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Attorney-General v. Sooy Oyster Co.

78 N. J. L.

by direct or by collateral attack. In other words in order to convict the court below of legal error it is necessary for the plaintiff in error to maintain the proposition that lands under tidewater, if they be also natural oyster beds, are not within the generic jurisdiction of the riparian commissioners. Looking more closely at this proposition, two things are to be noted-first, that the more inclusive term, viz., lands under tidewater describes eo nomine an integral portion of the public domain, and second, that the less inclusive term, viz., natural oyster beds indicates merely certain characteristics or qualities that may or may not be possessed by any given portion of such tidal lands, viz., rigid points of fixation to which embryo oyster spats have attached themselves. This being so, and the riparian commissioners being empowered to grant lands under tidewater, and being forbidden to grant such parts of such lands as possessed the foregoing characteristic, it is entirely obvious that in the performance of their duties such commissioners must of necessity determine whether a given piece of tidal land does or does not possess the characteristics that constitute natural oyster beds, and that such determination must enter into and be evidenced by the act done in performance of this official duty. If this be so, then upon entirely familiar principles, the making of a grant by the riparian commissioners imperatively imports and evidences that such determination, whether right or wrong in point of fact, had been made by them. A riparian grant therefore, in the present state of our statutory law, bears within its own bosom the necessary implication that the commissioners have determined that the lands thus granted did not possess the statutory characteristics that would have prohibited their being granted. If the actual fact be otherwise, the riparian commissioners were, none the less, acting within their jurisdiction in determining the question of fact with respect to which, upon the hypothesis, they reached an erroneous conclusion. For the rule already announced has this corollary, viz., that the existence of generic jurisdiction includes the right to determine questions of fact on which the existence of a specific jurisdiction depends; which determi

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Attorney-General v. Sooy Oyster Co.

nation, being judicial in character, falls within the established rule respecting the conclusive effect to be given to the findings of special tribunals acting within the scope of their authority.

Assuming, therefore, that, in the case in hand, the riparian commissioners, by reason of their erroneous determination of a question of fact, were without authority to make the grant under which the defendant claimed title, it is none the less true that such error did not go to the generic jurisdiction of the commissioners, but, on the contrary, presupposes such jurisdiction as the basis of the exercise of the very judgment which, upon the hypothesis, turned out to be erroneous. The conclusion therefore is irresistible that testimony whose only tendency was to show that the riparian commissioners committed error in the determination of a question of fact which they had the requisite jurisdiction to determine appertained only to the specific jurisdiction of the commissioners to make the particular grant, and hence, under the rule already laid down, was not available for the purposes of a collateral attack upon the validity of such grant.

It will serve, I think, a useful purpose to say, at this point, that if the legislature had itself specified what lands should not be granted, as, for instance, if it had forbidden the granting of lands beneath the Mullica river or under the Kill von Kull, a different question might be presented. For, in such case, the essential feature on which the present case turns would be wholly lacking, viz., the necessity of a determination by the riparian commissioners of a question of fact on which their specific jurisdiction to make the particular grant depended. In such supposed case the lands so specified by the legislature would, in the language of the cases, "be withdrawn from sale." See cases cited, post.

Precisely what we are deciding therefore is that in the exercise of their general jurisdiction to grant lands under tidal waters it was in the present case necessary for the riparian commissioners to determine whether or not the lands in dispute were natural oyster beds and that the subsequent making of a grant thereof was in legal intendment tanta

Attorney-General v. Sooy Oyster Co.

mount to a provisional adjudication that such lands did not possess such characteristics and that such adjudication, however erroneous in point of fact, and whether induced by error of judgment or by active or passive misrepresentation, cannot be called in question upon the trial of an action of ejectment by the production of testimony as to the actual character of said land.

78 N. J. L.

The result thus reached by the consideration of the nature and incidents of grants made by our riparian commissioners accords with judicial decisions elsewhere regarding the grants or patents of the land departments of both the state. and federal governments.

"A patent," said Mr. Justice Grier, in United States v. Stone, 2 Wall. 525, "is the highest evidence of title and is conclusive as against the government and all claiming under junior patents or titles until it is set aside or annulled by some judicial tribunal."

In Johnson v. Towsley, 13 Wall. 72, Mr. Justice Miller, speaking of the general land office, stated the general doctrine to be "that when the law has confided to a special tribunal the authority to hear and determine certain matters arising in the course of its duties the decision of that tribunal within the scope of its authority is conclusive upon all others."

To the same effect is the language of the same judge in Moore v. Robbins, 6 Otto 530.

In St. Louis Smelting Co. v. Kemp, 14 Otto 636, Mr. Justice Field, speaking of a patent of the land office, said, touching a decision of the officers of that department:

"In that respect they exercise a judicial function, and therefore it has been held in various instances by this court that their judgment as to matters of fact, properly determinable by them is conclusive when brought to notice in a collateral proceeding. Their judgment in such cases is like that of other special tribunals upon matters within their exclusive jurisdiction, unassailable except by a direct proceeding for its correction or annullment."

This language is quoted with approval by Mr. Justice Brown in the case of Noble v. Union River Logging Railway

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Attorney-General v. Sooy Oyster Co.

Co. already referred to. Ard v. Brandon, 39 U. S. (L. ed.)


It is needless to continue citations to this same effect that might be multiplied to an almost indefinite extent.

There is, however, a class of cases that presents so strict an analogy to the one under consideration as to justify one further citation. The cases referred to arose under the act of congress granting swamp lands to the states, and the following quotations from the opinion of Mr. Justice Miller in French v. Fyan, 3 Otto 169, make it perfectly clear that the question in that case was the same as the one we are considering, viz., the legal effect of a determination by the proper public officer as to the characteristics of certain lands upon which the authority of such officer to make a grant of such lands depends. The similarity of the two cases both as to the legal question involved, and the manner in which it was raised in the collateral proceeding, appears from the opinion, the pertinent parts of which are as follows:

"An action of ejectment in this case was tried by the court below without a jury by agreement of the parties and the only finding made by the court was a general one in favor of the defendant on which judgment was rendered in bar of the action. The single question in this case is raised on the refusal of the court to receive oral testimony to impeach the validity of a patent issued by the United States to the State. of Missouri for the land in question under the act of 1850, known as the swamp-land grant, the purpose being to show by such testimony that it was not in point of fact swamp land within the meaning of that act. The bill of exceptions shows that the land was certified in 1854 (under another act to a mesne grantor), and the plaintiff, by purchase, became vested with such title as this certificate gave. To overcome this prima facie case, defendant gave in evidence the patent issued to Missouri in 1857 under the Swamp Land act, and it was admitted that defendant had a regular chain of title under this patent. It was at this stage of the proceeding that the plaintiff offered to prove, in rebuttal, by witnesses, who had known the character of the land in dispute since VOL. XLIX. 26

Attorney-General v. Sooy Oyster Co.

1849 till the time of the trial, that the land in dispute was not swamp and overflowed land made unfit thereby for cultivation, and that the greater part thereof is not, and never has been, since 1849, wet and unfit for cultivation. But the court ruled that since the defendant had introduced a patent from the United States to the state for said land under the act of September 28th, 1850, as swamp land, this concluded the question, and the court rejected the said parol testimony to which ruling of the court the plaintiff then and there excepted."

It is evident that the legal question thus presented is precisely the same as the one we are called upon to decide.

In affirming the judgment of the court below and approving its ruling in rejecting the proffered proof, Mr. Justice Miller said that the only question was "whether in an action at law in which these evidences of title came in conflict, parol testimony can be received to show that the land in controversy was never swamp land, and therefore the patent issued to the state under that act is void."

78 N. J. L.

The analogous question before us is whether parol testimony can be received to show that the land in dispute was natural oyster beds, and hence the grant thereof made under our Riparian act was void.

In disposing of this question Justice Miller said: "We have so often commented in this court on the conclusive nature and effect of such a decision when made and evidenced by the issuance of a patent that we can do no better than to repeat what was said in the case of Johnson v. Towsley, 13 Wall. 72." The opinion then quotes liberally from the earlier decision and concludes: "We see nothing in the case before us to take it out of the operation of that rule, and we are of opinion that, in this action at law, it would be a departure from sound principle and contrary to well-considered judgments in this court and in others of high authority to permit the validity of the patent to the state to be submitted to the test of the verdict of a jury on such oral testimony as might be brought before it. * * * The principle we have laid down is in harmony with the system which governs the rela

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