Solliday v. Johnson

The opinion of the court was delivered, by Lowrie, C. J. — The plaintiff below sued for a lot of paving-stones, and the defendant, who carried them off, denies his title to them, and asserts that they are the property of the state, because they were gathered out of the river Delaware. Such a defence is unprecedented, and therefore cannot be answered by any precedents in our reports. But, by the common practice of the country, it is very easily answered. It has never been considered as a trespass against the state to gather stone, gravel, and sand out of the bed of our public rivers, or to take fish, or ice, or drift-wood there, or to bathe in the public waters, or hunt game, or pasture cattle, or gather fallen wood, or make maple sugar in our public woods. The state allows all this, and never claims as her property, such private products of her public lands; and of course no invader of the private rights acquired in this manner, can be allowed to shield himself behind her unasserted rights. Most of the streets of our towns are paved with sand, and gravel, and stones, first appropriated by labouring men, and sold by them for paving, without any license specially granted by the state. Even private property does not receive the same degree of public protection where it is allowed to lie waste, as where it is carefully enclosed. And where the state has always [382] left any portion of the public domain, or of the materials to be found on it, open to appropriation as private property, it is not the duty of courts to forbid or defeat such appropriations. The defendant makes a claim for the state, which it has never made for itself, and it cannot be allowed. Judgment affirmed. Same judgment to be entered in the cases of Solliday v. Hann, Pursell, Buck and Cooper.