Opinion of the Court.

that effect no appeal has been prosecuted. We must assume, therefore, that the demand was rightfully made, and ought to have been granted. It follows that after the suit was begun the company wrongfully withheld the possession, and under such circumstances equity forbids that it should retain, as against the mortgagee, the fruits of its refusal to do what it ought to have done. It is a matter of no consequence that a receiver was not appointed until April 15, or that an application was not made for such an appointment until March 24. If the surrender of possession had been made, as we must assume it ought to have been, as soon as the suit was begun, a receiver would have been unnecessary. All that was done afterwards in that particular was in aid of the suit and because of the refusal of the company to comply with the demand that had been made. It follows that from the time of the bringing of the suit the company itself is to be treated in all respects as a receiver of the property, holding for the benefit of whomsoever in the end it should be found to concern, and liable to account accordingly. In Galveston Rail road v. Cowdrey, before cited, the controversy was in respect to earnings before suit brought, and the suit was for foreclosure only, the court being careful to say in its opinion that it did not "appear that the complainants or their trustees made any demand for the tolls and income until they filed the present bill," and that "the bill itself did not contain any allegation of such a demand.”

It remains only to inquire when the money which is the subject matter of the controversy was actually earned, and we have no hesitation in deciding, upon the evidence, that it must have been after the suit was begun. The admission is that on the 27th of March the amount in the hands of the company was $42,123.68. Between that date and April 15, the company paid out $46,458.16, which was $4334.48 in excess of what it had on hand at the beginning. On the 15th of April it had on hand $32,216.20, thus showing that its earnings from March 27 until then must have been $36,550.68. The fair inference from the evidence is that the receipts were all from the current earnings and the disbursements for the current

Syllabus.

expenses. The railroad was all the time, before and after the suit, a "going concern," and its receipts and disbursements the subjects of current income account. Applying the dis bursements as they were made from the income to the payment of the older liabilities for the expenses, as is the rule in ordinary running accounts, it is clear that, in the absence of proof to the contrary, the money on hand was earned pending

the suit.

Under these circumstances, as there are no current expense creditors claiming the fund, we are satisfied that the money is to be treated as income covered by the mortgages, and should be paid to the trustees to be held as part of that security. The decree of the Circuit Court is

Reversed, and the cause remanded with instructions to enter a decree in accordance with this opinion.

ERROK TO THE CIRCUIT GOURT OF THE UNITED STATES FOR THE

DISTRICT OF NEW JERSEY.

Argued February 8, 8, 1888. Decided February 20, 1888.

The title of the Pennsylvania Railroad Company to its lands in controversy, derived by grant from the Hoooken Land and Improvement Company, was confirmed and enlarged by the act of the legislature of New Jersey of March 31, 1869, "to enable the United Companies to improve lands

Syllabus.

under water at Kill von Kull and other places," and the title of the other defendants to their lands in controversy, also derived by grant from said Hoboken Company, was enlarged and confirmed by grants from the State, under the riparian act of the legislature of the same 31st March; and thus all these titles are materially distinguished from the title of the Hoboken Land and Improvement Company, (derived only through § 4 of its charter,) which was the subject of the decision of the highest court of the State of New Jersey in Hoboken Land and Improvement Co. v. Hoboken, 7 Vroom, (36 N. J. Law,) 540.

The act of the legislature of New Jersey of March 31, 1869, "to enable the United Companies to improve lands under water at Kill von Kull and other places" embraced but one object, and sufficiently indicated that object in its title, viz.: that it was intended to apply to the lands of the Pennsylvania Railroad Company in controversy in these actions; and thus it complied with the requirements of the constitution of New Jersey respecting titles to statutes.

By the laws of New Jersey lands below high-water mark on navigable waters are the absolute property of the State, subject only to the power conferred upon Congress to regulate foreign commerce and commerce among the States, and they may be granted by the State, either to the riparian proprietor, or to a stranger, as the State sees fit. The grant by the State of New Jersey to the United Companies by the act of Marc. 31, 1869, under which the Pennsylvania Railroad Company claims, and the grants under the general riparian act of the same date under which the other defendants claim, were intended to secure, and do secure, to the respective grantees the whole beneficial interest in their respective properties, for their exclusive use for the purposes expressed in the grants.

An estoppel cannot apply in this case to the State or to its successor in title. Any easement, which the public may have in New Jersey to pass over lands redeemed by filling in below high-water mark in order to reach navigable waters, is subordinate to the right of the State to grant the lands discharged of the supposed easement.

A riparian proprietor in New Jersey has no power to create an easement for the public over lands below high-water mark, as against the State and those claiming under it; and if he attempts to do it, and then conveys to another person all his right to reclaim the land under water fronting his property, his grantee may acquire from the State the title to such land, discharged of the supposed easement.

The title of a grantee under the riparian acts of New Jersey differs in every respect from that of a riparian owner to the alluvial accretions made by the changes in a shifting stream which constitutes the boundary of his possessions.

The defendants in error hold the exclusive possession of the premises in controversy against the adverse claim of the plaintiff to any easement by virtue of the original dedication of the streets to high-water mark on the Loss map.

VOL. CXXIV-42

Statement of the Case.

THE following is the case as stated by the court:

These are six actions of ejectment brought by the Mayor and Common Council of the City of Hoboken originally in the Supreme Court of New Jersey, and removed into the Circuit Court of the United States for that district by the several defendants, on the ground of citizenship or alienage. In that court they were tried as one case, the intervention of a jury having been duly waived in writing by the parties. Judgment was rendered in them severally for the defendants, to reverse which these writs of error have been sued out.

The general nature of the controversy is accurately stated by Judge Nixon, who tried the causes, in his opinion, as follows, 16 Fed. Rep. 816:

"The claim of the plaintiff is for an easement, and is based upon the dedication of certain streets, in the year 1804, by Col. John Stevens, who was then the owner of between 500 and 600 acres of land on the western shore of the Hudson River, where the city of Hoboken now stands, and who made 'a plan of the new city of Hoboken, in the county of Bergen,' and caused the same to be filed in the clerk's office of said county in the month of April, 1805. This plan, on the map known as the Loss map, exhibits a number of streets running north and south, and a still larger number running east and west, all of the latter, except one, apparently terminating on the river front at their eastern end, and one of the former having a like terminus on the south. Since that date, and by legislative authority, the river bed below the ancient high-water mark has been filled in for a long distance to the east and south of the land included in the Loss map, rendering the navi, gable water inaccessible from the streets as therein laid out and dedicated. This controversy has reference to extending one of these streets, not named on the map, but now called River Street, to the south, and four others, to wit, Newark Street, designated on the map the Philadelphia post road, and First, Second and Third streets, to the east, until they respectively reach the navigable water of the river. The city claims the right of extension by virtue and force of the Stevens dedica

Statement of the Case.

tion. The defendants resist it, asserting that the title of Col. Stevens was limited to high-water mark of the river in 1804; that the soil below the high-water mark, as it then existed, belonged to the State of New Jersey, which not only has never acquiesced in any easement over the land, but by various enactments has conferred upon the defendants or their grantors an absolute title inconsistent with any right of w in the public over the same."

The facts in all the cases are embraced in a series of findings by the court constituting a single statement, as follows:

"(1) That the tract of land on which the city of Hoboken has been mainly built was formerly the property of Col. John Stevens, and contained originally five hundred and sixty-four

acres.

"(2) That in the year 1804 Col. Stevens, then being the owner of said tract, caused to be made 'a plan of the new city of Hoboken, in the county of Bergen,' known as Loss's map, which was filed in the clerk's office of the county of Bergen, in April, 1805.

"(3) That the public streets laid out on said map running east and west extended eastwardly to the high-water mark of Hudson River as it then existed.

"(4) That the only street thereon running north and south which concerns the present controversy is now called River Street, and its southerly terminus on the map was at the highwater mark of said river.

"(5) That subsequent to the filing of said map Col. Stevens conveyed several lots or parcels of the land shown thereon to different persons, and describing the lots so conveyed by reference to the map and the streets delineated thereon, and that other owners deriving title from or under him have since conveyed lots within said plan, describing the same by reference. to the map and streets.

"(6) That at the time of the filing of said map in the clerk's office the title to all the land fronting the said Stevens property and lying between high and low water mark of the west bank of the Hudson River was in the State of New Jersey.