[Charles River Bridge v. Warren Bridge et al.]

the language being clear of all ambiguity, it extended to corporations as well as individuals; 8 Wh. 480 to 490, passim.

But while the Court repudiates all constructive exceptions to the prohibition, it equally repudiates its application to constructive contracts; it will preserve the immunity from taxation, when it is granted in terms as in 7 Cr. 164; yet they will not raise an immunity by implication, "where there is no express contract;" 4 Pet.

563.

There can be no difficulty in understanding this clause of the constitution, its language is plain and the terms well defined by the rules of law, the difficulty arises by the attempts made to interpolate exceptions on one hand, so as to withdraw contracts from its operation; and on the other hand, to imply one contract from another, to make each implied contract the parent of another, and then endeavour to infuse them all into the constitution, as the contract contained in the grant or charter in question. If human ingenuity can be thus exerted for either purpose with success, no one can understand the constitution as it is; we must wait till it has been made by such construction, what such expounders may think it ought to have been, before we can assign to its provisions any determinate meaning. In the rejection of both constructions, and following the decisions of this Court, my judgment is conclusively formed; that the grants of property of franchise, privilege, or immunity, to a natural or artificial person, are alike confirmed by the constitution; and that the plantiffs are entitled to the relief prayed in their bill, if they have otherwise made out a proper case.

In tracing their right to its origin, they found it on a grant to Harvard college, by the general court, or colonial council, in 1640, of the ferry between Boston and Charlestown, which had belonged to the colony from its first settlement. In 1637, the governor and treasurer were authorized to lease this ferry for three years, at forty pounds a year, under which authority they made such a lease, and gave an exclusive right of ferry between the two towns, though they were not authorized to do more than lease the ferry. The lease expired in 1640, when the ferry reverted to the colony, and was granted to the college by no other description than "the ferry between Boston and Charlestown," which the plaintiffs contend was a grant in perpetuity of the exclusive right of ferriage between the two towns, and from any points on Charles river, at the one or other.

All the judges in the court below, as well as the counsel on both sides agree, that the common law as to ferries was adopted and prevails in Massachusetts; this part of the case then must depend on what were the rules and principles of that law, in their application to such a grant at the time it was made.

It is an admitted principle, that the king by his prerogative was vested with the right of soil and jurisdiction over the territory within which he constituted by his charter the colonial government; their

[Charles River Bridge v. Warren Bridge et al.]

grants had the same validity as his, and must be construed by the same rules which regulate prerogative grants. Vide 1 Pick. 182, &c. As the king, by his charter put the colonial government in his place, they held the right in and over the arms of the sea, the navigable rivers, and the land in the colony, for the benefit of the people of the colony, as a public trust, not as a private estate; the people of the colony had the right of fishing, navigating and passing freely in and over the public waters, subject to such grants of franchise or property as may have been made, or which should be made in future. But as any grant of a private right in or over public property, is necessarily an abridgment of the public right to the extent of such grants, the law looks on them with great watchfulness, and has prescribed rules for their construction, founded on a proper regard to the general interest.

The prerogative of the king is vested in him as necessary for the purposes of society; it extends to all things not injurious to his subjects, but "stretcheth not to the doing of any wrong;" 1 Bl. Com. 237, 9; the objects for which it is held and exercised, are for the good of the subject, and the benefit of the commonwealth, and not his private emolument. It is a part of the common law; 2 Co. Inst. 63, 496; confined to what the law allows, and is for the public good; Hob. 261; and the increase of the public treasure; Hard. 27; 2 Vent. 268. The king is the universal occupant of the public domain, which he may grant at pleasure; 11 Co. 86, b; 9 Pet. 748; Cowp. 210; but his grants are voidable, if they are against the good of the people, their usual and settled liberties, or tend to their grievance; 2 Bac. Ab. 149; Sho. P. C. 75; holding it for the common benefit as a trust, his prerogative is the guardianship of public property, for the general interest of his subjects.

This is the reason why the king has a prerogative in the construction of his grants, by which they are taken most strongly in his favour and against the grantee, because they take from the public whatever is given to an individual; whereas the grants of private persons are taken by a contrary rule, because the public right is not affected by them. From a very early period, it was the policy of the law of England to protect the public domain from the improvident, or illegal exercise of the royal prerogative in making grants, and to secure to pious and charitable institutions, the benefit of donations made directly to them or for their use, by rules of construction appropriate to each kind of grants, which were a part of the common law. These rules were affirmed by statutes in order to give them a more imposing obligation; these statutes were passed in 1323, 24. By the 17 Ed. II. st. 1, ch. 15, it is enacted that "When our lord the king giveth or granteth land or a manor, with the appurtenances, without he make express mention in his deed or writing, of knights' fees, advowsons of churches and dowers when they fall belonging to such manor or land, them at this day the king reserveth to himself such fees, advowsons and dowers; albeit that among other persons it

[Charles River Bridge v. Warren Bridge et al.]

hath been observed otherwise;" 1 Ruff. 182, 3. By the 17 Ed. II. called the statute of templars, it was declared, that grants and donations for charitable purposes, should be held; "So always that the godly and worthy will of the foresaid givers be observed, performed and always religiously executed as aforesaid;" Keble. St. 86, 7. Subsequent statutes have prescribed the same rule, whereby it has ever since been a fundamental principle of the law of charities, that the will of the donor should be the standard of construction in relation to all such gifts or grants; 8 Co. 131, b; 10 Co. 34, b; 3 Co. 3, b; 7 Co. 13, a; putting them on the footing of a will, in which the intention of the testator prevails over the legal interpretation of the words.

Both classes of cases are exceptions to the general rules of construing private grants. They rest, however, on the strongest grounds of reason, justice, and sound policy, applicable alike to England and this country. In cases of charities the rule has been most liberally applied by this Court, as it has in England in the construction of statutes and grants, in favour of donations to them; 4 Wh. 31, &c. 9 Cr. 43, 331; 3 Pet. 140, 480; 9 Wh. 455, 64; 2 Pet. 580, 85; so of dedications of property to public use, or the use of a town; 12 Wh. 582; 6 Pet. 436, 7; 10 Pet. 712, 13; the rules of which are essentially different from those which relate to grants from one person to another, or laws for private benefit. In cases of grants by the king in virtue of his prerogative, the rule prescribed by the statute of prerogative has ever been a fundamental one in England," that nothing of prerogative can pass without express and determinate words;" Hob. 243; Hard. 309, 10; Pl. 336, 7. In 1830, it was laid down in the house of lords as clear and settled law, that the king's grants shall be taken most strongly against the grantee, though the rule was otherwise as to private grants; 5 Bligh. P. C. 315, 16; this rule was never questioned in England, and has been adopted in all the states as a part of their common law.

This rule is a part of the prerogative of the crown, which devolved on the several states by the revolution; 4 Wh. 651; and which the states exercise to the same extent as the king did, as the guardians of the public for the benefit of the people at large. It is difficult to assign a good reason why public rights should not receive the same protection in a republic as in a monarchy, or why a grant by a colony or state, should be so construed as to impair the right of the people to their common property, to a greater extent in Massachusetts than a grant by the king would in England. But the grant of this ferry in 1640, was only a prerogative grant by colonial authority, which being derived solely from the charter of the king, and not by act of parliament, could rise no higher than its source in his prerogative, nor could it pass by delegated authority what would not pass in the same words by original grant from the king; consequently the grant must be construed as if he had made it. If, however, there could be a doubt on this subject, by the general principles

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of the common law as adopted in that colony, there were reasons peculiar to it, which would call for the most rigid rules of construing grants of any franchise, or right of any description, on the waters or shores of the rivers and arms of the sea within its boundaries.

In 1641, the general court adopted an ordinance which was a declaration of common liberties, providing that riparian owners of land on the sea or salt water, should hold the land to low water mark, if the tide did not ebb and flow more than one hundred rods; though this ordinance expired with the charter of the colony, there has been ever since, a corresponding usage, which is the common law of the state to this day; 4 Mass. 144, 5; 6 Mass. 438; 17 Mass. 148,9; 1 Pick. 182, &c. The riparian owner of land in Charlestown “ may, whenever he pleases, enclose, build, and obstruct to low water mark, and exclude all mankind;" 1 Mass. 232; it is therefore a necessary conclusion from the nature and extent of the riparian right, that grants of land on Charles river must be construed by the rules of prerogative grants. Any construction which would extend them beyond the limits described in the grant, must take from the adjoining riparian owner a right which is exclusively in him; it cannot then ever have been the law of Massachusetts, that the grant of the ferry in general terms, between two opposite points on the shore of Charles river, which is an arm of the sea and salt water, would give any right beyond the landings. Had the grant been definite of the landings, describing them by metes and bounds, with the right of ferriage over the river, its construction must be the same as a general grant, for it could in neither case be extended so as to give a right of landing on another man's soil.

Independent, however, of any considerations of this kind, the law of Massachusetts on the subject of the construction of grants, has been settled by the repeated decisions of its supreme court, and is thus laid down by Chief Justice Parsons in language which meets this case on all points. "Private statutes made for the accommodation of particular citizens or corporations, ought not to be construed to affect the rights or privileges of others, unless such construction results from express words, or necessary implication;" 4 Mass. 145. In case of a deed from A to B, the court gave it a strict and technical construction, excluding all the land not embraced by the words of the description; 6 Mass. 439, 40; S. P. 5 Mass. 356; "where a tract of land is bounded on a street or way, it does not extend across the street or way, to include other lands and flats below high water mark;" 17 Mass. 149. In grants by towns no land passes by implication "unless the intention of the parties to that effect, can be collected from the terms of the grant;" 2 Pick. 428; "nothing more would pass than would satisfy the terms;" 3 Pick. 359; "in the absence of all proof of ancient bounds, the grant must operate according to the general description of the estate granted;" 6 Pick. 176. "By the common law it is clear that all arms of the sea, coves,

[Charles River Bridge v. Warren Bridge et al.]

creeks, &c. where the tide ebbs and flows, are the property of the sovereign, unless appropriated by some subject, in virtue of a grant, or prescriptive right which is founded on the supposition of a grant;" 1 Pick. 182; "the principles of the common law were well understood by the colonial legislature." "Those who acquired the property on the shore were restricted from such a use of it, as would impair the public right of passing over the water." "None but the sovereign power can authorize the interruption of such passages, because this power alone has the right to judge whether the public convenience may be better served by suffering bridges to be thrown over the water, than by suffering the natural passages to remain free;" ib. 184. "By the common law and the immemorial usage of this government, all navigable waters are public property for the use of all the citizens, and there must be some act of the sovereign power direct or derivative, to authorize any interruption of them." "A navigable river is of common right a public highway, and a general authority to lay out a new highway, must not be so extended as to give a power to obstruct an open highway, already in the use of the public;" ib. 185, 87.

From these opinions it would seem, that the interest of the riparian owners and of the public, would require for their protection, the application of such a rule of construing legislative grants of any right in or over the waters of the colony, as would confine them to the description, so that nothing should pass that was not embraced in its terms, and no right be impaired, further than the words of the law had done it. The supreme court of Massachusetts have not shown any sensibility as to the rules of construing grants, because they may be called "prerogative" rules, or in permitting the state to avail itself of prerogative rights; 6 Pick. 415.

This prerogative rule has been adopted in New York, without any fear that it was incompatible with the policy of a republic. "It is an established rule, that when a grant is susceptible of two constructions, that should be adopted which is most favourable to government;" 3 Caines, 295. Per Thompson, Justice: "It is a general rule of law that in the exposition of governmental grants, that construction, when the terms are inexplicit, shall be adopted, which is least favourable to the grantee;" 303. Livingston, Justice: "The idea of rolling out the patent, to the extent of four miles from every part of the plains, is literally impracticable, and when so modified as to be practicable, it would give too difficult and inconvenient a shape for location, and in a case of a location vague and doubtful, it would be stretching the grant over all the surrounding patents to an unreasonable degree. A construction more convenient and practicable, better answering the words of the grant, more favourable to the rights of the crown, and to the security of adjoining patents ought to be preferred;" 306. Kent, Chief Justice: "No property can pass at a public sale, but what was ascertained and declared;" 1 J. Cas. 287; a road will not pass by general words thrown in at the end of the