Attorney-General v. Sooy Oyster Co. 78 N. J. L. The act of April 4th, 1893 (Gen. Stat., p. 833, pl. 148, ff.), for the first time provides for an oyster commission. By its first section the natural oyster beds of the state are divided into seven districts, of which District No. 5 is "the bays and waters of Atlantic county." It may be contended with some reason that the effect of this act was to declare all the bays and waters of Atlantic county to be natural oyster beds, and if the only meaning of the expression was to designate a quality or characteristic of the land, I should think this the proper construction; it is, of course, not the proper construction, if my view is correct, that natural oyster beds are a definite portion of the land under water sufficiently recognizable to justify the legislature in making it a crime to remove oysters therefrom. My view is supported by section 3 of the act (Gen. Stat., p. 833, pl. 150), which makes it the duty of the commissioners to make a careful inspection of the natural oyster grounds in their respective districts and to cause a supply of shells to be spread on the ground. The commissioners could hardly make this careful inspection unless the natural oyster beds were defined with some approach to accuracy, perhaps as close an approach as would be possible in the case of a mineral lode with its veins and all the spurs, dips and angles. If such natural oyster beds were sufficiently defined to be recognized by the commissioners, they could be recognized with equal facility by the purchaser of a riparian grant. Similar provisions are found in the act of May 17th, 1894. Gen. Stat., p. 835, pl. 161, and p. 836, pl. 166. New districts were created by the act of 1896. Pamph. L., p. 186. The waters of Atlantic county were still included but divided between two districts. With the act of 1899, relating to Delaware bay and Maurice river cove, a new policy began and leases by the state oyster commission were authorized, but certain named oyster beds and any other commonly known natural oyster bed in Delaware bay or Maurice river cove, or the creeks and rivers emptying therein, were reserved from the power to lease. The policy of leasing was extended to Ocean county in 1902. Pamph. L., p. 170. The act was 49 Vroom. Attorney-General v. Sooy Oyster Co. not extended to Atlantic county until 1905, which was after the grant in the present case was made. Under such legislation the oyster grounds subject to lease by the oyster commission must necessarily be withdrawn from the jurisdiction of the riparian commission. The importance of the legislation in its bearing on the present grant lies in the fact that it shows a consistent purpose on the part of the legislature to separate lands under tidewater into two classes, those which are natural oyster beds and those which are not natural oyster beds. Since 1888 the first class have been withdrawn from the power of the riparian commission. No one would assert that if the legislature had forbidden the commission to convey lands under the waters of the Mullica river, the commissioners could convey any such lands and have their conveyance free from collateral attack in an action of ejectment. But such a description would be only a little, if at all, more definite than the exception of natural oyster beds. It would certainly be necessary to determine where the Mullica river is, and while, no doubt, a natural boundary of that kind generally has a definite location at any particular point of time, not only may the river shift its bed (some rivers shift very far and very often) so that the determination of its location at the time of the grant would rest in parol evidence, but the bounds of the river itself may be indefinite. We have only to recall the controversy lasting for so many years between the colony of New Jersey and the colony of New York as to the proper location of the river Delaware at forty-one degrees forty minutes north latitude, to realize that the geographical location of a river may be open to dispute, and, of course, the determination of the question must depend on parol evidence. I have assumed that the act of 1888 is still in force. The act of March 20th, 1891, evinces no intention to repeal the act of 1888. It was evidently meant to apply only to such lands as were still within the control of the riparian commission, and to change the procedure for acquiring grants, not to extend the power of the commission to lands which only three years before had been withdrawn and which were the object Attorney-General v. Sooy Oyster Co. 78 N. J. L. of the sedulous care of the legislature for the common benefit, as shown by the series of statutes above referred to. The judgment should be reversed and a venire de novo awarded. I am authorized to say that Justices Bergen and Minturn and Judges Bogert, Vroom, Gray, Dill and Congdon concur in these views. MINTURN, J. Concurring in the views expressed by Mr. Justice Swayze, I am led to oppose this grant by the riparian commissioners upon the further ground that the only tenable view which its supporters advance to uphold it in a court of law against collateral attack is based upon the assumption that somewhere between the lines of the legislation affecting this commission there exists in view of the general power conferred to sell riparian lands, a power "tantamount to an adjudication" to determine whether or not the lands so conveyed are part of the natural oyster grounds of the state. But manifestly if it can be demonstrated that the power to make such an adjudication has been expressly vested by the legislature, not in the riparian commissioners, but in an entirely distinct, independent and co-ordinate commission, it must be perceived that the syllogism upon which such a claim is constructed is entirely fallacious. In 1888 the legislature, for the protection of the great oyster industry of the state, and as a sequence to the consistent protective legislation which had its genesis in the year 1846 (Act for the protection of clams and oysters, approved April 14th, 1846), and which has been supplemented by legislation almost annually since, enacted that "No grant or lease of lands under tidewaters wherein there are natural oyster beds shall hereafter be made by the riparian commissioners of this state except for the purpose of building wharves, bulkheads and piers." Pamph. L. 1888, p. 140. This act declared a legislative public policy relative to these lands, and was equivalent to a declaration, that a conveyance of the natural oyster beds of the state, excepting as indicated 49 Vroom. Attorney-General v. Sooy Oyster Co. in the excepting clause of the act, should be invalid, and ipso facto void. It is significant that in no instance where the legislature has undertaken to deal with legislation enlarging or supplementing the powers of the riparian commissioners, do we find any intent, express or implied, that their duties shall extend. to a determination tantamount to an adjudication, regarding the location of natural oyster beds; and it is a logical and legal inference that if the legislature intended to repose that power in these commissioners it would have so expressed itself. But per contra we find that in 1893, in an act entitled "An act to promote the propagation and growth of seed oysters, and to protect the natural oyster beds of this state" (Pamph. L. 1893, p. 503), oyster districts were created, beginning with District No. 1, and terminating with District No. 7, and that in one of the districts thus enumerated were included the lands in controversy. The first section of the act provides "that the natural oyster beds shall be and they are hereby divided into seven districts, as follows: District No. 3, from Gunning river south to Rose's Point; District No. 4, from Rose's Point south to the division line between Atlantic county and Ocean county." The second section of the act provides for the appointment of commissioners for the respective districts, who were required to take an oath for the faithful performance of their duties; which by the third section were prescribed inter alia, to be the supplying of shells upon these grounds, for the purchase of which the state appropriated annually $5,000. From this appropriation the act appropriated the sum of $500 "for the mouth of Mullica river and adjacent waters, known as graveling oyster beds." The same act provides that "In the event that it may become necessary that any one particular district shall require a greater expenditure than above provided, the said commissioners, in meeting assembled, may determine the proportion to be allotted to such district." In 1899, by an act under a similar title, the legislature divided these lands under water into six districts, denominating them all "The natural oyster seed grounds of this Attorney-General v. Sooy Oyster Co. 78 N. J. L. state." Section 1. The centre line of Mullica river was made the division line between Districts Nos. 3 and 4, and three commissioners were appointed for the former districts and two for the latter. The act confers upon the commissioners powers substantially similar to those conferred by the act of 1893, and in its sixth section provides that "it shall be the duty of the said oyster commissioners to strictly enforce all existing laws regulating the natural oyster seed grounds of this state." And concludes by appropriating the sum of $12,000 annually to meet the requirements of the act. This legislation, manifesting in every section the dominant purpose of the legislature to protect this great natural industry, contains within its provisions a specific designation of the locus in quo as natural oyster beds, and vests in the oyster commissioners the power and duty to protect the lands and regulate their use. If the power be not vested in these commissioners by this legislation to select and designate the natural oyster beds of the state, how can it be said, by mere constructive inference, that this power resides in a commission created and designated for a purpose entirely distinct from and foreign to such a duty? Supplementing, in effect, the act of 1888, prohibiting sales of these lands as a declared public policy of the state, we thus have the distinct enumeration by the legislature and a description by natural boundaries of the natural oyster beds of the state, and the power is thereby vested in a distinct commission to perpetuate and protect the use of such lands. These acts, of course, are public acts and must be judicially noticed in any determination of this question, and it must also be presumed that the oyster commissioners did their duty, and expended under the requirements of this legislation in seeding the lands the large appropriation annually made for that purpose by the state. These lands were thus segregated by legislative fiat from the great body of riparian lands, and the protecting arm of the legislature was thrown about them. The United States Supreme Court under similar conditions, in dealing with government grants by federal agencies of timber, mineral and swamp lands that had been "reserved |
