 S. & R. 71; Bacon v. Arthur, 4 Watts, 437; Couvert v. O’Connor, 8 Watts, 470; Ball v. Slack, 2 Wharton, 508, 538; Monongahela Nav. Co. v. Coons, 6 W. & S. 101; Susquehanna Canal Co. v. Wright, 9 Id. 9; Commonwealth v. Church, 1 Barr, 105; Fisher v. Carter, 1 Wallace, Jr, 69; Mayor v. Commissioners of Spring Gardens, 7 Barr, 348; Reading v. Commonwealth, 1 Jones, 201; M’Kinney v. Monongahela Nav. Co. 2 Harris, 66; Henry v. Pittsburg, 8 W. & S. 85; O’Connor v. Pittsburg, Sept. 1851, MS.; Wallace, Jr. 300, 301.
    ' But if there be any doubt on this subject, it is removed by a reference to the agreement of 26th April, 1783, between the two sovereign States of New Jersey and Pennsylvania, then recognizing no common superior, and not affected by any provision afterwards contained ill the Constitution of the United States.
    The acts of 1771 were temporary in their character, and all operations under them ceased from the commencement of the Revolutionary War. The compact of 1783, which is perpetual in its operation, declared “ the River Delaware, from the station point, or north-west comer of New Jersey northerly, to the place upon the said river where the circular boundary of the State of Delaware toucheth upon the same, in the whole length and breadth thereof, is, and shall continue to be and remain a common highway, equally free and open for the use,, benefit, and advantage of the said contracting parties.”
    Such language admits of no dispute. It is a complete and total revocation of all license or toleration, or grant of any'kind to any dams or works erected on the Pennsylvania or Jersey side of the river, which were nuisances ah origine.

    It cannot be supposed that two or more original nuisances were saved out of the general and comprehensive terms of the compact, and that they are. to subsist to all future time as obstacles to any use of the river, by either or both States, which may in any manner affect the works thus placed on the soil and in the waters of the public.
    This view is supported by the unbroken legislation of Pennsylvania particularly — by the ground taken by her commissioners in 1817, and virtually recognized by.those of New Jersey, and by the subsequent agreements of 1829 and 1834, entered into by the commissioners of both States, which treated these wojrks as nuisances, and as not to be regarded in any disposition to be made of the waters of the river, whether by the erection of dams, or for the supply of canal or water power.
    They were in fact treated as if they had no legal existence. Can such a title give a claim for damages upon a company incorporated by a sovereign State of the confederacy ?
    It is also clearly “ not competent for the plaintiffs to question the authority of New Jersey to take the waters of the Delaware for her public improvements, without the consent of Pennsylvania. The channel and waters of this river are vested in the two States, as tenants in common, as we have already seen; and no one can question the authority of either to divert its waters but the other. Pennsylvania wras the first to seize on a portion of their joint property, for her separate use, and is estopped by her own act from' complaint against New Jersey, who has but followed her example. Besides this, mutual consent may be presumed from mutual acquiescence. At all events, the' plaintiff, who is showm to have no-title to the river, or any part of it, and whose toleration or license could at best only protect him from a prosecution, is not in a situation to dispute the rights of either, or claim compensation for a diversion of its waters, for the purpose of the public improvements of either of its sovereign owners.”
   Mr. Justice GEJEB,

delivered the opinion of 'the court.

The plaintiffs in error, who were plaintiffs below, are owners of certain mills in Pennsylvania, ppposite to the city of Trenton, in New Jersey.' These mills are 'supplied with water from the Delaware River, by means of a dam extending from the Pennsylvania shore to an island lying near and parallel to it, and extending along the rapids to the head of tide water.

The plaintiffs, in their declaration, show title to the property under one-Adam Hoops, who had erected his mill and built a dam in the river previous to the year 1771. In that year, the Provinces of Pennsylvania and New Jersey, respectively, passed acts declaring the River Delaware a common highway for purposes of navigation up and down the same, and mutually appointing commissioners to improve the navigation thereof, with full power and authority to remove any obstructions whatsoever, natural or artificial; and subjecting to fine and imprisonment any person who should set up, repair, or maintain any dam or ■obstruction in the same, provided, “ that nothing herein contained shall give any power or authority to the commissioners herein, appointed, or any of them, to remove, throw down, lower, impair, or in any manner to alter a mill-dam erected by Adam Hoops, Esq., in the said River Delaware, between his plantation and an island in the said river, nearly opposite to Trenton; or any mill-dam erected by any other person or persons in the said river, before the passing of this act, nor to obstruct, or in any manner to hinder the said- Adam Hoops, or such other person or persons,, his or their heirs and assigns, from maintaining, raising, or repairing the said dams respectively, or from taking water out of the said river for the use of the said mills and waterworks erected as aforesaid, and none other.”

The declaration avers, that by these acts of the provincial legislatures, the said Hoops, his heirs and assigns, became entitled. to the free and .uninterrupted enjoyment and privilege of the River Delaware for the use of the said mills,.&c., without diminution or alteration by or from the act of said Provinces, now States of Pennsylvania and New Jersey, or any person or persons claiming under them or either of them. Nevertheless, that the defendants erected a dam in said river above plaintiffs’ mills, and dug a canal and diverted the water, to the great injury, &e.

The defendants are a corporation, chartered by New Jersey, for the purpose of - “ constructing a canal from the waters of the Delaware to those of the Raritan, and of improving the navigation of said rivers.” They admit the construction of the canal, and the diversion of .the waters of the river for that purpose, but demur to the declaration, and set forth as causes of demurrer —

“ That-the act. of the legislature of the then Province of Pennsylvania, passed March ninth, in the year of our Lord one thousand seven hundred' and seventy-one, and the act of the then Province.of New Jersey, passed December twenty-first, in the year of our Lord'one thousand seven hundred and seventy-one, as set forth in said amended fifth count, do not vest in the said Adam Hoops, or in his heirs or assigns, the right and privilege, to the use of the water of the River Delaware without diminution or alteration, by or from the act of the then Province, now State, of Pennsylvania, or of the then Province, now State, of New Jersey, or of any person or persons claiming under 'either of them, or of any person or persons whomsoever, as averred in the said amended fifth count of the said declaration. And also, for that it does not appear, from the said amended fifth count, that the same George Rundle and William Griffiths are entitled to the right and privilege to the use of the water of the River Delaware, in manner and form as they have averred in the said amended fifth count of their declaration.

“ And also that, as it appears from the said amended fifth count, that the said River Delaware is a common highway and public navigable river, over which the States of Pennsylvania and New Jersey have concurrent jurisdiction, and. a boundary of said States, these defendants insist that the legislative' acts of the then Province of Pennsylvania and New Jersey, passed in the' year of our Lord seventeen hundred and seventy-one, as set forth in the said amended fifth count, were intended to. declare the said River Delaware a common highway, and for improving the navigation thereof, and that the provision therein contained, as to the mill-dam erected by Adam Hoops, in the said River Delaware, did not .and does not amount to a grant or conveyance of water power to the said Adam Hoops, his heirs or assigns, or to a surrender of the public right in the waters of .the said river, but to a permission only to obstruct the ■ waters of the said river by the said dam, without being subjected to the penalties of nuisance; that the right of the said Adam Hoops was, and that of his assigns is, subordinate to the public right at the pleasure of the legislature of Pennsylvania and New Jersey, or either of them.”

On this demurrer the court below gave judgment for tL*? defendants, which is now alleged as error.

It is evident, that the extent of the plaintiffs rights as a riparian owner, and the question whether this proviso operates as the grant of a usufruct of the waters of the river, or only as a licénse or toleration of a nuisance, liable to revocation or subordinate to the paramount public right, must depend on the laws and-customs of Pennsylvania, as expounded by her own courts. It will be proper, therefore, to give a brief sketch of the public history of the river and the legislative action connected with it, as also of the principles of law affecting aquatic rights, as developed and established by the courts of that State.

The River Delaware is the well known boundary between the States of Pennsylvania and New Jersey. Below tide water, the river, its soil and islands, formerly belonged to the crown; above tide water, it was vested in the proprietaries of the coterminous provinces — each holding ad medium filum aqua. Since • the Revolution, the States have succeeded to the public fights both of the crown and the proprietaries. Immediately after the Revolution, these St . entered into the compact of 1783, declaring the Delaware a common highway for the use of both, and ascertaining their respective jurisdiction over the same. For thirty years after this compact, they appear to have enjoyed their common property without dispute or collision. When the legislature of either State passed an act affecting it, they requested and obtained the concurrence and consent of the o her. Their first dispute was caused by an act of New Jersey, passed February 4, 1815, authorizing Coxe and others to erect a wing dam, and divert the water for the purpose of mills and other machinery. The consent of the State of Pennsylvania was not requested; it therefore called forth a protest from the legislature of that State. This was followed by further remonstrance in the following year. A proposition was made to submit the question of their respective rights to the Supreme Court of the United States, which was rejected by New Jersey. After numerous messages’and remonstrances between the governors and legislatures, commissioners were mutually appointed to compromise the disputes. But they failed to bring the matter to an .amicable conclusion. The dispute was never settled, and the wing dam remained in the river.

In 1824, New Jersey passed the first act for the incorporation of' the Delaware and Raritan Canal Company, for which the company gave a bonus of $100,000. This act requires the consent of the State of Pennsylvania; and on application being made to her legislature, she clogged her consent with 'so many conditions, that New Jersey refused to accept her terms, returned the bonus .to the company; and so the matter ended for that time.

Both parties then appointed commissioners to effect, if possible, some compact or arrangement by which each State should be authorized to divert so much water as would be necessary for’these contemplated canals. ■ After protracted negotiations, these commissioners finally (in 1834) agreed upon terms, but the. compact proposed by them was never ratified by either party.

In the mean time, each State appropriated to itself as much of the -waters of the river as suited its purpose. In 1827 and 1828, Pennsylvania diverted the River Lehigh, a confluent of the Delaware, and afterwards, finding that stream insufficient, took additional feeders for her canal,- out of the main stream of the Delaware. On the 4th February, 1830, the legislature of New Jersey passed the act under which the defendants were incorporated, and in pursuance of which, they have constructed the dam and feeder, the subject of the present suit.

The canals in both States, supplied by the river, are inti-' mately and extensively .connected • with their trade, revenues, and general property — while the navigation of the. river’above tide wajer, ■ and the rapids at Trenton, is of comparatively trifling importance, being used only at-times of the spring freshets, for floating timber down the stream, when the artificial diversions do not affect the navigation. The practical benefits resulting to both parties, from their great public improvements, appear to have convinced them that further negotiations, complaints, or remonstrances, would be useless and unreasonable ; and thus, by mutual acquiescence and tacit consent, the necessity of a more formal compact has been superseded.

The law of Pennsylvania, by which the title and rights of the plaintiffs must b.e tested, differs materially from that of England, and most of the other States of the Union. As .regards her large fresh-water rivers, she has adopted the principles of the civil law. In the case of Carson v. Blazer; the Supreme Court of that State decided, that the large rivers, such as the Susquehanna and Delaware, were never deemed subject to the doctrines of the common law of England, applicable to fresh water streams, but that they are to be treated as navigable rivers; that the grants of William Penn, the proprietary, never extended beyond the margin of the river, which belonged to the public, and that the riparian owners have therefore no exclusive rights to'the soil or water of such rivers ad filum medium aquce.

In Shrunk v. The Schuylkill Navigation Company, the same court repeat the same doctrine; and Chief Justice Tilghman, in delivering the opinion of the court, observes: “ Care seems to have been taken, from the beginning, to preserve the waters of these rivers for public uses, both of fishery and navigation; and the wisdom of that policy is now more striking than ever, from the great improvements in navigation, and others in contemplation, to effect which, it is necessary to obstruct the flow of the water, in some places# and in others to divert its course. It is true that the State would have hud a right to do these things for the public benefit, even if the rivers had been private property ; but then, compensation must have been made to the owners, the amount of which might have been so enormous as to have frustrated, or at least checked these noble undertakings.”

In the case of. The Monongahela Navigation Company v. Coons, the defendant had erected his mill under a license, given by an act of the legislature (in 1803) to riparian owners to erect dams of a particular structure, provided they did not impede the. navigation,” Sic. The Monongahela Navigation Company, in pursuance of a charter granted them by the State, had erected a dam in the Monongahela, which flowed back the water on the. plaintiff’s mill, in the Youghiogany, and greatly injured'it, And it was adjudged by the court, that the Company were not liable for the consequential injury thus inflicted. Thé court, speaking of the rights of plaintiff, consequent on the license granted by the act, (of .1803,) observe: “ That statute gave riparian owners liberty to erect dams of a particular structure, on navigable streams, without being indictable for a nuisance, and their exercise of it was, consequently, to be attended with expense.and labor. But was this liberty to be perpetual, and. forever tie up the power of the State ? Or, is not the contrary to be inferred, from the nature of the license ? So far was the legislature from seeming to abate one jot of the State’s control, that it barely agreed not to prefer an indictment for a nuisance, except on the report of viewers to the Quarter Sessions. But the remission of a penalty is not a charter, and the alleged grant was nothing more than a mitigation of the penal law.”

The case of the Susquehanna Canal Company v. Wright, confirms the preceding views, and decides, “ that 'the State is never presumed to have parted with one of its franchises in the absence of conclusive proof of such an intention. Hence a license, accorded by a public law to a riparian owner, to erect a dam on the Susquehanna River, and conduct the water upon his land for his own private purposes, is subject to any future provision which the State may make, with regard to the navigation of the river. And if .the State authorize a company to construct' a canal which impairs the rights of such riparian owner, he is not entitled to recover damages from the company. In that case, Wright had erected valuable mills, under a license granted to him by the legislature; but the court say, — “ He was bound to kqow that the State had power to revoke its license whenever the paramount -interests of the public should require it. And, in this respect, a grant by a public agent of limited powers, and bound not to- throw away the interests confided to it, is different from a grant by an individual who. is master of the subject. To revoke the latter, after an expenditure in'the prosecution oí it,-would "be a fraud. But he who accepts a license from the legislature, knowing that he is dealing with an agent bound by duty not to impair public rights, does so at his risk; and a voluntary expenditure on the foot of it, gives him no claim to compensation.”

The principles asserted and established by these cases, are, perhaps, somewhat peculiar, but, as they affect rights to real property in the State of Pennsylvania, they must be treated as binding precedents in this court. It is clear, also, from the application of these principles to the construction of the proviso under consideration, that it cannot be construed as a grant of the waters of a public river for private use, or a fee-simple estate in the usufruct of them, “ without diminution or alteration.” It contains no direct words of grant, which would operate by way of estoppel upon the grantor. The dam of Adam Hoops was a nuisance when it was made; but, as it did little injury to the navigation, the commissioners, who were -commanded to prostrate- other nuisances, were enjoined to tolerate .this. The mills of Hoops had not been erected on the faith of a legislative license,' as in the cases we have quoted, and a total revocation of it would not be chargeable with the apparent hardship and injustice which might -be imputed to it in those cases. His dam continues to be tolerated, and the license of diverting the water to his mills is still enjoyed, subject to occasional diminution from - the exercise of the superior right of the sovereign. His interest in the water may be said to resemble a right of common, which by custom is subservient to the right of the lord -of the soil; so that the lord may dig clay-pits, or empower others to do so, without leaving sufficient herbage on the common. Bateson v. Green, 5 T. R. 411.

Nor can the plaintiff claim by prescription against the public for .more than the act confers on him, which is at best impunity for a nuisance.' His license, of rather toleration, gives him a good title to keep up his dam and use the waters of the fiver, as against every one but the sovereign, and those diverting them by public authority, for public, uses.

It is true, that the plaintiff’s declaration in this case, alleges, that the waters diverted by defendants’ dam and canal are used for the purpose' of mills,- and for private emolument. But as it is not alleged, or pretended, that defendants have taken more water than was necessary for the canal, or have constructed a canal of greater dimensions than they were authorized and obliged by the charter, to make, this secondary use must be Considered as merely incidental to the main object of • their charter. "We do'not, therefore, consider the question before us, whether the plaintiff might not recovér damages against an individual, or private corporation, diverting the water of. this river to their injury, for the purpose of private emolument only, with or without license, or authority of either of its sovereign owners. The case before us requires us only to decide, that by the laws of Pennsylvania, the River Delaware is a public, navigable river, held by its joint sovereigns, in trust, for the public; that riparian owners of land have no title to the river, or any right to divert 'its waters, unless by license from the State. That such license is revocable, and in subjection to the superior right of the State, to divert the water for public improvements.

It‘follows, necessarily, from these conclusions, that, whether the State of Pennsylvania claim the whole river, or acknowledge the State of New Jersey, as tenant in common, and possessing equal rights with herself; and whether either State,' without consent of the other, has or has not, a right to-divert the stream, it will not alter or enlarge the plaintiff’s rights. Being a mere tenant at sufferance to both, as regards the usufruct of the water, he is not 'in a condition to question the relative rights of his superiors. If Pennsylvania chooses to acquiesce in this partition of the waters, for great public improvements, or is estopped to complain by her own acts, the plaintiff cannot complain, or call upon this court to decide questions between the two States, which neither of them sees fit to raise. By the law of his own State, the plaintiff has no remedy against a corporation authorized to take the whole river for the purpose of canals or improving the navigation; and his tenure and rights are the same as regards both the States.

With these views, it will be unnecessary to inquire wdiether the compact of 1783, between Pennsylvania and New Jersey, operated as a revocation of the license or toleration implied from the proviso of the colonial1 acts of 1771, as that question can arise only in case the plaintiffs’ dam be indicted as a public nuisance.

Nor is it necessary to pass any opinion on the question ot the respective rights of either of these co-terminous States to whom this river belongs, to divert its waters, without the.consent of the Qther.

The question raised is not without its difficulties; but being bound to resolve it by the peculiar laws of Pennsylvania, as interpreted by her own courts, we cannot say that the court below has erred in its exposition of them, and therefore affirm the judgment.

Mr. Justice McLEAN and Mr. Justice DANIEL dissented.

Mr. Justice CATRON gave a separate opinion; and Mr. Justice CURTIS dissented from the judgment of the court, on the merits, but not from its en+ '.rtaining jurisdiction.

The following are the opinions of Mr. Justice CATRON and Mr. Justice DANIEL.

Mr. Justice CATRON.

My opinion is, and long has been, that the mayor and aldermén of a city corporation, or the president and directors of a bank, or the president and directors of a railroad company, (and of other similar corporations,) are the true parties that sue and are sued as trustees and representatives of the constantly changing stockholders. These are not known to the public, and not suable in practice, by service of personal notice on them respectively, such as the laws of the United States require. If the president and directors are citizens of the State where the corporation was created, and the other party to the suit is a citizen of a different State, or a subject or citizen of a foreign government, then the courts of the United States can exercise jurisdiction under the third article of the Constitution. In this sense I understood Letson’s case, and assented to it when the decision was made; and so it is understood now.

If all the real defendant^ are not within the jurisdiction of the court, because some of the directors reside beyond it, then the act of February 28,1843, allows’the suit to proceed,-regardless of this fact, for the reasons stated in Litson’s case. 2 Sow-. 597.

If the United States courts could be ousted of jurisdiction, and citizens of other States and subjects of foreign countries be forced into the State courts, without the power of election, they would often be deprived, in great cases, of all benefit contemplated by the Constitution; and, in many cases, be compelled to submit their rights to judges and -juries who are inhabitants of the cities where the' suit must be tried, and to contend with powerful, corporations, in local courts, where the chances of impartial justice would be greatly against them; and where no prudent man would engage with such an antagonist, if he could help it. State laws, by combining large masses of men. under a corporate name, cannot repeal the Constitution; all corporations must have trustees and representatives, who are usually citizens of the State where the corp.oration is created; and these citizens cap be sued, and the corporate property charged by the suit; nor can the courts allow the constitutional security to be evaded by unnecessary refinements, without inflicting -a deep injury on the institutions of the country

Mr, Justice DANIEL.

In the opinion of the court, just announced in this cause, I am unable to concur.

Were the relative rights and interests of the parties to this controversy believed to be regularly before this court, I should have coincided in the conclusions of the majority; for the reason, that all that is disclosed by the record, either of the traditions or the legislation of the States of Pennsylvania and New Jersey, shows an equal right or claim on the part of either of those States- to the River Delaware, and to the uses to which the waters of that river might be applied. From such an equality in each of those States, it would seem regularly to follow, that no use or enjoyment of the waters of that river could be invested in the grantees of one of them, to the exclusion of the like use and enjoyment by the grantees of the other. The permission, therefore, from ^Pennsylvania to Adam Hoops, or his assignees, to apply the waters of the Delaware in the working of his mill, whatever estate or interest it might invest in such grantee, as against’ Pennsylvania, could never deprive the State of New Jersey of.her equal privilege of applying the waters of the same river, either directly, in her corporate capacity, or through her grantee, the Delaware and Raritan Canal Company. My disagreement with my brethren in this case has its foundation in a reason wholly disconnected with the merits of the parties. It is deducible from my conviction of the absence of authority, either here or in the Circuit Court, to adjudicate this cause; and that it should therefore have been remanded, with directions for its dismission, for want of jurisdiction.

The record discloses the fact, that the party defendant in the Circuit Court, and the appellee before this court, is a corporation, styled in the declaration, “a corporation created by the State of New Jersey.” It is important that the style and character of this party litigant, as well as the source and manner of its existence, be borne in mind, as both are deemed material in considering the question of the jurisdiction of this court, and of the Circuit Court. It is important, too, to be remembered, that the question here raised stands wholly unaffected by any legislation, competent or incompetent, which may have been attempted in the organization of the courts of the United States; but depends exclusively upon the construction of the 2d section of the' 3d article of the Constitution, which defines the judicial power of the United States; first, with respect to the subjects embraced within that power; and, secondly, with respect to those whose character may give them access, as .parties, to the courts of the United, States. In the second branch of this definition, we find the following enumeration, as descriptive of those whose position, as parties, will authorize their pleading or being impleaded in those courts; and this position is limited to “ controversies to which the United States are a party; controversies between two or more States, — between citizens of different States,— between citizens of the same State, claiming lands under grants of different States,- — and between the citizens of a State and foreign citizens or subjects.”

Now, it has not been, and will not be, pretended, that this corporation can, in any sense, be identified with the United States, or is endowed with the privileges of the latter; or if it could be, it would clearly be exempted from all liability to be sued in the Federal courts. Nor is it pretended, that this corporation is a State of this Union; nor, being created by, and situated within, the State of New Jersey, can it be held to be the citizen or subject of a foreign State. It must be, then, under that part of the enumeration in the article quoted, which gives to the courts of the United States jurisdiction in controversies between citizens of different States, that either the Circuit Court or this court can take cognizance of the corporation as a party; and this is, in truth, the sole founoa+ion on which that cognizance has been assumed, or is attempted to be maintained. The proposition, then, on which the authority of the Circuit Court arid of this tribunal is based, is this: The Delaware and Raritan ■ Canal Company is either a citizen of the United States, ■or it is a citizen of the State of New Jersey. This proposition, startling as its terms may appear, either to the legal or political apprehension, is undeniably the basic of the jurisdiction asserted in this case, and in all others of a similar character, and must be established, or that jurisdiction wholly fails. Let this proposition be examined a little more closely.

The term citizen will be found rarely occurring in the writers upon English law; those writers- almost universally adopting,as descriptive of those possessing rights or sustaining obligations, political or social, the term subject, as more suited to their peculiar local institutions. But, in the writers of other nations, and under systems of polity deemed less liberal than that of England, we find the term citizen familiarly reviving,- and the character and the rights and duties that term implies, particularly defined. Thus, Vat-tel, in his 4th book, has a chapter, (cap. 6th,) the title of which is: “ The concern a nation may have in the actions of her citizens.” A few words from the text of that chapter will show the apprehension of this author in relation to this term. u Private persons,” says he, “ who are members of one nation, may offend and ill-treat the citizens of another; it remains for us to examine what share a state-may have in the actions of her citizens, and what aré the rights and obligations of sovereigns in that respect.” And again: “ Whoever uses a ■ citizen ill, indirectly offends the state, which is bound to protect this citizen.” The meaning of the term ciii zen or subject, in the apprehension of English jurists, as indicating persons in their natural character, in contradistinction to artificial or fictitious persons created by law, is further elucidated by those jurists, in their treatises upon the origin and capacities and objects of those artificial persons designated by the name of corporations. Thus, Mr. Justice Blackstone, in the 18th chapter of his 1st volume, holds this language: “ We have hitherto considered persons in their natural capacities, and have treated of their rights and duties. But, as all personal rights die with the person; and, as the necessary form j of investing a series of individuals, one after another., with the same identical rights, would be inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who maintain a perpetual succession, and enjoy a kind of legal immortality. These artificial persons are called corporations.”

This same distinguished writer, in the first book of his Commentaries, p. 123, says, “ The rights of persons are such as concern and áre annexed to the persons of men, and when the. person to whom they are due is regarded, are called simply rights ; but when we consider the person from whom they are due, they are then denominated, duties,” And again, cap. 10th of the same book, treating of the People, he says, The people are either aliens, that is, born out of the dominions or allegiance of the crown; or natives, that is, such as are born within it.” Under our own systems of polity, the term, citizen, implying the same or similar relations to the government and to society which appertain to the term, subject, in England, is familiar to all. Under either-system, the term used is designed to apply to man in his individual character, and to his natural capacities; to a being, or agent, possessing social and political rights, and sustaining, social, political, and moral obligations. It is in this acceptation only, therefore, that the term, citizen, in the article of the Constitution, can be received and understood. When distributing-the judicial power, that article extends it to controversies between citizens of different States. This must mean the natural physical beings composing those separate communities, and can, by no violence of interpretation, be made to signify artificial, incorporeal, theoretical, and invisible creations. A corporation, therefore, being not a natural person, but a mere creature of the mind, invisible and intangible, cannot be a citizen of a State, or of the United States, and cannot fall within the terms or the power of the above-mentioned article, and can therefore neither plead nor be impleaded in the courts of the United States. Against this position it may be urged, that the converse thereof has been ruled by this court, and that this matter is no longer open for question. In answer to such an argument, I would reply, that this is a matter involving a construction of the Constitution, and that wherever the construction or the integrity of that sacred instrument is involved, I can hold myself trammelled by no precedent or number of precedents. That instrument is above all precedents ; and its integrity every one is bound to vindicate against any number of precedents, if believed to trench upon its supremacy. Let us examine into what this court has propounded in reference to its jurisdiction in cases in which corporations have been parties ; and endeavor to ascertain the influence that may be claimed for what they have heretofore ruled in support of such jurisdiction. The first instance in which this question was brought directly before this court, was that of the Bank of the United States v. Deveaux, 5 Cranch, 61. An examination of this case will present a striking instance of the error into which the strongest minds may be .led, whenever they shall depart from the plain, common acceptation of terms, or from well ascertained truths, for the attainment of conclusions, which the subtlest ingenuity is incompetent to sustain. This criticism upon the decision in the case of the Bank v. Deveaux, may perhaps be shielded from the charge of presumptuousness, by a subsequent decision of this court, hereafter to be mentioned. In the former case, the Bank of the United States, a corporation created by Congress, was the party plaintiff, and upon the question of the capacity of such a party to sue in the courts of the United States, this court said, in reference to that question, “ The jurisdiction of this court being limited, so far aá. respects the character of the parties in this particular case, to controversies between citizens of different States, both parties must be citizens, to come within the description. That invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen, and consequently cannot sue or be sued in the courts of the United States, unless the rights of the members in this respect can be exercised in their corporate name. If the corporation be considered as a mere facu’ty, and not as a company of individuals, who, in transacting their business, may use a legal name, they must be excluded from the courts of the Union.” The court having shown the necessity for citizenship in both parties, in order to give jurisdiction; having shown farther, from the nature of corporations, their absolute incompatibility with citizenship, attempts some qualification of these indisputable and clearly stated positions, which, if intelligible at all, must be taken as wholly subversive of the positions so laid down. After stating the requisite of citizenship, and sh,owing that a corporation cannot be a-citizen, and consequdntly that it cannot sue or be sued-in the courts of the United States,” the court goes on to .add, “ unless the rights of the members can be exercised in their corporate name.” .Now, it is submitted that' it is in this mode only, viz. in their corporate name, that the rights of the members can be exercised; that it is this which constitutes the character, and being, and functions of a corporation. If it is meant beyond this, that each member, or the separate members, or a portion of them, can take to themselves the .character and functions of the aggregate and merely legal being, then the corporation would be dissolved; its unity and perpetuity, the essential features of its nature, and the great objects of its existence, would be at an end. It would present the anomaly of a being existing and not existing at the same- time. This strange and obscure qualification, attemptpd by the court, of the clear, legal principles previously announced by them, forms the introduction to, and apology for, the proceeding, adopted by them, by which they undertook to- adjudicate upon the rights' of the corporation, through the supposed citizenship of the individuals interested in that corporation. They assert the power, to look beyond the corporation, to presume or to ascertain the resi- ■ dence of the individuals composing it, and to model their decision upon that foundation. In other words, they affirm that in an action at law, the purely legal rights, asserted by one of the parties upon the record, may be maintained by showing or presuming that these rights are vested in some other person who is no party to the controversy before them.

Thus stood the decision of the Bank of the United States v. Deveaux, wholly irreconcilable with correct definition, and a puzzle to professional apprehension, until it was encountered by this court, in the decision of the Louisville and Cincinnati Railroad Company v. Letson, reported in 2 Howard, 497. In the latter decision, the court, unable to untie the judicial entanglement of the Bank and Deveaux, seem to have applied to it the sword of the conquerór; but, unfortunately, in the blow they have dealt at the ligature which perplexed them, they have severed a portion of the temple itself. They have not only contravened all the known definitions and adjudications with respect to the nature of corporations,-but they have repudiated the doctrines of the civilians as to what is imported by the term subject or citizen, and repealed, at the same time, that restriction in the Constitution which limited the jurisdiction of the courts of the United States to controversies between “ citizens of different. States.” They have asserted that, “ a corporation-created by, and transacting business in a State, is to be deemed an inhabitant of the State, capable of being treated as a citizen, for all the purposes of .suing and being sued, and that an averment of the facts of its creation, and the place of transacting its business, is sufficient to give the circuit courts . jurisdiction."

The first thing which strikes attention, in the position thus affirmed, is the want of precision and perspicuity in its terms. The court affirm that a corporation created by, and transacting business within a State, is to be deemed an inhabitant of that State. But the article of the Constitution does not make inhabitancy a requisite of the condition of suing or being sued; that requisite is citizenship. Moreover, although citizenship implies the right of residence, the latter by no means implies citizenship. Again, it is said that these corporations may be treated as citizens, for the purpose of suing or being sued. Even if the distinction here attempted were comprehensible, it would be a sufficient' reply to it, that the Constitution does not. provide that those who may be treated as citizens, may sue or b'e sued, but that the jurisdiction shall be limited to citizens only; citizens in right and in fact. The distinction attempted seems to be without meaning, for the Constitution or the laws nowhere define such a being as a quasi citizen, to be called into existence for particular purposes; a being without any of the attributes of citizenship, but the one for which he may be temporarily ■ and arbitrarily created, and to be dismissed from existence the moment the particular purposes of his creation shall have been answered. In a political, or legal sense, none can be treated or dealt with by the government as citizens, but those who are citizens in reality. It would follow, then, by necessary induction, from the argument of the court, that as a corporation must be treated as a citizen, it must be so treated to all intents and purposes, because it is a citizen. Each citizen (if not under old governments) certainly does, under our system of polity, possess the same rights and faculties, and sustain the samfe obligations, political, social, and moral, which appertain to each of his felloyr-citizens. As a citizen, then, of a State, or of the United States, a corporation would be eligible to the State or Federal legislatures; and if created by either the State or Federal governments, might, as a native-born citizen, aspire to the office of President of the United States — •©! t° the command of armies, or fleets, in which last example, so fat as the character of the cotomander would form a part of it, we should have the poetical romance of the spectre ship realized in our Republic. And should this incorporeal and invisible commander not acquit himself in color or in conduct, we might see him, provided his arrest were practicable, sent to answer his delinquencies before a court-martial, and subjected to. the penalties of the articles of war. Sir Edward Coke has declared, that a corporation cannot commit treason, felony, or other crimp; neither is it capable of suffering a traitor’s or felon’s punishment; for it is not liable to corporeal penalties' — 'that it can perform no personal duties, for it cannot take an oath for the due execution .of an office; neither can it be arrested or committed to prison, for its existence being ideal, no man can arrest it; neither can it be excommunicated, for it has no soul. But ’these doctrines of Lord Coke were founded upon an apprehension of the law now treated as antiquated and obsolete. His lordship did not anticipate an improvement-by which a corporation could be transformed into a citizen, and by that transformation be given a physical existence, and endowed with soul and bo'dy'too. The incongruities here attempted to be shown as necessarily deduci'ble .from the decisions of the cases of the Bank of the United States v. Deveaux, and of the Cincinnati and Louisville Railroad Company v. Letson, afford some illustration of the effects which must ever follow a- departure from the settled principles of the law. These principles are always traceable to a wise and deeply founded experience; they are, therefore, ever consentaneous, and in harmony with themselves and with reason; and whenever abandoned as guides to the judicial course, the aberration must lead to bewildering uncertainty and confusion. Conducted by these principles, consecrated both by time and the obedience of sages, I am brought to the following conclusions: 1st. That by no sound or reasonable interpretation,, can a corporation— amere faculty in law, be transformed into a citizen, or treated as a citizen. 2d. That the second section of the third article of the Constitution, investing the courts of the United States with jurisdiction in controversies between citizens of ^different States, cannot be made to embrace controversies to which corporations and not citizens are parties; and that the assumption, by those courts, of -jurisdiction in such cases, must involve a palpable infraction of the article and section just referred to. 3d. That in the cause before us, the party defendant in the Circuit Court having been a corporation aggregate, created by the State of New Jersey, the Circuit Court could not properly take cognizance thereof; and, therefore, this cause should be remanded to the Circuit Court, with directions that it be dismissed for the want of jurisdiction.

Order;

This cause came on To be heard on the transcript of the record from the Circuit Court of the United States for the District of New Jersey, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be,- and the same is hereby, affirmed with costs.