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196 U. S.

Argument for Plaintiff in Error.


this suit is brought, occurred upon the main sea and to the eastward of the Sandy Hook peninsula, and at a distance of more than a mile to the eastward of low water mark, upon the exterior line thereof."

The court denied the motion and defendant excepted. The jury found a general verdict for plaintiff below, and assessed the damages. Judgment was entered thereon, which was affirmed by the Appellate Division of the Supreme Court, and a writ of error from the Court of Appeals was denied. This writ of error was then allowed, and the case submitted on motions to dismiss or affirm.

Mr. Everett P. Wheeler for plaintiff in error:

The effect of the statutes and deeds was to vest in the United States title in fee to Sandy Hook and exclusive jurisdiction over it. All the prerequisite conditions were complied with. As to the effect of jurisdiction of the United States over lands ceded by the States see Story, Const. § 1227; In re Ladd, 74 Fed. Rep. 31; United States v. Tucker, 122 Fed. Rep. 518; Commonwealth v. Clary, 8 Massachusetts, 72; United States v. King, 34 Fed. Rep. 302. As the States have no longer legislative power over military tracts, so their inhabitants have none of the rights of citizens of the States to which they originally belonged. Sinks v. Reese, 19 Ohio St. 306; Opinion of the Justices, 1 Metc. (Mass.) 580; 6 Op. Atty. Gen. 577; United States v. Carter, 84 Fed. Rep. 622.

The jurisdiction over Sandy Hook acquired by the United States included the littoral waters lying to the eastward. Such waters within three miles are subject to the jurisdiction of the sovereign. Wheaton Int. Law, $ 177; Dana's note to same (105), citing Bynkershock; Pomeroy on Int. Law, § 144; 1 Hautefeuille, Droit des Nation Neutres, 53; Ex parte Tatem, 23 Fed. Cas. 708. Jurisdiction over these waters is vital to the United States and a matter of indifference to New Jersey, and to realize the object of the cession control of the waters is essential and when the use of a thing is granted everything


Argument for Plaintiff in Error.

196 U.S.

is granted by which the grantee may have and enjoy the same. Kent's Comm. 467, note g; United States v. Appleton, 1 Sumner, 492; Potter v. Boyce, 73 App. Div. N. Y. 383; S. C., 176 N. Y. 551; Huttemeier v. Albro, 18 N. Y. 48; Richardson v. Bigelow, 15 Gray (Mass.), 154; Voorhees v. Burchard, 55 N. Y. 98; Simmons v. Cloonan, 81 N. Y. 557; Middleton v. La Compagnie, &c., 100 Fed. Rep. 866, distinguished.

The effect of the transfer of jurisdiction over Sandy Hook and the adjacent waters was to deprive New Jersey of power to legislate for that region, and the death act of that State, passed subsequent to the cession, has no operation there. Before the cession, Sandy Hook was subject to the common and statute law of the State of New Jersey. The cession did not ipso facto abrogate this body of law, for it is well recognized that change of sovereignty over territory does not ipso facto work a general change of the law then existing. Halleck Int. Law, ch. 34, § 14; Am. Ins. Co. v. Canter, 1 Pet. 511, 542; Commonwealth v. Chapman, 13 Metc. (Mass.) 68; Chappell v. Jardine, 51 Connecticut, 64; Chi. & Pac. Ry. Co. v. McGlinn, 114 U. S. 542; Barrett v. Palmer, 135 N. Y. 336; Madden v. Arnold, 22 App. Div. N. Y. 240. The act of cession was in 1846. The statute giving a right of action for death by wrongful act in 1848. This act is no more operative upon the Sandy Hook peninsula than legislation of the State of Maryland enacted after the cession of the District of Columbia is operative in that District.

Such a cession severs the territory ceded from all further political relations with the State of which it was formerly a part. Thenceforth all legislation must be by the new sovereign. In re Ladd, 74 Fed. Rep. 31; Mitchell v. Tibbets, 17 Pick. (Mass.) 298; Commonwealth v. Clary, 8 Massachusetts, 72, Contzon v. United States, 179 U. S. 191.

The proviso in the New Jersey act as to retention of jurisdiction in certain cases contains nothing at variance with this proposition. Ft. Leavenworth R. R. Co. v. Lowe, 114 U. S. 525; United States v. Cornell, 2 Mason, 60; United States v.

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196 U. S.

Argument for Plaintiff in Error.

Meagher, 37 Fed. Rep. 875; Lasher v. Texas, 30 Tex. App. 387; United States v. Hammond, 1 Cranch. C. C. 15. The New Jersey laws referred to in the proviso then in operation were laws then in force and not those subsequently passed. McConihay v. Wright, 121 U.S. 201; Morris Canal Co. v. The State, 24 N. J. Law, 62; Griswold v. Dock Co., 21 Barb. (N. Y.) 225.

Under the Act of Congress ratifying the boundary agreement between the States of New York and New Jersey, the boundary of the latter State extends only to the main sea, that is to low water mark along the coast.

This agreement was adopted by statutes of New York and New Jersey. Ch. 2, Gen. Laws N. Y. $7, 1 Heydecker's ed. 69; 3 Gen. Stats. N. J. 3464, and was ratified by Congress, June 28, 1834, 4 Stat. 708. It was invalid until so ratified, Const. U. S., Art. I, $ 10.

The effect of this statute of the United States was to vest in the United States jurisdiction over the littoral waters to the south and east of the coast line of New York and New Jersey. The statute and the agreement provide that this line shall run “to the main sea." These are technical words and it is well settled that when the phrase "main sea” or its equivalent

“ “high seas,” is used, it means the ocean from low water mark. General Iron Screw Co. v. Schurmans, 1 J. & H. 180; The Saxonia, 1 Lushington, 410; The Franconia, L. R. 2 Exch. Div. 63; United States v. Kessler, Baldwin, 15, 35; Lennan v. Hamburg American S. S. Co., 73 App. Div. N. Y. 357, distinguished; 1 Blackstone Comm. 110; Bouvier, Title, High Seas; Coulsford and Forbes on Waters, 11; United States v. Ross, 1 Gallison, 624.

The agreement ratified by Congress shows on its face that it was drawn by eminent lawyers, one of whom, Benjamin F. Butler, soon after became Attorney General of the United States, and had been one of the revisers of the statute law of the State of New York. Another, Lucius Q. C. Elmer, was the author of the Digest of the Laws of New Jersey. Both of


Argument for Defendant in Error.

196 U.S.

these distinguished men were familiar with legal terms. If it had been their intention in drawing the agreement between the States to maintain the old jurisdiction of their respective States over the littoral waters within the three-mile limit, they certainly would have said so. The legislatures of the two States and Congress certainly would have used language apt for this purpose. See Art. II of treaty with Panama, Stat. 1903-04, 149 of Treaties.

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Mr. Gilbert D. Lamb for defendant in error:

This court has no jurisdiction and will entertain none unless it affirmatively appears in the record that a Federal question was, of necessity, passed upon by the court below, and against the claim of plaintiff in error-actually and properly set up. Giles v. Teasley, 193 U. S. 146; Water Co. v. Electric Co., 172 U. S. 475, 487; Eustis v. Bolles, 150 U. S. 361.

Plaintiff in error claims that the cession by the State of New Jersey to the United States of America of a certain strip of land at Sandy Hook vested in the United States exclusive legislative jurisdiction over the littoral waters extending three miles to the eastward of the coast line thereof, and that therefore a verdict should have been directed. The plaintiff in error explicitly limited its claim to exclusive Federal jurisdiction over the adjoining waters to the three-mile limit. The record, however, discloses evidence that the collision in question occurred beyond the three-mile limit.

The vessel sunk was owned by a New Jersey corporation and as such was subject with its occupants to the legislative jurisdiction and law of New Jersey, while on the high seas and wherever the situs of the collision, the verdict as rendered, was right. Int. Nav. Co. v. Lindstorm, 123 Fed. Rep. 475; McDonald v. Mallory, 77 N. Y. 546; Crapo v. Kelly, 16 Wall. 610; Code Civ. Pro. (N. Y.) § 522.

The claim of Federal jurisdiction, not being properly set up in the record, the writ of error should be dismissed. So held in Hamburg-American S. S. Co. v. Lennan, 194 U. S. 629, and

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see authorities cited and S. C., 73 App. Div. N. Y. 357; The Alene, 116 Fed. Rep. 57.

The rights of the United States at Sandy Hook extend only to low water mark. Middleton v. La Compagnie &c., 100 Fed. Rep. 866; Fort Leavenworth R. R. v. Lowe, 114 U. S. 525.


MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.

The assertion by plaintiff in error that Federal questions were decided by the action of the courts below turns on the denial of the motion to direct a verdict on the two grounds above set forth.

As to the first ground, the contention is that the act of Congress of June 28, 1834, 4 Stat. 708, c. 126, giving consent to the agreement or compact between the States of New Jersey and New York in respect of their territorial limits and jurisdiction, dated September 16, 1833, vested exclusive jurisdiction in the Federal Government over the sea adjoining the two States. But there is absolutely nothing in the agreement and confirmatory statutes abdicating rights in favor of the United States, and the transaction simply amounted to fixing the boundaries between the two States. Laws New York, 1834, p. 8, c. 8; Laws New Jersey, 1834, p. 118. The first proposition raised no Federal question.

As to the second ground, the contention is that the cession by New Jersey to the United States of jurisdiction over a certain strip of land at Sandy Hook vested in the United States exclusive legislative jurisdiction over the littoral waters extending three miles to the eastward of the coast line thereof.

Yet there was evidence introduced on behalf of defendant that the collision took place outside of that limit. And the trial court was not requested to instruct the jury that if they found the collision to have occurred within that limit the verdict should be for the defendant.

The charge of the court is not before us, nor was any excep

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