Which State?

Two areas in Salem County are the property of the State of Delaware.

by Vince Farinaccio

It’s not visible to the naked eye. In fact, there isn’t even any hint anywhere on the westernmost edge of Salem County that two areas in this region have belonged to and are still the property of the State of Delaware, which happens to sit across a body of water that separates it from its two parcels of land in New Jersey.

There’s even a term for this—a pene-exclave, which online sources describe as land that does not belong to the state in which it sits yet is a territorial continuation of another state across water but not across land. In the event that’s not confusing enough, how these two portions of Delaware came to reside in New Jersey manages to set the bar of complication a bit higher.

The situation begins with the Twelve-Mile Circle. Online sources report that, in 1681, Charles II of England granted William Penn lands north of Maryland to settle a debt owed to the latter’s father. The deal excluded one territory decided by a 12-mile radius drawn from the church in the town of New Castle. This area, which would become a large portion of Delaware, was earmarked for the king’s brother James, who had been instrumental in claiming the territory from the Dutch two decades earlier.

According to online sources, on March 22, 1682, James received the land promised him only to deed it to Penn in August of that year so that the founder of Pennsylvania could gain access to the seacoast.

The Twelve-Mile Circle, which would be redrawn from the New Castle courthouse cupola not far from the church in 1750, was never actually a true circle or close to a reproduction of the geometric shape. Creating an accurate survey of the territory, it seems, was never a priority. What was created was a set of boundaries that, over the next several centuries, launched a series of disputes and legal battles involving Delaware’s jurisdiction up to the Jersey shoreline of Salem County and the pene-exclaves in South Jersey.

According to a 2018 News Journal article posted on the Delaware Online website, there “was a 1905 Delaware-New Jersey compact that covered fishing, crime and civil processes—but not who owned the land under the water. New Jersey said the boundary was the middle or the deepest part of the main shipping channel…Delaware felt it owned the riverbed all the way to the edge of New Jersey within the 12-Mile Circle.” According to the deed, however, Delaware’s ownership extends to the low-tide mark just before the Jersey shoreline.

New Jersey’s arguments with Delaware’s jurisdiction over the Delaware River and Bay can be traced back to around 1820 when it disputed the ownership of Pea Patch Island. The legal battle carried on in lower courts for several decades before President James Polk recommended arbitration, which resulted in a loss for the Garden State.

But, since 1877, the disputes have also involved the United States Supreme Court on more than one occasion, with New Jersey usually on the losing end of the decision. In a 1934 case, according to the News Journal article, “the U.S. Supreme Court sided with Delaware for the Mean Low Water Line within the circle, following the shipping channel’s Delaware Bay Line to the south.” And in 1935, the Supreme Court ruled that further disputes over jurisdiction between the two states were disallowed.

That, of course, merely delayed complaints for a few decades. The News Journal article reports that “the latest [argument] was a proposal for a liquefied natural gas plant mostly in New Jersey, with the U.S. Supreme Court ruling on March 31, 2008 that Delaware could block the plant, because parts would extend into Delaware water.”

As for the pene-exclaves, we’ll examine their history when this series continues.

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