USA > New Jersey > Hudson County > Paper read before the historical society of Hudson County. 1908 > Part 12
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Under orders from the Commander in Chief, Wayne, with a considerable force, undertook an expedition down over Bergen Neck, intending the capture of a number of cattle that had been collected there, and likewise the destruction of the block house at Bull's Ferry. The cattle were gathered in, and on the return an attempt was made to carry out his instructions and destroy the block house. The attack was made with great vigor, and several wood boats lying at the dock near by were burned. The strength and solidity of the works defeated the object of the Americans and, notwithstanding a furious can- nonading was kept up for some time, the small force by which it was defended successfully resisted all attempts for its cap- ture, and the besiegers were obliged to retire with the loss of several killed and wounded.
The importance of this engagement was greatly magnified, mostly through the wide circulation of Andre's effusion before alluded to, although the failure of the expedition was a matter of deep regret to the American forces. The block house re- mained in the possession of the Refugees until near the close of the year, when its garrison was transferred to the defences at Bergen Neck (Bayonne.)
On the 24th of August, 1780, General Lafayette encamped with his troops on Bergen Heights near Waldo and Newark Avenues : from this commanding position he looked down upon the British at Paulus Hook and kept watch of their movements. His foraging parties extended their operations down to Bergen Point, at which place they were fired upon by the batteries on Staten Island. They secured considerable plunder of cattle
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and forage, and when remonstrated with by the inhabitants, they replied "that as they had contributed very little to the American Cause, what was taken was only in the way of just taxes."
During the latter part of the war the American officers met frequently at Bergen for consultation, and Lafayette, Greene and Wayne here determined upon future movements. I recall that when a boy, the spot where Lafayette and Wash- ington conferred together in Van Wagenen's apple orchard, was pointed out to me, and in after years on the occasion of Lafayette's visit to this country, a cane made from the old tree that had shaded them was presented to the General. This tree was located back of the present Van Wagenen home- stead on Academy Street, west of Bergen Square.
At this time the scouts from both sides were extremely active, and raids were frequent, by not only the Patriots and Loyalists, but from the bands of unprincipled, irresponsible marauders, who took advantage of the troublous conditions to assume partizanship with either party as best suited them. The character of these raids may be best understood from a few newspaper extracts taken at random.
"August 28th, 1780. The rebels on Saturday burnt Colonel William Bayard's new house and barn at Castile, on the north end of Hoebuck (Hoboken), and destroyed all the forage and timber to be found there, to a very large amount."
Same date: "Generals Washington, Lafayette, Greene and Wayne, with many other officers and large bodies of rebels, have been in the vicinity of Bergen for some days past. They have taken all the forage from the inhabitants of that place."
"Captain William Harding, with a detachment from Fort Delancy on Bergen Neck, went out as far as Newark and cap- tured four prisioners and about thirty cattle, which they brought back with them."
"September 5th, 1781. Last Wednesday a party of Ward's plunderers from Bergen Neck came to the neighborhood of Hoebuck, where they collected a number of cattle, which the inhabitants retook and killed and wounded many of the mis- creants."
But the crowning outrage of all perhaps was perpetrated by a band of Tories under the command of one Hatfield. Un-
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der the assurance of General Clinton, then encamped on Staten Island, that the safety of all those who brought provisions to the island would be guaranteed, and they permitted to dispose of the same without molestation; one Stephen Ball carried over a cargo of beef. On landing he was seized by Hatfield, mal- treated, subjected to a mock trial and hung on a tree at Con- stable Hook.
These fragments tell the story of Hudson County dur- ing the remaining years of the war. While the strife was most bitter between the Patriots and Refugees, consequences fell with the greatest force upon the non-combatants and their families. Pillage and plunder continued without cessation, and the hardships to which they were subjected, were those peculiar only to the embittered warfare carried on about them. But the trend of events pointed to the ultimate success of the Patriots. The surrender of Cornwallis in October, 1781, fore- shadowed the final result, and those who had adhered to the Royalist cause from motives of self-interest, now endeavored to ward off their impending punishment, by professing their allegiance to the power now gaining the ascendancy: while the Tories and Refugees, whose activity had caused much of the prevailing privation and suffering, realizing the fate that awaited them in case of capture, were already turning their thoughts to some safer haven.
Major Ward, commanding the Refugees who had been stationed so long at Bergen Neck, and whose depredations had caused so much terror and anxiety to the settlers, realizing the hatred he had inspired because of his excesses, destroyed the works, and October, 1782, with his whole force of miscreants embarked for Nova Scotia.
The point of Paulus Hook was now the only place in New Jersey where the British still retained a foothold, but with the news of the treaty at Paris January 20th, 1783, they prepared for its evacuation, and November 22d, 1783, the last Royalist de- parted from the territory, never again to return. A few days afterward Washington bade farewell to his officers at Frannce's Tavern in New York City and crossed the river to Paulus Hook on his way, as he supposed, to a quiet retirement.
The crucial test was now over, and right nobly had it been withstood. Privation, suffering, even death itself were esteemed
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as nothing, compared with the priceless boon that had been secured. The dawn of a new era was beginning to dispel the clouds of darkness and despondency that had for so many years overshadowed the land, and the hills, and the valleys, and the mountains were already tinged with the glorious beams of the Sun of Liberty that betokened the near approach of the perfect day.
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The Historical Society of Hudson County.
No. 5.
Organized January 17, 1908.
OFFICERS
President : DANIEL VAN WINKLE.
Vice Presidents :
1st-REV. C. BRETT.
2d-JOHN W. HECK.
Treasurer :
Librarian :
W. H. RICHARDSON.
NELSON J. H. EDGE.
Corresponding Secretary :
Recording Secretary :
LOUIS SHERWOOD.
DR. J. C. PARSONS.
Assistant Librarian : EDMUND T. MILLER.
Board of Governors:
ALEXANDER MCLEAN
M. J. CURRIE
1910
W. J. DAVIS
JOHN J. VOORHEES
DEWITT VAN BUSKIRK - 1911
DAVID R. DALY
W. R. BARRICKLO
DAVID RAMSEY
1912
DR. G. K. DICKINSON
BENJ. L. STOWE
VREELAND TOMPKINS
F14-2 H8HG
D. OF D. FEB 28 1910
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HUDSON COUNTY- ITS WATER FRONT DEVELOPMENT.
Paper read before "The Historical Society of Hudson County," by John C. Payne, C. E., Secretary and Engineer of the Riparian Commission of the State of New Jersey, Thurs- day evening, March 25th, 1909.
Although our paper to-night has primarily to do with the development of the water front of Hudson County, I shall not attempt to go into the details of land transfers, or the names of enterprises, with useful but tiresome statistics, which are the units that go to make up the grand sum of our worth; and I shall ask you to go with me to other parts of our state for some of the illustrations of the principles on which riparian interests are administered.
Nor, indeed, shall I attempt to fully cover the ground of legal inquiry and decision of all the cases that have claimed the attention of our courts, for that would make my paper far too long, and my purpose is rather to attempt to give a general view of the principles upon which the water front of our County has been developed.
ORIGIN OF THE STATE'S TITLE.
The title of the State to the lands flowed by tide water at mean high tide is as ancient as the discovery and conquest of the country, because it is founded on the ancient law.
Briefly, the history of the discovery and occupation of this part of the country is:
That in 1497, Jean and Sebastian Cabot, under commission of Henry VII of England, sailed along the coast of North America and claimed for their sovereign the entire country, the shore of which they occasionally saw at a distance.
In 1524, J. De Verrazzano, a Florentine, in the service of Francis I, King of France, is supposed to have visited the Bay of New York.
In 1525, Estavan Gomez, a Portugese, in the service of Emperor Charles V, visited the Bay of New York.
In 1598, some Dutch, in the employ of the Greenland Company, came into the Bay of New York and erected a winter shelter and a fort for protection against the incursions of the Indians.
mal- "1
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In 1603, Henry IV of France, by virtue of the discoveries of De Verrazzano in 1524, above referred to, gave to Des Monts that portion of the country lying between the 40th and 46th degrees of north latitude. This included the greater part of New Jersey ; but the grant of the French King was ignored by James I of England, who, in 1606, granted to the South Vir- ginia or London Company, and the North Virginia Company, practically the same land.
From the time of the earliest discoveries, up to the Revo- lution, the occupation and control of this part of the country was passed back and forth among the Dutch, the French, the English and the Indians, and an account of this period, as af- fecting the locality, will be found in the interesting papers al- ready read to you by Dr. Brett and Mr. Daniel Van Winkle, of this Society.
The title of the State to the lands under water is founded on the ancient doctrine of the sovereignty of the King. The first diversion of the title of the King is that of the grant from Charles II to James, the Duke of York, March 12th, 1664. This grant covered much of the land along the coast, from Maryland to Maine, and on June 24th, 1664, James, the Duke of York, sold to Berkeley and Carteret that part of the grant from King Charles, of March 12th, 1664, now known as New Jersey, and in 1676, New Jersey was divided into East and West Jersey and held by what were known as the Lords Pro- prietors.
In the year 1702 these Proprietors surrendered to Queen Anne all the rights of government held by them, reserving, however, the rights of property. The title to the soil of the tidal waters was not within the reservation, but again passed by the surrender of the government of the Proprietors to the Crown of England.
Thus the title to the lands under water, being vested in the King of Great Britain, at and before the Revolution of 1776, became vested, by the law of nations and the right of conquest, in the people of the then Colony, and now, State, of New Jersey, by the successful War of Independence.
Previous to this time, however, what is known as the Board of Proprietors of East Jersey set up the claim of title to lands and lands under water under grants made March 12th, 1664, and June 29, 1674, by Charles II of England, to James,
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Duke of York, and by the latter to Sir George Carteret and John, Lord Berkeley, June 24, 1664, and July 29, 1674; and by the legal representatives of Sir George Carteret to the said Board of Proprietors, February Ist and 2nd, 1683; and by a confirmation of said Board of Proprietors, made by James, Duke of York, March 14, 1683; and by divers other instru- ments, Indian titles and otherwise. They claimed to have been recognized as owners of the lands under water, by express acts of the Colonial Government, and to have made large numbers of grants of said lands.
The Proprietors' right of property in the lands above water was and is unquestioned, but that of their rights in lands under water has been the subject of much discussion and liti- gation. The decision, adverse to their rights, is the case of Martin V. Waddell (16 Peters, page 367), by the majority of the judges of the United States Supreme Court, and has been generally accepted as a final settlement of the question; but the opinion of the minority of that court was so strongly in favor of the rights of the Proprietors, that it has left a linger- ing question in their minds, which occasionally finds expres- sion in grants of lands flowed by tide water, which grants, how- ever, are not recognized by the authorities of the State of New Jersey.
The original grant to the Proprietors was in consideration of what they expressed as a "competent sum of money," and in addition to all the lands in the described boundaries, gave
"All rivers, mines, minerals, woods, fishings, hawkings, huntings, and fowlings, and all other royalties, profits, com- modities and hereditaments whatsoever;" and I presume on the strength of this wording, they based their claim of title to lands under water, which claim, however, has never been admitted by the State, but has been successfully contested.
This title gave the Proprietors rights in all the lands and general property in the province, and also in the government. The right of government was exercised until 1702, when it was surrendered to the Queen. The whole property was sub- ject to the rights of its Indian owners, and the grant from the King gave the Proprietors the exclusive privilege of purchas- ing from the Indians. (See William Penn and others on this subject, Gordon's New Jersey, pages 40, 41.) This privilege, though contested in the earliest provincial courts, was always
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sustained, and at the session of the first Legislature after the Proprietors' surrender of the government, the law first enacted was that "For regulating the purchasing of lands from the Indians," (Neville, page 1). This law forbid, with heavy penalty, any person purchasing lands from the Indians except by authority of the Proprietors; declared all such purchases previously made illegal, and required the possessors to take title from the Proprietors within six months thereafter.
The Indians highly valued their rights of fishing, as the reference to them in their deeds of sale show; and the immense quantities of shells, piled in heaps at all convenient places along the shores, bear witness that they improved these rights to great profit. There are a hundred acres or more of land at South Amboy which are covered from six to eighteen inches deep by these Indian shell deposits. The soil about Commun- ipaw is full of them, and they can be seen all along the creeks and bays from South Amboy to Cape May.
The Proprietors purchased all these rights of the Indians, and paid satisfactory prices for them. The purchases were generally made in tracts of a few square miles each, until nearly the whole State was covered by their deeds. Many of these deeds are recorded in the Proprietors' books and in the Secretary of State's office; and at an assembly of all the Indian tribes of New York, New Jersey and Pennsylvania, held at Easton, Pennsylvania, from October 8th to the 26th, 1758, two deeds were executed by the Indians and their attorneys, one of which, by the Delawares, was for all the land south of a line drawn from Sandy Hook up the Raritan River and its north branch to the Alamatong (Lamington) Falls, and from thence crossing to the Delaware River at the Paoqualin Mountain (Water Gap). In this the boundary along tide water is low water mark. The other deed, executed by the Minisink and Pompton Indians, was for all that part of the State lying north of the above mentioned division line and terminated at the north by a straight line drawn across the country from the mouth of Tapaan in latitude 41º north, on the Hudson, to Cochecton, in latitude 41° 40' north, on the Delaware.
GRANTS BY THE PROPRIETORS.
Among the "surveys" or grants to individuals, covered or partially covered by the tide waters, (the word "survey" mean-
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ing a grant), made by the Proprietors within Hudson County, was one in 1746 to "Arch. Kennedy of Bedloe's Island," and on Holland's Map of 1775, Bedloe's Island is called "Kennedy's Corporation."
Another "survey" or grant by the Proprietors, in Hudson County, in 1803, was to "Elisha Boudinot, Budd Tract, in Harsimus Cove."
In 1835, a "survey" or grant in Communipaw Cove was made by the Proprietors, of "Black Tom," which is now a part of the National Docks Warehouse enterprise.
And as recently as March 4th, 1880, the Proprietors of East Jersey granted to George H. Cook the reef or island on which Robbins Reef Light stands, also the reef or shoal known as "Oyster Island," both in New York Bay.
With these "surveys" or grants of "Robbins Reef" and "Oyster Island" from the Proprietors as a basis, application was made by George H. Cook to the State of New Jersey for a confirmatory title or the rights to the lands under water sur- rounding these "surveys," as lands pertaining to riparian ownership, but the application was refused by the State and no further claim has been made under these Proprietors' "sur- veys" or grants.
It will be of interest to call attention here to the attitude of the United States Government towards the title of the State of New Jersey to its lands under water, and to the machinery ot the State in conserving this relation:
On March 16th, 1875, the Legislature of New Jersey passed an act entitled "An Act authorizing the cession of jurisdiction and conveyance of lands of this State, under tidal waters, to the United States, to be used as sites for light houses, beacons, and other aids to navigation," (P. L. 1875, Chap. 138, p. 28). This act provided that whenever the United States desired to acquire title to lands belonging to the State of New Jersey, covered by the tidal waters, for the site of a light house, beacon, or other aid to navigation, application might be made to the Governor by a duly authorized agent of the United States, describing the site required; and that thereupon the Governor was authorized and empowered to direct the Riparian Commission to make a survey and map and report the same to him; whereupon, the Governor was to convey the title of said lands to the United States Government, upon such terms and
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conditions as might be agreed upon. The act provided further that no single tract thus conveyed should contain more than ten acres, and that the State of New Jersey should retain con- current jurisdiction over the same, so that all process, civil or criminal, issuing under the authority of this State, might be executed by the proper officers, upon any person or persons amenable to the same, within the limits of the lands granted; and provided further that no part of such lands so granted should be used for quarantine purposess ; and providing, finally, for the reversion of the lands to the State upon the discontinu- ance of their use by the government for the purposes for which they were ceded.
It was under this act and without regard to the grant by the Proprietors to George H. Cook of the site of Robbins Reef Light House, that is so attractive and prominent a feature of the shores of our county to its citizens returning from Europe, that the State of New Jersey, upon an application made by the United States Government in 1880, through its Governor, then General George B. McClellan, granted the rights to the United States Government, which accepted the same, thus putting the stamp of approval or confirmation upon the title of New Jersey to these lands under water as paramount to that of the Pro- prietors.
It will be noticed that the procedure for the United States to follow in acquiring lands of the State for light house pur- poses is different to that of the government or an individual in acquiring lands of the State for commercial uses. In the latter case application is made directly to the Riparian Commission, who pass upon the same, subject to the approval of the Gover- nor. It would be interesting to know what was in the minds of the Legislature of 1875, when this act was passed.
And further, in confirmation of this attitude or acceptance by the United States Government of the paramount title of the State of New Jersey to lands flowed by tide water at mean high tide, it is interesting to note that in 1901 an application was made by parties interested in the exploitation of a scheme of development of certain lands under water lying about mid- way between Ellis and Bedloe's Islands in New York Bay, asking the State of New Jersey for a grant of the State's title to these lands. The State of New Jersey applied to the War Department for approval of the lines defining this development.
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The War Department declined to approve such lines on the ground that the rights and necessities of commerce would not permit of the construction in question, and adding that the United States Government, owning Bedloe's and Ellis Islands, and using them for national purposes, were entitled to what- ever rights and privileges belonged to riparian owners in the lands under water around and between these islands, and stat- ing that it was not only possible, but probable that, in the near future, the United States might wish to use these lands for public purposes. This seemed like an intimation on the part of the Government of ownership or control; whereupon, the Riparian Commission inquired of the Secretary of War "Whether the Federal authorities claimed ownership in the lands under water in New York Bay, surrounding Ellis and Bedloe's Islands, so that they may appropriate the same to the uses of the United States Government without making application therefore to the State of New Jersey."
The answer of the Government, through the Secretary of War, is as follows:
"In reply I beg to state that the action of the Secretary of War, which was communicated to the Riparian Com- mission of New Jersey, was simply the modification of the harbor lines around Ellis Island, by extending the pier and bulkhead lines in accordance with the request of the Secretary of the Treasury. This action was no assertion of title or ownership in the lands under water, but simply a regulation of its use with regard to the navigable water- way and the interests of commerce."
An interesting instance of the exercise of the claim of the Proprietors to lands flowed by tide water, came under the notice of the state authorities some few years ago, when two gentle and amiable ministers of the Gospel, hailing from that city noted for gentle and amiable citizens, appeared with a petition for the right to occupy part of an island in the lower tidal waters of the State; and the language of the petition is so unworldly, it may be of interest to quote it:
PETITION TO PURCHASE A CERTAIN MARSH ISLAND, WEST OF HOLLY BEACH INLET, CAPE MAY COUNTY,
STATE OF NEW JERSEY.
TO THE HONARABLE
THE RIPARIAN COMMISSION OF THE STATE OF NEW JERSEY.
"The petition respectfully represents
I. That your said petitioners are citizens of the United States
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and of the State of Pennsylvania, residing in the City and County of Philadelphia;
2. That in March of the year 1902 while spending some time at Holly Beach, in the County of Cape May, State of New Jersey, noticing with favor a portion of unoccupied marsh island bordering the west edge of the first main channel west of Holly Beach, across which said island the County bridge from Holly Beach to Rio Grande (now completed), was then building, they, the said petitioners, did stake off and apportion to themselves on the aforesaid marsh island, portions of the same for the purpose of erecting thereon summer cottages for the use of themselves and families;
3. That your said petitioners pursuant to their first inten- tion have erected on the said portions of the said marsh island cottages as aforesaid, and also have interested other persons to do the same;
4. That the said petitioners have rendered the said portion of marsh island accessible, and desirable for occupation by certain improvements, the cost of which they have borne, among which is a substantial foot walk bridge, two hundred and fifty feet or more in length ;
5. That the said petitioners having been the pioneers and originators of this colony, desire to secure the said marsh island for settlement by respectable settlers, and for the protection of those persons already settled thereon, and to that end, have had the said marsh island surveyed, a plan of which survey, together with a description of the same, is hereunto affixed and marked with the letter "A," and made part of this petition ;
6. That the said marsh island is not improved land of the State, nor is it included within any lands designated for improvement, but it is wholly covered by from two to three feet of salt water every ordinary tide, and is a mud flat covered with sedge grass at low tide ;
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