The opinion
POTTS, J.,
(dissenting.) This certiorari is brought to review the proceedings of the board of chosen freeholders of the county of Hudson, in granting a license to Albert'N. Brown to build a dock, wharf, and pier, to extend beyond the limits of ordinary low water mark into New York bay, co'mmencing at a point on the most northeasterly part of a .tract of about 45.22 acres, iu the township of Bergen, in said county, of which said Brown claims to be the owner in fee, where the division line between the lands of George Vreeland and said tract terminates at high water mark; and from thence running south, 26J degrees east, *23 along the continuation of said line, to a point 200 feet beyond ordinary low water mark; thence southwesterly 770 feet, more or less, to a point where the same would intersect the line between the lands of said Brown and Stephen Vreoland and wife, extended in the course of the said line into New York bay ; and thence along the line between the lands of said Brown and said Stephen Vreoland and wife, north, 26 J degrees west, to high water mark, which dock, wharf or pier will be 770 feet in length, more or less, and extended as much as 200 feet beyond low water mark.
This license was granted under and by virtue of the provisions of an act to authorize the owners of land upon tide waters to build wharves in front of the same, approved March 18th, 1851. Nix. Dig. 871. This act provides that it shall be lawful for the owtiers'of lands situate along and upon tide waters to build docks or wharves upon the shore in front of their lands, and in any other way to improve the same, and when so built upon or improved, to appropriate the same to their own exclusive use; that such docks, wharves and piers may be extended beyond the limits of ordinary low water, in such manner as not to hinder or impair the public right of navigation, upon license obtained, as directed by the act. The act provides further, that neither the act nor any license granted by virtue thereof, shall authorize any shore-owner to extend any wharf or other improvement over lands on the shore or under water beyond low water mark, the title to which, or any easement therein, by grant from this slate or otherwise, may he vested in any other person than such shore-owner; and the board of chosen freeholders of the county wherein the same may lie may require any wharf so built beyond low water mark, or any part thereof, to be kept as a public wharf, open to all persons whatever, under such regulations and at -on h reasonable rates of wharfage as they may direct; and the act declares that the term shore shall be construed to *24 mean the land between the limits of ordinary high and low water; the term shore line to mean the edge of the water at ordinary high water; and the term shore-owner to mean the owner of the land above and adjoining the shore line.
■ The Morris Canal an,d Banking Company, who prosecute this certiorari, assign, as reasons .why the license granted to Brown should be revoked and set aside—1, that they, the said canal and banking company, are the shore-owners; and 2, that Brown has no legal title to the shore, and therefore has no right to the license. These are the questions to be examined.
I. Then has the company the title to the shore? do they own the land above and adjoining the shore ? are they the shore-owners, within the true meaning and construction of the statute? If they are, then it follows, of course, that the board of chosen freeholders erred in granting the license in question to Brown, the defendant in, certiorari.
The Morris Canal and Banking Company claim title in this wise; they were authorized, by their acts of incorporation, to construct a canal from the waters of the Delaware to the waters of the Hudson, with the usual powers to take land for the purpose by purchase or appraisement, and proceeded accordingly, in 1834, to survey and locate their route from the Passaic to the Hudson, and had three commissioners appointed to appraise the value ,of the lands required, and assess the damages to the land-owners. The route of the laud was located partly along the margin of New York bay through the laud in question, then owned by Jacob Merseles and Merseles J. Merseles and their wives, to its terminus at Jersey City. On the 15th August, 1834, the company and these parties, together with certain other laud-owners, entered into an agreement under seal, whereby it was agreed to ascertain and settle, by.amicable arrangement by arbitrators, the value of the lauds required to be taken for the uses of the *25 company, and the damages, &e.; and they agreed to submit the matter to the three appraisers already appointed and two resident citizens of the county, who where agreed upon. They were “ to ascertain and determine the compensation and damages which each of the landholders and owners and proprietors of the said lands shall receive for the lands occupied by the said canal, and the damages incidental to and caused and to be caused by the location and construction of the said canal” The said arbitrators, or a majority of them, were forthwith to proceed “ to view the several lots or tracts of land intersected or taken and occupied by (he said canal between the eastern shore of the Passaic river and the bay of New York,” and from their view, to “ make an award, assessment, and appraisement of the value of the land taken from each of the said several lots, and of the damages which shall be done to the same, and which shall be paid to the owners of the said lots by reason of the construction of the said canal and its various works,” &c., which award was to be conclusive. The canal company were to have the right to deposit any surplus earth, &c., upon the adjacent lands occupying no more of the adjacent lands than might he reasonably necessary for that purpose, but the title thereto to remain in the landholders; and upon performance by the company, the land-owners agreed “ to convey to the said, company, the land taken as aforesaid, to be held by the company as long as the same shall be used for the purposes of the canal;” and that the company should thereupon “take immediate possession thereof, and hold the same for the uses and purposes of the canal, not including in such conveyance, however, the adjacent lands to be occupied as aforesaid in depositing the surplus earth,” &c.
On the 19th September, 1834, the arbitrators made their award xtuder the above submission, giving for the land taken iron) the lot in question, 2.31 acres, $231, and for incidental damages $1769. The money so awarded was paid, and for which Jacob and Merseles J. Merseles gave *26 the following receipt: “Received from the Morris Canal and Banking Company $2000, being in full for the amount awarded us by the arbitrators, under the submission hereto annexed, for land and incidental damages by reason of the Morris canal passing'through our land, as appears by the preceding award of the arbitrators.”
On the 2d February, 1835, the said Jaeob and Merseles J. Merseles and their wives made, executed, and delivered •to the Morris Canal Company their deed of conveyance, for the consideration of $231, of the land so awarded by the arbitrators. The deed is in the ordinary form of a •deed of bargain and sale to the company, their successors and assigns, as long as used for said canal; and describes the land conveyed as “situate, lying, and being in the .township of Bergen, in the county of Bergen, and State of New Jersey, beginning on the line of land of Robert Thompson, where the same is intersected by the route of the Morris canal, and running northwardly, as said canal runs, according to the course and distance marked on the said map, survey, and field-book of said' canal, filed in the clerk’s office of the county of Bergen, to land of George Vreeland, the same being lot No. 38 on said survey, and- is estimated to contain 2.31 acres strict measure; the said lot lies in the, vicinity of and on the margin of Nexo York bay, between lands of Robert Thompson and George Vreeland,” Ac.
The canal company entered into possession of the land so conveyed, and have constructed their canal over it, a'nd it is conceded that “ the larger portion of the outer or sea wall of the canal is below high water mark;” and that “for a small distance‘the sea wall is above high water mark, and marshy land intervenes between the sea wall of the eana.l and high water mark.”
In examining the character and extent of the title which passed by this deed to the Morris Canal and Banking Company, we are not restricted to the words .of the deed alone. The deed is to be construed in reference *27 to the charter powers of the company, the proceedings to take the land by condemnation, the agreement of submission, and the award of which the deed was but the execution. These are of the res gestee. They are parts of the same transaction—the acquisition of the land. The transaction originated in the power of the company to take the land, progressed by the exercise of that power, and the deed was but the form in which the power was consummated. These, therefore, legitimately belong to the consideration of the question as to what was the intention of the parties, and what are the legal effect and incidents of the grant.
The state, in the exercise of the right of eminent domain, which gives to the legislature the control of private property for public uses, and for public uses only, had delegated to this company, in consideration of the great public benefits the work it proposed to construct would secure, the power to take the lands of private citizens by condemnation. The purpose was the construction of a canal or artificial navigation, which was to be and remain forever a public highway. The lands authorized to be taken were such, and such only, as were necessary for the purpose of the canal and its appendages. This was the extent of the constitutional power; and the legislative delegation of authority to take private property for public uses is always to be construed accordingly. The charter of the company, in terms, thus limits the right. It requires—first, a survey and specific location of the works; then an offer of compensation : and, if the parties cannot agree, then a particular survey and map is to be made of such lands, waters, and streams as, in the estimation of the president and directors of the company, are requisite to be taken for the uses of the canal, and these are to be exhibited to a justice of the Supreme Court, accompanied by the oath or affirmation of one of the engineers employed by said company, that the premises therein described are required to be occupied by the company for the pur- *28 . pose of carrying into effect the object set forth by the act, -and arc not more than is requisite for the said uses, before commissioners can be appointed to appraise the value and. damages. And it is the premises so appropriated, described, and appraised, alone, that vests in the company. The ,27th section of the charter is very specific. It declares that .every part of' the act shall be so construed as that the said corporation shall not be authorized to take or appropriate to the use of said canal, or under color or pretence that the same are necessary therefor, any lands, waters, or streams of water, but such only as are actually necessary for the erection and use of said canal for the purposes of navigation only, and its necessary towing paths and works, as specified in the 5th section. It is very clear, therefore, that whether we look to the constitutional powers of the legislature to grant, or to the express terms of the grant itself, the company were only authorized to take by condemnation such lands as, by specific designation and proof, were ascertained to be necessary for the use of constructing the canal and its necessary appendages.
The constitutional power to take private property for public use, implies the limitation that nothing more can be' taken than is strictly required for the use. The private interest of the individual is never to be sacrificed to a greater extent that is necessary to secure a public object of adequate importance. This is now held to be the rule in ^England. Angelí on Highways 57, § 80. And the same ■author, speaking of the practice in the United States, p. 60, § 83, says, “It is very obvious that in taking private property, under the express authority of government, for public use, no more should be taken than is demandable .by the exigencies of the community; and the least possible private injury in so doing should be committed. If the charter of a navigation company authorize the entering upon lands adjoining the works to be constructed, and taking materials therefrom, no more can be taken than as an incident to the promotion of what is intended by the *29 charter. So, the presumption is, in laying out a common highway over the soil owned by an individual, that such individual retains every right except the public easement. And see 2 Kent’s Com. 339. And so, too, in the ease of Varick v. Smith, on appeal, 9 Paige Ch. R. 561, it was said by the court that “ the government has the power, under the constitution, to appropriate the private property of the citizen just so far, and no farther, than is necessary for the purpose and object of the appropriation.” And “ when such purpose is accomplished, the right of the state is exhausted, and the whole of the residue of the property, whatever it may be, belongs to the citizen.”
Such, I apprehend, is the correct exposition of the doctrine we are considering. The public necessity is the foundation of the right, and with that necessity it begins and ends. To hold that an incorporated company, authorized to construct a work of public utility, may go beyond this limit, and appropriate, not only such private property as is necessary to enable them to construct their work, but sueh as would be merely useful and advantageous in a pecuniary point of view to the stockholder, would be an unwarrantable and dangerous perversion of-the doctrine. It would be using it as a pretext for appropriating the private property of one citizen to the purpose of increasing the emoluments of other citizens, irrespective of the strict public necessity. .
That it was the intention of the parties to convey and acquire precisely what the company were proceeding to take by condemnation, is manifest. The recitals iu the agreement and submission show that the company had surveyed and located the route of their canal over the premises; had specifically designated the lands necessary for their use by description; filed the field-book, map, and surveys in the clerk’s office, aud had applied for and obtained the appointment of commissioners to appraise the value of the land aud damages, having made, as we must presume, the necessary proof by the oath of one of *30 their engineers, that the premises described were required by the company for the purpose of the construction of the canal. The agreement and submission further recites that the appraisers so appointed were convened, and prepared to enter on their duties; that, at this juncture of time, it was suggested that the land-owners and the company were desirous to settle by arbitration, not what lands or rights were to be conveyed, but the value of the lands so required to be talcen for the uses of the company, and the damages; &c. The property rights to be surrendered to the company had been already ascertained and fixed under the provisions of the charter. The compensation alone remained to be ascertained, and this was to be referred to arbitration.
The parties, in preparing this agreement and submission, appear to have been extremely careful to designate the precise subject matter with which they were dealing— the property rights to be parted with by one party, and acquired by the other, and for which compensation was to be awarded. They describe it as “ the lands through which the said extended canal is located“ the lands occupied by the said canal, and the damages incidental to and to be caused' by'the location and construction of the said canal.” The appraisers are to view “ the several lots or tracts of land intersected ,or taken and occupied by the said canal,” and to appraise “ the value of the land talcen from each of the said several lots, and of the damages which shall be done to the same.” When the sum awarded for “ the land taken and occupied and damages done to each' particular lot” are paid, the company- are to have authority to enter and construct their canal, “ doing no unnecessary damage or injury to the adjacent lands;” and to occupy the. adjacent lands for the purpose of depositing the surplus earth, “ but the title thereto to remaiu. in the landholders.” And- by the sixth article of tiie submission, it is agreed' that, when (he amount awarded is paid o.r tendered, the land-owners will convey *31 to the company the land taken as aforesaid, to be held by the company so long as the same shall be used for the purposes of the canal—not including in said conveyance, however, the adjacent lands to be occupied, as aforesaid, in depositing the surplus earth, &c.
Then the award is made in pursuance of the agreement and submission. It awards $231 to Merseles for precisely two acres and thirty-one hundredths of land, being the land actually occupied by the canal, and $1769 for incidental damages. The arbitrators say, in their award, that they proceeded “ to view the several lots or tracts of land intersected or taken and occupied by the said canal,” and upon this view appraised the value of the land taken, &c., and the damages which shall be done to the same, and which shall be paid to the owners, &c., by reason of the construction of the said extended canal, &c. And the receipt given to the company, and produced by them, says the amount is that awarded them under the submission “for land and incidental damages by reason of the Morris canal passing through our land.”
From this view of the proceedings had, and which were consummated by the deed in question conveying the two acres and thirty-one hundredths, strict measure, for as long as the same should be used by the canal, it is entirely clear that it never entered into the contemplation of the parties that they were dealing with any other property rights than those which the company were proceeding to acquire by condemnation under the provisions of their charter. But as the title by condemnation could only be acquired by a strict pursuance of the delegated power, the substitution of the agreement, submission, and award, as the mode of ascertaining the value of the land and damages, instead of the commission and appraisement provided for by the charter, rendered it necessary to adopt the form of passing the title by deed. Yet it was but the mere formal mode adopted by the parties of giving effect, by their own act, to the charter power of *32 condemnation, the operation of which had been intercepted, by the agreement.
Then what the company acquired by force of this deed of conveyance was, strictly, such an estate or interest in the land as they would have acquired by condemnation, had they pursued the mode prescribed by their charter to that end. They took neither more nor less than this. Their title was limited, therefore, to the narrow strip of land specifically described and actually used in the construction of the canal and its towing paths. They took it, too, limited to a particular and specific use, that of constructing and maintaining their canal on and over it for purposes of navigation, and their estate in it was to terminate with the use. In one sense, it is true they became shore-owners. The strip occupied by them, embracing the two acres and thirty-one hundredths, it is admitted lies along the shore of the bay of New York, and the larger portion of the outer or sea wall of their canal is below high water mark. But the species of limited estate they acquired amounted, practically, to nothing more than an easement or right of way. Such was the opinion of the Chancellor in Willink v. The same Co., 3 Green’s Ch. Rep. 403; and such an interest in lands cannot possibly be construed to carry with it the legal rights of riparian owners —the right to wharf out and otherwise reclaim and improve the adjoining shore, the use of the shore for fisheries and all other lawful purposes, not obstructing the public right of navigation. These remain as appurtenances 'to the estate out of which the limited grant to the company was carved. They constitute part of the intrinsic value of that estate; they have never been divested from the owners of the upland; the owners of the original estate still have, the .right of fishing and ferry, and every other right which at common law attached as appurtenances to the -land consistent with . the enjoyment of the estate granted to the company. These were never sought tobe condemned, to the use of the canal company.; *33 they were not within the contemplation of the parties, or the“ terms of the agreement and submission, the award, or the deed which executed the award.
The statute of 1851 must be construed as declaratory of the common law; for it is not within the constitutional powers of the legislature to give or take away the vested property rights of the citizen or the public for purposes of mere private emolument. Its object was to define and settle the extent of the rights of which it treated, and which had become the subject of doubt and litigation, and to prescribe the mode of their exercise and enjoyment; for in many instances these riparian rights had become very valuable—more valuable, indeed, than the upland to which they were appurtenant. Considering this, therefore, as a mere declaratory act, it in no wise affects the rights of these parties, so far as they are involved in this controversy.
Taking it to bo established, that the deed of conveyance passed only such title as the company would have acquired by condemnation, the case seems very free from difficulty. The Morris Canal and Banking Company have undoubtedly the power in their charter to take, not only the land necessary for the erection and construction of their canal and towing-paths, but land for all the necessary appendages to their work, by condemnation; but it can only be taken by a strict pursuance of the iorms prescribed by their charter, and one of these requires that they specify particularly the land required, and show, by proper proof, that it is so necessary, and the object for which it is to be used. Without this they cannot proceed to acquire the title. There is nothing in the case to show, nor is it pretended, that the company, in the case before us, designated any land of Merseles, or sought to appropriate any of his rights outside of the strip in question, except only the privilege of depositing their surplus earth on the adjoining land, without interfering with the title. The proceedings are silent on the subject of docks, *34 wharves, and piers, for which, it is now argued, the shore-rights are important to them. If the company had required, as they now insist they do, these shore-rights for the purpose of erecting wharves, docks, and piers, as auxiliary and necessary to the purposes of their legitimate business, they should have taken the proper steps to acquire them by condemnation. They should have described specifically the quantity and location of the land below high water mark which they required, and the uses for which it was required, or they should have embraced it in their agreement and submission, had ' the value appraised, and stipulated for and obtained a conveyance or release.
There is no foundation in fact for the argument that the $1769 awarded as damages, were given as the value of the riparian rights of the land-owner : on the contrary, it is manifest that the damages were awarded, not for the rights themselves, but for the inconvenience of having the canal interposed between the upland and the shore, and the consequent difficulty presented to the enjoyment of the riparian rights by the land-owner. This was the extent of the power the commissioners would have had under the charter, (Vanschoick v. Delaware and Raritan Canal Co., Spencer 254,) and the agreement and submission did not enlarge the power.
The cases that have been cited from the State of New York rest upon their peculiar legislation, and cannot be considered as of authority upon the question now before the court.
The only remaining question is as to the title of the defendant, Albert P. Brown, to the shore in question. But I apprehend it is not necessary to consider that question here. The Morris Canal and Banking Company cannot raise that question in this case. If they have no title or right, they are not in a situation to complain. That controversy, if there be one, it will be time enough to examine when the proper parties bring it iu form before *35 the court. A third party cannot be permitted to come into court and litigate questions of title in dispute among other parties. If the canal company can show that the license granted interferes with any rights they have acquired, or in the progress of the contemplated improvements to be made under the license, they are injured, the law will furnish a remedy.
In my opinion, the certiorari should be dismissed.
Reversed, 3 Dutch. 13. Cited in McKelway v. Seymour, 5 Dutch. 329; Hoboken Land and Imp. Co. v. Mayor, &c., of City of Hoboken, 7 Vr. 550 ; Morris Canal and Banking Co. v. Central R. R. Co., 1 C. E. Gr. 438.