Attorney-General v. Delaware and Bound Brook R. R. Co. that the navigable waters leading into the Mississippi shall be common highways, and forever free, does not prevent the application of the common law principle that he who owns the bank owns to the middle of the river, subject to the easement of navigation. Adms. of Garit v. Chambers, 3 Ohio 495. See, also, Middleton v. Pritchard, 3 Scammon 510. A river may be navigable below the ebb and flow of the tide, in the sense of the common law, and, in fact, navigable above, and the question of boundary in respect to lands adjoining it will be determined by one principle above and another below tide-water. Though, in some of the United States, (among them Pennsylvania), the civil law doctrine as to the ownership of the soil has been adopted as to great rivers not navigable in the common law sense, in many of them the common law doctrine governs the subject. It governs it here. Arnold v. Mundy, 1 Halst. 1; Gough v. Bell, 2 Zab. 441 ; Bell v. Gough, 3 Zab. 624; Martin v. Waddell, 3 Harr. 495; Rundle v. Del. and Rar. Can. Co., 1 Wall., Jr., 275. In the last case it was applied to the Delaware. The court there said: "The river Delaware is the boundary between the States of Pennsylvania and New Jersey. The tide ebbs and flows to the part of the Trenton Falls where the Trenton bridge crosses the river; above that point it is a fresh water stream. vious to the Revolution, the channel and waters of the river below Trenton, so far as the river was navigable, in the common law sense of the term, were vested in the King of England. The grant, both for New Jersey and for Pennsylvania, was bounded by the river Delaware. So far as the tide ebbed and flowed, the proprietors had no title to the bottom of the river below low water mark. But above the bridge and the flow of the tide, the proprietors of each province held ad filum medium aquæ, by the established principles of the common law, according to which their respective grants must be construed. So far as the river was the property of the crown, it devolved on the two states by the Revolution and the treaty of peace with Great Britain. Immediately after the treaty of peace, the States of Pennsylvania and New Jersey entered into Pre Attorney-General v. Delaware and Bound Brook R. R. Co. the compact of April, 1783, making the Delaware a common highway for the use of the states." See, also, S. C., 14 How. 80. The state has no jus privatum in the soil of the Delaware above tide-water; that is in the riparian owners, subject to the public easement of navigation, and to such regulation by the legislature of the waters as the public right of navigation may require. The right of the riparian owners to the soil of the river is subordinate to the right and power of the state to use and appropriate the river to the public good in promotion of navigation; and, as to the jurisdiction and power of the state over it, the river above tide water is to be regarded as a navigable stream. Vattell, Book 1, §§ 249, 272; Binney's Case, 2 Bland 99; Commissioners of Homochitto River V. Withers, 29 Miss. 21; Woolrych on Waters 46. There is, therefore, in this case, no purpresture, and the defendants have not violated the proviso of the thirty-sixth section of the general railroad law, which prohibits corporations formed under that law from taking any land under water belonging to the state, unless the consent of the riparian commissioners shall first have been obtained. But if it be merely doubtful whether there is a purpresture or not, an injunction asked for on the ground of purpresture will not be granted; for, to warrant an injunction in such case, it must be clear that there is a purpresture. Story's Eq. Juris., § 924 a; City of Rochester v. Curtiss, Clarke 343. It is argued on behalf of the state, that this view of the ownership of the soil of the river will give to the riparian owner the right of fishery in front of his land, and that the terms of the compact of 1783, between this state and Pennsylvania, forbid such construction. The provision of the compact, on the subject of fisheries, is that "each of the legislatures of said states shall hold and exercise the right of regulating and guarding the fisheries in the said river Delaware, annexed to their respective shores, in such manner that the said fisheries may not be unnecessarily interrupted during the season for catching shad, by vessels riding at anchor on the fishing ground, or by persons fishing under a claim of Attorney-General v. Delaware and Bound Brook R. R. Co. common right on said river." In Gough v. Bell, 2 Zab. 441, 462, Chief Justice Green, referring to this provision of the compact, says, that the act of June 13th, 1799, (Pat. 416, § 9,) shows clearly that the legislature of this state understood this clause of the compact of 1783 as relating to fisheries below the head of tide-water, which were the subject of private ownership and individual occupancy; and he adds, that the rights of the riparian proprietors to fisheries in the Delaware are also clearly recognized by the acts of November 26th, 1808, (Bloomfield 204,) of February 9th, 1819, (Rev. Laws 653,) of February 15th, 1819, (Rev. Laws 659,) and the laws of November 26th, 1808, (Rev. Stat. 480,) and the act of December 27th, 1826, (Rev. Stat. 479); and he says, "such. repeated and unequivocal legislative recognitions of a right furnish proof of its existence which cannot be disregarded." The act of 1799, above referred to, provides for the regulation of fisheries in the Delaware, between the falls at Trenton and the mouth of the Machacomack river, which is near the north station. It appoints commissioners to grant licenses to erect wiers, fishing dams, pounds and baskets in the Delaware; but provides that no license shall be granted to erect any wier, rack, fishing dam, pound or basket opposite to or adjoining the land of any person without his or her consent in writing, previously obtained, thus distinctly recognizing the right of several fishery in the riparian owners. I proceed to consider the subject in the light of the obligations of this state to Pennsylvania, under the compact of 1783. The theory of joint ownership by New Jersey and Pennsylvania of the entire river, asserted on behalf of the state in this case, is by no means a new one. It was advanced by Pennsylvania many years ago, and stoutly resisted by this state.. It has not only never been assented to by New Jersey, but the practice of both states is opposed to it. Since the compact of 1783 was made, the citizens of Pennsylvania have, both with and without the sanction of her legislature, and without receiving or asking the consent of this state, erected wing-dams and other structures in the river on her side. In Attorney-General v. Delaware and Bound Brook R. R. Co. like manner our citizens have occupied the soil of the river on our side, and each state has withdrawn, without the consent of the other, the water from the river for the purpose of artificial navigation. The requirements of the administration of justice, and the necessity of providing for the protection of the navigation of the river, gave rise to the compact. These, and these alone, were the objects of it. This appears both from the preamble and the provisions of the compact. The following are the preamble and the first and second sections: "Whereas, inconveniences and mischiefs have arisen, and may hereafter arise, from the uncertainty of jurisdiction within and on the river Delaware; therefore, to prevent the same, and in order that law and justice may hereafter in all cases be executed and take effect within and upon the said river, from shore to shore, in all parts and places thereof, where the said river is the boundary between the said states, the said commissioners do agree and establish, for and in behalf of their respective states, in manner following, that is to say: First-It is declared that the river Delaware, from the station point on the northwest corner of New Jersey, southerly to the place upon 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 public highway, equally free and open for the use, benefit and advantage of the said contracting parties; provided, nevertheless, that each of the legislatures of said states shall hold and exercise the right of regulating and guarding the fisheries on the said river Delaware, annexed to their respective shores, in such manner that the said fisheries may not be unnecessarily interrupted during the season for catching shad, by vessels riding at anchor on the fishing ground, or by persons fishing under claim of a common right on said river. Secondly-That each state shall enjoy and exercise a concurrent jurisdiction within and upon the water, and not upon the dry land, between the shores of said river; but, in such sort, nevertheless, that every ship, and other vessel, while riding at anchor before any city or town, in either Attorney-General v. Delaware and Bound Brook R. R. Co. state, where she hath last laded or unladed, or where it is intended she shall first thereafter either lade or unlade, shall be considered exclusively within the jurisdiction of such state; and every vessel fastened to or aground on the shore of either state, shall in like manner be considered exclusively within the jurisdiction of such state; but that all capital and other offences, trespasses or damages committed on said river, the judicial investigation and determination thereof shall be exclusively vested in the state wherein the offender, or person charged with such offence, shall be first apprehended, arrested or prosecuted." The third section provides that all islands, islets and insulated dry land within the bed and between the shores of the river, and between the above mentioned station point northerly, and the falls of Trenton southerly, shall, as to jurisdiction, be deemed and considered as parts and parcels of the state to which such insulated dry land lay nearest at the time of making the compact; and that certain designated islands, below the falls, shall be annexed to and be parts of this state, and that other designated islands shall be annexed to and be part of Pennsylvania; and that all islands below the falls shall be annexed to and be part of the state nearest which they, at the time of making the compact, lay; and so of islands which might thereafter be formed in the river. The last section provides for the ratification of the compact by the legislatures of the states, and that when so ratified it shall be forever irrevocable, except by mutual concurrence. By act of the 26th of November, 1783, the islands in the Delaware belonging to this state were annexed to the respective counties and townships nearest which they lay, except Petty's Island, which was annexed to Newton township, in Gloucester county. Paterson's L., p. 50. In 1817, differences arose between the states in regard to wing-dams and obstructions placed in the river on the New Jersey side by riparian owners, of which Pennsylvania complained on the ground that they were injurious to the navigation. The report of a committee of the General Assembly of this state to that body on the subject, is evidence of the construction which |