Attorney-General v. Delaware and Bound Brook R. R. Co. 14. That viaduct is not a toll bridge, but merely the railroad connection of two railroads; a highway by railroad, over the river. The company so operating it is not chargeable with a usurpation of a franchise to take tolls. 15. Pennsylvania gave authority to build this bridge by the act of incorporation of the North Pennsylvania Railroad Company, in 1852. New Jersey has acquiesced by her silence in the construction which Pennsylvania thus put upon the compact of 1783. 16. Authority to bridge the river has been given by both states. Long lapse of time between the giving of the consents does not affect it. 17. A doubt as to the authority of a corporation to do an act is fatal to an application for an injunction to restrain such act on the ground of want of authority. 18. Where a party acting bona fide and upon its not unreasonable construction of a public grant, has been permitted to expend a large sum of money in the construction of a public work, in the confidence that it possessed all requisite legislative authority, without a word of protest or remonstrance till the work is practically completed, equity will refuse its aid, even to the state, leaving it to its remedy at law. Motion for injunction. On bill and answer and order to show cause why injunction should not issue. Mr. J. Vanatta, Attorney-General, and Mr. Cortlandt Parker, for the motion. Mr. A. Browning, Mr. Williamson, and Mr. Ashbel Green, The information complains that the defendants are constructing a bridge across the Delaware river, and so have been and are guilty of purpresture, and that the structure is a public nuisance. It prays that they may be restrained from erecting or completing it, and from placing or raising its abutments, piers or supports, which, it alleges, are to be placed in the waters of the river, and from using and maintaining the structure, and taking tolls or fares for passing or repassing on or over it; and that it may be declared to be a purpresture and public nuisance, and that the defendants may, by the decree of this court, be ordered to abate so much of it Attorney-General v. Delaware and Bound Brook R. R. Co. as shall have been erected before the final hearing, and to remove the materials from the river. It alleges that the Delaware is the boundary line between New Jersey and Pennsylvania, and is now, and of right always has been, a public highway in its whole length and breadth, free and common to the citizens of this and other states, and is navigable for many purposes of trade and commerce at the point where the bridge is being erected; that the compact of 1783, between New Jersey and Pennsylvania, is in full force, and has, ever since its ratification by the respective legislatures, been in all respects recognized as binding, and has been observed and conformed to by the parties to it until its violation and infringement by the defendants, in erecting the viaduct; that the defendants claim to have been incorporated under the general railroad law of this state, and, in their articles of association, their road is described as beginning at a point in the boundary line between the States of Pennsylvania and New Jersey, in the middle of the Delaware river, in the township of Ewing, in the county of Mercer, in this state, somewhere between an island in the river called Slack's Island, northward of Yardleyville, in the State of Pennsylvania, and another island in the river called White's Island, southward of Yardleyville; and the termination point of the road is in the southerly line of the railroad of the Central Railroad Company of New Jersey, at or near the village of Bound Brook; that the defendants, under pretence of constructing a railroad according to their articles of association, have commenced the erection of the bridge in question across the Delaware (an inter-state river), from a point in the township of Ewing, in Mercer county, in this state, to a point in the township of Lower Makefield, in Bucks county, in Pennsylvania, and that they propose to use it, when finished, for their road; that they allege that the bridge is part of their road, and that they intend to charge and receive fares or tolls from persons using the bridge; whereas the Attorney-General insists that the bridge is not a part of the road, and that the attempt to erect the structure, and take tolls for its use, is unlawful. He Attorney-General v. Delaware and Bound Brook R. R. Co. also insists that the general railroad law does not, in terms or by implication, confer on the defendants the right to erect any bridge over the Delaware; that the erection and construction of the bridge is a direct and positive infraction of the compact of 1783, between the states, and that the power to erect a bridge over the Delaware can only be conferred by concurrent legislation of both states, and that neither state can, of its own authority, authorize a corporation to place piers, erect a bridge, take tolls, and construct a highway over the river, but such franchise can only be conferred by concurrent legislation; that not only has there been no concurrent legislation in this case, but there has been no grant of the franchise to the defendants from either state; that the grant of the franchise cannot be implied from any act or law of this state, and that the structure, therefore, is without authority of law, and an invasion of the sovereignty of this state, and if the erection and construction be permitted, it will be a purpresture, and will be liable to be abated as such. The information states that the erection of the bridge at the point where it is located will greatly imperil, obstruct, and interrupt the use of the river as a highway, and that the bridge will be a common nuisance to the people of this state. It further alleges that the defendants, on application to them, have refused to remove the structure, or to desist from their purpose of finishing and using it. The defendants have answered fully. The answer insists, and on the argument it was urged, that the information cannot be maintained in its present form, inasmuch as it is exhibited without a relator. This objection is not well taken. The practice is settled. Where, as in this case, the suit immediately concerns the rights of the state, the information is generally exhibited without a relator. Laussat's Fonblanque, p. 5, n; Mitford's Plead., by Jeremy, 99; 1 Newland's Prac. 55; Blake's Chancery Prac. 40; Cooper's Eq. 101, 102. While in practice it is usual to name a relator, and the contrary course may tend to oppression, since, if there is no relator, the defendant can recover no costs, still in matters of Attorney-General v. Delaware and Bound Brook R. R. Co. purely public concern, as where the property of the state, owned by it in its political capacity, or where public rights in which no merely private interest is involved, are in question, the courts are open to the state without requiring security for costs. The information is filed to remove out of the Delaware the viaduct built by the defendants and the North Pennsylvania Railroad Company, (about one-half by each company), across the river near Yardleyville, above the falls of Trenton, and therefore above tide-water. The Attorney-General claims that the structure is a purpresture; that it is a public nuisance, and that its maintenance and use for the purposes for which it is designed will be a usurpation of a franchise, and will be a violation of the compact of 1783, between this state and Pennsylvania. The defendants, on the other hand, allege that the land on which the viaduct is built is not the property of the state, but is private property; that, by the provisions of the general railroad law, under which they were incorporated, they are authorized to construct the bridge in question, and that its erection and maintenance are no violation of the compact, and that consent to its erection has been given by the State of Pennsylvania. The royal charters for the territories in which what are now the States of New Jersey and Pennsylvania were embraced, bounded them on the Delaware; that in which this state was included, by "the east side" of the river, and the other, "on the east" by the river. The crown was advised in 1721 that these grants did not include the river, or any part of it, or the islands therein, and that the right to them remained in the crown. Chalmers' Opinions 90. By the treaty of peace between the United States and the King of Great Britain, in 1783, the latter relinquished all claims to government, propriety and territorial rights in the former. The consequence was that the river became, by conquest, the boundary between the states; and being such, and the original property being in neither of them, and there being then no Attorney-General v. Delaware and Bound Brook R. R. Co. convention between them in regard to it, each state, by the rule of international law, had dominion to the middle of the stream. At the close of the Revolution, the common law of England was in force in this state; for, by the constitution of July 2d, 1776, it was provided that that law should remain in force in New Jersey, until altered by the legislature. By the common law, the ownership of the soil of all rivers not navigable, that is, in which the tide does not ebb and flow, is in the riparian owners. In the case of public rivers which, though not navigable in the common law sense of the term, are, nevertheless, navigable in fact, the ownership of the soil is in the riparian owners, subject to the public right of navigation. And so, too, though the river be declared (as was the Delaware, by act of the colonial legislature of New Jersey in 1771, [Allinson's Laws 347] and the compact between this state and Pennsylvania in 1783) to be a public or common highway. Juxon v. Thornhill, Cro. Car. 132; Hale's De Jure Maris, c. 3; Harg. Law Tracts, p. 9; Lord Fitzwalter's case, 1 Mod. 105; 3 Kent's Com. 427; Angell on Watercourses, §§ 535, 545. It has been held, even in the case of the great river Mississippi, that the common law, and not the civil law, governs; that that river, above the ebb and flow of the tide, is not navigable in the common law sense of the term, and that the riparian owner owns the soil to the middle of the river; and further, that the act of Congress establishing the river as the western boundary of the Mississippi territory, and adopting the common law for the government of that territory, fixed the boundary line at the middle of the river, and that, therefore, the right of riparian owners on the east side of the Mississippi must be determined by the common law; and still further, that their rights to the soil of the river, or to the use of the bank, are not affected by the fact that the act of Congress makes the river a common highway, free to every citizen without tax or duty. Morgan v. Reading, 3 S. and M. 366; Magnolia v. Marshall, 39 Miss. 110. In Ohio it has been adjudged that the ordinance of 1787, for the government of the North Western territory, which declares |