Argument for Plaintiff in Error. the case of Jersey City v. Morris Canal Company, 1 Beasley, (12 N. J. Eq.,) 547. That was decided in 1859. In that case the court held that by dedicating the street to the water the public, represented by the city authorities, had the right to extend it to tide-water, and that the fact that the legislature had authorized the erection of a canal and basin between its original terminus at the shore and the new terminus at tidewater, could not prevent the city from extending the street across the canal basin to the new tide-water line; and although in that case the basin, pier, and other works of the Morris Canal Company had been erected by competent and lawful authority, and occupied the place required for the extension of this street to the new tide-water line, the court held that, notwithstanding such obstruction, the common council had the right to carry the street to the water. 3. Third Street. - An attempt is made to withdraw Third Street from the operation of the decision of the Court of Errors in the Fourth Street case by reference to certain provisions of the charter of the city of Hoboken. Subdivision 7 of the 40th section of that charter confers upon the Common Council power to regulate and order the building of a dock at the foot of Third Street, in said city, at the expense of said city, such dock not to exceed in width the width of said street, and to regulate said dock and the use thereof when built, and the rates of wharfage, such wharfage to be received by said corporation for their use and benefit; in connection with the 53d section of the same charter, by which it is enacted that the Common Council shall have power to take any land that they may adjudge necessary for the opening of Third Street, upon paying to the owner the fair value of the lands taken and of the improvements thereon, and the damage done to any distinct lot or parcel, or tenement, by taking part of it for such purpose, provided that the owners of property benefited thereby shall bear a just and equitable proportion of the expenses and costs of opening said street. The argument is, that these two sections are to be construed together, and that the power to open Third Street was in aid of the power to build the dock, and that the power to take lands by condem Argument for Plaintiff in Error. nation was an implied legislative admission that the street could not be extended to the water without crossing lands which would be required to be condemned and paid for. To this view there is a sufficient answer. Third Street could be opened west much beyond the limit. of the dedication of the Loss map. It is found as a fact in the case that the territorial limits of Hoboken embrace a large tract of real estate adjoining the land in the limit of the Loss map on the west, which, of course, was not affected by the dedication, so that the extension of Third Street westerly on such additional land could only be accomplished by the city acquiring in some way the right to the lands needed for such extension. This grant of power can, therefore, as well have referred in the legislative mind to the extension of Third Street west, as to the extension of Third Street to the river. But even if the legislature had by express terms conferred upon the common council the power to condemn such lands as might be necessary to extend Third Street from the original shore line to the Hudson River, such grant of power could not be held to be a legislative decision that such land could not be taken without condemnation. That was a question which the legislature was not competent to decide. It was a judicial question, not a legislative one, and if there was even a doubt in the legislative mind as to the power of the common council to extend Third Street over reclaimed land to the water for the purpose of building the dock, the power to condemn, if it should be necessary, might well be conferred, without its being tortured into a legislative declaration that the power was necessary to be exercised in that particular case. 4. Riparian Commissioners' Grants. The only remaining circumstance which distinguishes any of the present cases from the Fourth Street case, is the fact that some of the defendants claim to have obtained grants for lands under water, including the premises claimed in these suits, which, being grants from the State, operated to vacate the streets or to extinguish the public right to streets over the lands thus granted. These grants were made by the Riparian Commissioners under the authority of the act of 1869, before referred Argument for Plaintiff in Error. to, a copy of which is printed in the pamphlet annexed to the record. These grants being in the name and on the part of the State of New Jersey, by persons acting as agents for the State are subject to the same rule of construction which applies to grants made directly by the legislature, namely, that nothing passes by implication; in fact, a still more restrictive construction will apply to these grants because they are not made by the legislature, but in pursuance of power delegated by the legislature, and the act delegating the power to the Riparian Commissioners to make the grants does not authorize them to vacate that street. They have no authority whatever over the subject. The vacation or laying out of a street is a municipal or legislative act. The Riparian Commissioners deal only with the proprietary rights of the State, and have no jurisdiction whatever over any such question. American Dock and Improvement Company v. Trustees of Public Schools, 8 Stewart, (35 N. J. Eq.,) 281. 5. Alluvion. The court below, in its fourth conclusion of law holds that the State has the right to fill in and make land as far as its ownership extends, and that the soil thus acquired was in no sense alluvion or accretion, which became the property of the shore owner, but remained the land of the State or its grantees, and that no right or authority existed in the shore owner, by dedicating to the public streets to the limits of her ownership, to charge such newly made land with the burden of an easement over it. However correct the law as thus stated may be, it has no application to the facts of this case, for it is found as a fact that the filling and reclamation was done by the Hoboken Land and Improvement Company and their grantees, and that such land under water was in front of and adjoining the real estate purchased by that company. We contend that when the reclamation is done by the shore owner the land reclaimed partakes of the nature of alluvion or accretion, and is assimilated in its title, estate and incidents to those of the land to which it became attached. Jersey City v. Morris Canal Co., supra; Lockwood v. New York & New Haven Railroad Co., 37 Conn. 391; Campbell v. Laclede Gas Opinion of the Court. Co., 84 Missouri, 352, 372; Benson v. Moore, 86 Missouri, 352; Steers v. Brooklyn, 51 N. Y. 51. MR. JUSTICE MATTHEWS, after stating the case, delivered the opinion of the court. In the year 1873 the Court of Errors and Appeals of New Jersey decided the case of the Hoboken Land and Improvement Co. v. Hoboken, 7 Vroom, (36 N. J. Law,) 540. It was an action of ejectment for the recovery of the possession of a strip of land, constituting the extension of Fourth Street, as laid out on the Loss map, over lands below the original highwater mark, reclaimed by the plaintiff in error in that suit, continued to the new water front. The unanimous judgment of that court affirmed the right of the city of Hoboken to the premises in dispute, being the extension of that street as a public highway. The foundation of that judgment is the dedication, according to the Loss map, of the streets delineated upon it as extending to the line of high-water mark at that date, and the nature of the title acquired by the Hoboken Land and Improvement Company, under the terms of their charter, act of February 21, 1838, to the land made by filling in, in front of the original high-water mark, upon and across which it was proposed to extend the street so as to secure access in behalf of the public to the stream of the river. It is argued that, as the present defendants claim title through the Hoboken Land and Improvement Company, to premises similarly situated and equally affected by the original dedication, the judgment of the Court of Errors and Appeals of New Jersey in that case conclusively establishes the law applicable to the present, and requires a reversal of the judgments of the Circuit Court of the United States. It becomes necessary, therefore, at the outset, to ascertain and define the terms and scope of that judgment. In that case the court said (p. 546): "The title to the soil between the high-water line, as shown on Loss's map, and the present high-water line was originally in the State. It became the property of the defendants by reclamation under the powers was. Opinion of the Court. contained in their charter. The contention was that it was not competent for Colonel Stevens to impress upon lands, the property of the State, a servitude such as the plaintiffs are seeking to have them appropriated to, and that when the defendants acquired title under legislative permission, they were entitled to hold such lands unimpaired by the servitude imposed upon the upland. The first branch of this proposition is conceded. But whether it will be available to his grantees to defeat the present claim of the city will depend upon considerations incident to the nature and effect of the original dedication. The street as dedicated extended to the high-water mark as it then There is no street shown on the map or in fact along the river in which Fourth Street might terminate. River Street, which is the first street crossing Fourth Street parallel with the river, is laid down on the map at a distance of about seventy-five feet from the high-water line as it appears on the Loss map. The location of Fourth Street with its terminus at the water, demonstrates conclusively that its purpose was to provide a means of access for the public to the navigable waters, and such was the scope and purpose of the dedication." The court then refers to the case of New Orleans v. The United States, 10 Pet. 662, 717, as showing that, according to the recognized law concerning dedications to public use, a grant of land bounded on a stream which has gradually changed its course by alluvial formations extends to the new boundaries, including the accumulated soil, and that, on the same principle, it had been held in that State in the case of Jersey City v. Morris Canal, 1 Beasley, (12 N. J. Eq.,) 547, that a dedicated street terminating at the waters of a navigable rive: is continued to the new water front obtained by filling in in front on the shore by the owner of the land over which the street was dedicated; and to the same point the court cites the cases of The People v. Lambier, 5 Denio, 9, and Barclay v. Howell's Lessees, 6 Pet. 498. The learned judge, delivering the opinion of the New Jersey Court of Errors and Appeals, continues thus (p. 548): "In my judgment these cases declare the law correctly on this subject. The essence of the gift is the means of access to the public waters of the river, |