The grant to the Town of Huntington, made by the Governor
General under the Duke of York on the 30th of November, 1666, and
confirmed by Governor General Dongan in 1688, and again confirmed,
with a change in description, by Governor General Fletcher in 1694,
operated to convey to the grantee the lands under tidewater in
Huntington Bay, as defined by a line drawn from Lloyd's Neck to
Eaton's Neck, and any title to such lands under water which came to
the State of New York, was ceded to the trustees of the town by the
state, by the act of its legislature of May 10, 1888, c. 279.
In reaching this conclusion, this Court follows the settled
rules of decision in the courts of New York relating to the form of
the action, the title to the submerged lands, and the special
defenses set up in this case.
On September 1, 1888, the defendant in error commenced an action
in the Supreme Court of the State of New York for the County of
Suffolk. Its complaint alleged that "the trustees of the
freeholders and commonalty of the Town of Huntington and their
successors" were a body corporate, created and incorporated by and
under three charters granted -- the
Page 153 U. S. 2
first by Richard Nicolls, Governor General under James, Duke of
York, of all his territories in America, and dated November 30,
1666; the second by Thomas Dongan, Governor General of the Province
of New York under James the Second, King of England, and dated
August 2, 1688, and the third by Benjamin Fletcher, Governor
General under William and Mary, and dated October 5, 1694.
It also alleged that the plaintiff was the lawful successor of
the said trustees, etc., and as such, and by virtue of said patents
and charters, and the laws of the State of New York, was the lawful
owner and seised in fee, subject to the right of navigation, of a
certain described tract of land of about three hundred acres lying
underwater in Huntington Bay, in the Town of Huntington, and that
as such owner it was entitled to the exclusive possession and use
thereof for oyster cultivation.
The complaint further charged that the defendant had theretofore
exercised, and still exercised, acts of ownership upon said lands,
and claimed title thereto and a right to the exclusive possession
thereof; that he had planted, or caused to be planted, oysters
thereon, and unlawfully withheld the lands from the plaintiff.
There was also an allegation of notice to quit, and a prayer for
judgment against the defendant for the immediate and exclusive
control of the premises. The defendant, who was a citizen of the
State of Connecticut, having been brought in by publication,
removed the case to the Circuit Court of the United States for the
Eastern District of New York. In that court, he filed an answer
denying plaintiff's title, and pleading possession since 1866.
Thereafter, on the 14th of November, 1889, the case was tried
before a jury, and at the close thereof the court directed a
verdict for the plaintiff. On the verdict a judgment was duly
rendered, and to reverse such judgment this writ of error was sued
out.
In addition to the grants from the Governors General (the
language of the description in the first of which is set forth in
the opinion,
infra), the plaintiff claimed under a grant
from the State of New York, made by the Act of May 10, 1888,
Page 153 U. S. 3
c. 279, which is also more fully set forth in the opinion of the
court. The map below shows the locality of the disputed premises.
The defendant's oyster bed is marked A.
image:a
Page 153 U. S. 18
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The questions in this case are mainly of a local character, in
respect to which the settled rule of decision in the courts of the
state is controlling. They relate to the form of the action, the
title of the plaintiff to submerged lands in Huntington Bay, and
the special defenses of the defendant.
By Rev.Stat. § 914, the practice, forms, and mode of proceedings
in actions at law in the federal courts are required to conform as
nearly as may be to those in the state courts.
The present action is one in the nature of an action of
ejectment, and to secure to the plaintiff the undisturbed control
of the tract in controversy. In the State of New York, there is but
one form of action, the plaintiff being required by the statutes of
that state to set forth in his petition the facts upon which he
bases his cause of action, and the relief is given according to the
facts as stated and proved.
In a certain sense, these submerged lands are not in the actual
possession of anyone, but § 1502 of the Code of Civil Procedure of
New York provides for just such an exigency. It reads:
"Where the complaint demands judgment for the immediate
possession of the property, if the property is actually occupied,
the occupant thereof must be made defendant in the action. If it is
not so occupied, the action must be brought against some person
exercising acts of ownership thereupon, or claiming title thereto,
or an interest therein at the time of the commencement of the
action. "
Page 153 U. S. 19
The defendant, claiming the right to occupy this submerged land
for the cultivation of oysters, must be deemed to have been in the
actual possession thereof, or if not, as exercising acts of
ownership thereupon and claiming an interest therein. Under those
circumstances, he was properly made a defendant in an action to
secure to the plaintiff the immediate possession of the premises.
Such an action is recognized as appropriate in New York.
Southampton v. Mecox Bay Oyster Co., 116 N.Y. 1, and cases
cited in the opinion.
With respect to the matter of title, there are involved not
merely the construction of public grants and charters, but also the
extent and purposes to and for which the title and control of
submerged lands may be passed away from the state to towns and
individuals. The question is of the rights attaching to certain
lands within the territorial limits of the state, and whatever
becomes a settled rule of real property by the decisions of its
courts is conclusive on this Court.
Bondurant v. Watson,
103 U. S. 281,
103 U. S. 289;
Burgess v. Seligman, 107 U. S. 20,
107 U. S. 33;
Gage v. Pumpelly, 115 U. S. 454;
Hardin v. Jordan, 140 U. S. 371,
140 U. S. 382,
140 U. S. 402;
Shively v. Bowlby, 152 U. S. 1.
The title of the plaintiff rests primarily on the three charters
referred to in the complaint, and which were admitted in evidence.
Those charters are grants of both territory and corporate
franchises. The description in the first, that from Governor
Nicolls, is as follows:
"All ye Lands that already have been or hereafter shall bee
Purchased for and on the behalfe of the said Towne of Huntington
whether from the Natives Proprietors or others within the Limitts
and Bounds herein exprest (vizt) that is to say from a Certaine
River or Creeke on the west comonly called by the Indyans by the
Name of Nackaquatack and by the English the Coldspring to Stretch
Eastward to Nasaquack River on the North to bee Bounded by the
Sound runing betwixt Long Island and the Maine and on ye South by
the Sea Including there Nine Severall Necks of Meadow Ground all
weh Tract of Land together with the sd Necks thereunto Belonging
within the Bounds and Limitts aforesaid and all or any Plantacon
there upon are to belong to the said Towne of
Page 153 U. S. 20
Huntington as also all Havens Harbours Creekes Quarryes Woodland
Meadowes Pastures Marshes Waters Lakes ffishing Hawking Hunting and
ffowling And all other Proffitts, Commodityes, Emolumts, and
Hereditamts to the said Land and prmisses within the Limitts and
Bounds aforementioned described belonging or in any wise
appertaining To have & to hold the said Lands and Necks of
Lands Hereditamts and prmisses with their and every of their
Appurtenances and of every Part & Parcell thereof to the said
Patentees and their Associates to the proper use and behoofe of the
said Patentees and their Associates their Heires Successors and
Assignes forever; And I do likewise hereby Confirme and Graunt unto
the said Patentees and their Associates their Heires Successors and
Assignes all the Priviledges belonging to a Towne within this
Government and that the Place of their present Habitacon shall
continue and retaine the Name of Huntington by weh name it shall
bee distinguisht and knowne in all Bargaines and Sales Deedes
Records and Writings."
The second charter, that from Governor Dongan, is a confirmation
of the first, and the description is substantially the same. The
third, from Governor Fletcher, refers to the prior charter from
Governor Nicolls, and recites a petition of the freeholders,
inhabitants of the Town of Huntington, for a
"Grant and Confirmation of the Premisses so only as that the
Limits & Bounds of the sayd Towne of Huntingtone shall not be
as above mentioned but as hereafter Expressed,"
and then grants by a description as follows:
"Bounded on the West by a River Called & known by the Name
of Cold Spring a Lyne Runing South from the Head of the sayd Cold
Spring to the South Sea & on the North by the Sound that Runns
between our sayd Isld of Nassaw and the maine Continent & on
the East by a Lyne Runing from the West syde of a Pond called &
known be the Name of fresh Pond to West syde of Whitmans Dale or
Hollow and from thence to a River on the South syde of our sayd
Island of Nassaw on the East syde of a Neck called Sumpawwawins and
from the sayd River Runing South to the sayd South Sea Togither
with all and Singular the Houses
Page 153 U. S. 21
Messuages Tenements Buildings Mills Mill damms fencing
Inclosures Gardens Orchards fields Pastures Feedings Woods
Underwoods Trees Timber Comon of Pasture Meadows Marshes Swamps
Plaines Rivers Rivoletts Waters Lakes Ponds Brooks Streams Beaches
Quarries Creeks Harbors Highways & Easements fishing fowleing
hunting and hawking Mines Mineralls (Silver and Gold Mines
Excepted) & all other franchised Profits benefits Comoditys
& Hereditaments whatsoever to the sayd Tract of Land within the
Limits and Bounds next above mentioned belonging or in any ways
appertaining or there with all used Accepted Reputed or taken to
belong or in any ways Appertaine to all intents and Purposes and
Constructions w'tsoever and also all & Singular the Rents
Arrearages of Rents Issues and Profits of the sayd Tract of Land
& Premisses heretofore due and Payable."
It will be seen from these quotations that the boundary on the
north, as given in the Nicolls charter, is the "Sound running
betwixt Long Island and the Maine," and in the Fletcher, "the Sound
that Runns between our sayd Isld of Nassaw and the maine
Continent," and the question is whether the tract in controversy is
south of this north boundary line. The following map will help to a
clear understanding of the question (
ante, 153 U. S. 3).
The tract in controversy, marked "A" on this map, is within the
limits of what is named thereon "Huntington Bay." The contention of
the defendant is that that body of water is a part of the Sound,
and that therefore the north boundary granted to the Town of
Huntington runs to the south of the tract in controversy. Referring
to the words used to describe the appurtenances to this grant, it
is urged that although the general term "waters" is found therein,
its place alongside of the words "rivers, rivoletts, lakes, ponds,
brooks, streams," indicates that it refers exclusively to interior
waters, and not to anything in the nature of a harbor, bay, or
haven, and that when we turn to the terms which may properly be
construed as referring to exterior waters, only the two, "creeks"
and "harbors," are found; that this Huntington Bay is not, strictly
speaking, a harbor, in that it is not landlocked and a place of
absolute safety for shipping, being entirely open
Page 153 U. S. 22
and exposed on the northerly side; that this, being a public
grant, is to be construed strictly against the grantee; that,
inasmuch as bays are not mentioned, bays are not granted, and that
the description of the Sound as the north boundary excludes that
body of water, with all its inlets and bays, from the scope of the
grant.
We are unable to concur in these views. If the language in the
description of boundaries is clear, that should control, and should
not be narrowed and limited by any mere ambiguity in the subsequent
statement of the appurtenances to the grant. Or, to state the
proposition in another form, whenever we are considering the matter
of boundary we naturally turn to the words by which the boundary is
described, and accept those words as controlling, and do not look
to those by which the scrivener attempts to define that which is to
pass with the granted premises as appurtenant thereto, to see what
is omitted therefrom, or what is uncertain therein; for when, in
the preparation of any instrument, the attention is directed to a
particular subject, it is to be expected that language expressing
the exact thought of the writer in respect thereto will be
selected, and the ordinary force and scope of that language should
not be destroyed by words and phrases used in another portion of
the instrument in the description of some other matter. As said by
the Supreme Court of Kansas in
Long v. Culp, 14 Kan. 412,
414:
"It is also a rule of construction that when one section of a
statute treats specially and solely of a matter, that section
prevails, in reference to that matter, over other sections in which
only incidental reference is made thereto, not because one section
has more force as a legislative enactment than another, but because
the legislative mind, having been, in the one section, directed to
this matter, must be presumed to have there expressed its intention
thereon rather than in other sections where its attention was
turned to other things.
Griffith v. Carter, 8 Kan.
565."
The northern boundary in all these charters is given as "the
Sound." That was then, and is now, a well known body of water. It
opens into the Atlantic Ocean, but is separate and distinct
therefrom. Into it flow many rivers and open
Page 153 U. S. 23
many bays, harbors, and inlets, but the fact of a connection
between them and it does not make them a part of the Sound. If the
words describing the appurtenances were omitted from this grant,
should not its boundaries be understood to be the same as now? So
the question is not whether this body of water in which the tract
in controversy is situated is strictly a harbor or a bay, but
whether it is neither, and only a part of the Sound. If it was then
known as an independent body of water, by whatsoever name called,
that is enough to eliminate it in tracing the boundary of the
grant. That it was so known is not open to question. It was not,
therefore, a part of the Sound, and the boundary of the grant ran
on the north of it.
While not perhaps of much significance, it may be noticed that
in the first charter, that from Governor Nicolls, the description
of the appurtenances is "havens, harbours, creekes," etc. The word
"haven" has perhaps a broader signification than "harbor." At any
rate, the use of both words in the same grant suggests that all
bodies of water which might come within the reach of either term
were intended to be included in the grant. In Webster, the first
definition given to the word "haven" is "a bay, recess, or inlet of
the sea, or the mouth of a river, which affords good anchorage and
a safe station for ships." While this bay might not be a place of
safety against all storms coming from any direction, it was
protected on three sides, and to that extent was "a safe station
for ships."
In the case of
Rogers v. Jones, 1 Wend. 237, the
controversy was in respect to the property in the town immediately
west of the Town of Huntington, to-wit, Oyster Bay. An examination
of a map of Long Island and the Sound shows that the bay of Oyster
Bay is no more of a harbor than Huntington Bay. It is just as open
on the northerly side. The Town of Oyster Bay had a charter similar
to that of the Town of Huntington, the northern boundary being "the
Sound," and the grant being
"with all the woodland, plains, meadows, pastures, quarries,
marshes, waters, lakes, rivers, fishing, hawking, hunting, and
fowling, and all other profits and emoluments to the tract
belonging."
The action was
Page 153 U. S. 24
one to recover a penalty for taking oysters contrary to a bylaw
of the town. The facts, as stated in the record, were as
follows:
"On April 8, 1825, Rogers, the defendant below, being a citizen
of the State of New York, did fish and oyster in the waters of the
bay or harbor of Oyster Bay, and took and carried away 100 oysters.
The place where the oysters were taken was adjacent to and within
one mile of Long Island Sound, opposite the village or Town of
Oyster Bay, nearer Lloyd's Neck than any other land, within about
one hundred yards of the beach on the said neck, and where the
water in the bay is at least twenty feet deep at low water. On
April 11, 1825, the suit was commenced before the justice by Jones,
who was at the time the supervisor of the town."
Comparing the maps of the two bays, it is obvious that the
locus in quo in that case was as properly to be considered
within the limits of Long Island Sound as that in the present case.
It is true no discussion of the point here made is found in the
opinion there filed, and therefore it is not a direct adjudication.
It seems to have been assumed that the tract, being within the
limits of the bay, was south of the Sound, and therefore within the
boundaries of the grant, and the question considered and determined
was whether the grant carried the land underwater, together with
the exclusive right of fishing in such water, and it was held that
it did.
A case also in point is
Brookhaven v. Strong, 60 N.Y.
56. That action was, as stated, one
"brought to recover damages for taking oysters from the Great
South bay, which extends along the south side of Long Island,
separated from the ocean by the Great South beach, and to establish
the exclusive right of the Town of Brookhaven to the oyster
fisheries in that portion of said bay lying between Huntington,
East Gut, and Long Point."
"The bay is a sheet of water some fifty miles long, and in the
widest part five miles wide. The tide ebbs and flows throughout its
whole extent, and it is navigable for vessels drawing from seven to
eight feet of water. Plaintiffs claimed to be the owner of the bay
within the limits above mentioned,
Page 153 U. S. 25
and of an exclusive right of fishery therein. Defendant admitted
the taking of the oysters, but denied the exclusive right claimed
by plaintiffs, and alleged that the place where they were taken was
within the bounds of the Town of Islip, and was part of the
navigable waters of the state, and that he, being a resident of the
Town of Islip, had a right to take the oysters."
The south boundary of the grant made in 1666 to the Town of
Brookhaven was "the sea or main ocean," and it was held that the
grant included this bay, the court saying:
"Nor can the objection that the bay was not included in the
grant be sustained. The general boundary is the ocean, which
includes the beach, and of course the bay."
There is nothing in the case of
Robins v. Ackerly, 91
N.Y. 98, 104, which makes against the conclusion we have expressed.
In that case, the question was as to oyster beds in Northport
Harbor, a body of water adjacent to Huntington Bay. That harbor, as
appears from the map, is landlocked, and this fact was referred to
in the opinion as among the matters indicating that it was within
the grant to the Town of Huntington. While the court refers to that
as an additional reason for the conclusion reached, it does not
make that the turning point. We quote its language:
"The northern boundary of the town is the Sound. This includes,
we think, Northport Harbor, where the oyster beds in question are
located. The language of the grant includes 'all havens, harbors,
creeks,' as well as 'fishing, hawking, hunting, and fowling.' In
the
Brookhaven Case, the south boundary was the ocean, and
there was a sandy flat or beach between the ocean and the bay, and
the question was raised that the South Bay was not within the
grant. This Court held that this objection could not be sustained,
and that the southern boundary, which was the ocean, included the
beach, and of course the bay, etc. The patent under which the
plaintiff claims is bounded on the north by the Sound, adjacent to
the Sound is Eaton's Neck and Eaton's Neck beach, and south of this
is Northport harbor. By analogy, both Eaton's Neck and Eaton's Neck
beach are within the patents, and necessarily
Page 153 U. S. 26
the harbor also. The boundary by the Sound includes all the land
south of the Sound. That this was intended is indicated by the use
of the words in the grant 'harbor, havens,' etc. That Northport
harbor was included within the limits of the boundaries was proved
by the undisputed evidence of the surveyor and others. It was also
proved that Eaton's Neck beach was leased by the town. It should
also be noticed that Northport Harbor is landlocked, and has always
been used and distinguished as a harbor."
Each of these three cases from the highest court of the State of
New York treats that which is named as the boundary on the north or
south, the Sound or the ocean, as referring directly to the body of
water known by such name, and not as including waters opening into
or connected with it.
Further, there is independent testimony tending to show that
this Huntington Bay was called indiscriminately "bay" or "harbor"
at the time of the original grant. Thus, in the grant made by
Governor Nicolls, on June 22, 1667, of Eaton's Neck to George
Baldwin, the description is
"a Certain Parcell or Neck of Land Commonly called Eaton's Neck
lying and being in the East Riding of Yorkshire upon Long Island on
the North side of the said Island to the East of Huntington Bay
where striking out into the Sound it is thereby bounded to the
North East and South and on ye West with Huntington Harbour,"
and in a conveyance of the same land made by Baldwin, on July
11, 1668, the description is
"neck of Land commonly Called and known by the name of Easton
Neck lying on the East side of Huntington Harbour bounded as is
Specified in the patent granted for that Neck of Land."
There is also other testimony to the effect that this body of
water has been known as "Huntington Bay" as far back as any memory
extends, or any records are found, and whether bay or harbor, it
was a distinct body of water, always so known and called.
No question exists as to the validity of these ancient grants,
or that they were broad enough to include oyster rights in the
waters within them. The subsequent legislation of the colony and
the state affirms their validity. Thus, on May 6, 1691,
Page 153 U. S. 27
the colonial legislature passed an act entitled
"An act for settling, quieting and confirming unto the cities,
towns, manors, and freeholders within this province their several
grants, patents and rights respectively."
The first section enacted:
"That all the charters, patents and grants made, given, and
granted, and well and truly executed under the seal of this
province, constituted and authorized by their late and present
majesties, the Kings of England and registered in the secretary's
office unto the several and respective corporations or bodies
politick of the cities, towns, and manors, and also to the several
and respective freeholders within this province, are and shall
forever be deemed, esteemed, and reputed good and effectual
charters, patents, and grants authentick in the law, against their
majesties, their heirs, and successors, forever."
And in the second section it was provided:
"And be it further enacted by the authority aforesaid, that all
the charters, patents, and grants made, given, and granted, as
aforesaid unto all and every the several and respective
corporations or bodies politick of the cities, towns, and manors,
and their successors, and also unto all and every the respective
freeholders, their heirs and assigns, forever, within this
province, are, to all intents and purposes whatsoever, hereby
ratified and confirmed."
Section 36 of the first constitution of the State of New York
contained this provision:
"And be it further ordained that all grants of land within this
state made by the King of Great Britain or persons acting under his
authority after the fourteenth day of October, 1775, shall be null
and void, but that nothing in the constitution contained shall be
construed to affect any grants of land, within this state, made by
the authority of the said King, or his predecessors, or to annul
any charters to bodies politic by him, or them, or any of them,
made prior to that date."
A similar one is found in section 18 of article 1 of the
constitution of 1846. See upon this question of validity, in
addition to the authorities heretofore quoted,
People v. Van
Renesselaer, 9 N.Y. 291, 346.
Page 153 U. S. 28
Again it is worthy of note that that fact is apparent from the
testimony in this case, which was noticed by the Court of Appeals
as significant in the case of
Trustees of Brookhaven v.
Strong, 60 N.Y. 56, 71, to-wit, a long continued exercise and
control over these submerged lands on the part of the town. Several
entries taken from the records of the proceedings of the town were
offered in evidence. One, dated June 1, 1795, is as follows:
"Whereas sundry persons are making a practice of taking and
carrying away clams and oysters from the harbors on the north side
of the Town of Huntington, for the prevention of which be it
enacted and ordained by the trustees of the freeholders and
commonalty of the Town of Huntington, and it is hereby enacted and
ordained by the authority of the same, that if any person or
persons, after the 10th day of June, 1795, shall take and carry
away out of any of the harbors of the north side of the township of
Huntington any clams or oysters, he or they, or any of them so
offending, shall forfeit the sum of 40
s. for every offense
contrary to the true intent and meaning of this act, and shall be
prosecuted,"
etc.; one substantially similar, of date June 20, 1796.
Subsequently, in 1803, 1810, 1818, 1823, 1828, 1833, 1838, 1844,
and 1849, bylaws were passed, aimed with more or less directness of
expression at restraint upon the "fishing, claiming, oystering,"
catching oysters, clams, and fish in the waters of the Town of
Huntington. It is not meant by this to imply that any of these
bylaws specifically named Huntington Bay as a part of the waters
belonging to the Town of Huntington. All that is meant to suggest
is that there was during those years a continued assertion of the
right on the part of the town to control the catching of oysters in
the waters of the town. Obviously the planting of oysters was not
then a matter much thought of, but from 1855, the occupation of the
submerged lands for the purpose of the cultivation of the oyster
seems to have attracted the attention of the town authorities.
Thus, on April 3, 1855 at a town meeting, this resolution was
passed:
"
Resolved, that all persons be prohibited from putting
down stakes in any of the harbors of the Town of Huntington to mark
the lines of the oyster beds that will in any way obstruct fishing
with nets, under the penalty of $12.50."
On April 7, 1857, at a town meeting, the trustees were
authorized "to make rules and regulations for the planting of
oysters, receive applications, and grant permissions to the
inhabitants" of the town for planting oysters. On April 4, 1871,
the town record contains this recital:
Page 153 U. S. 29
"At a town meeting, resolved that the trustees of this town be
authorized, empowered, and directed to lease the lands immediately
suitable for oyster beds in the bays and harbors belonging under
the waters of the Town of Huntington. Before doing so, they shall
take proper counsel therein as to the best and safest manner of
leasing said grounds. None but residents have the privilege to said
lease, and those residents having oysters already planted be
entitled to the first privilege, and the trustees be required to
give public notice for two weeks before adopting the resolution for
the terms and manner of leasing."
And in the town records are found, subsequently to these
entries, bylaws and resolutions of a similar import.
Still further, on May 10, 1888, the Legislature of New York
passed an act which is as follows:
"Section 1. All the right, title, and interest which the people
of the State of New York have, if any, in and for the lands outside
of and beyond low water mark under the waters of Huntington Bay, in
the Town of Huntington, Suffolk County, southerly of a line drawn
from a granite monument now set near high water mark on the
northerly point of Eaton's Neck, and west of the United States
lifesaving station to a locust monument now set on Lloyd's Neck,
which line runs on a course south fifty-nine degrees, twenty
minutes and twenty-five seconds west, and which is the line claimed
by the trustees of the Town of Huntington as the northerly line of
their grants under colonial patents, is hereby ceded to the present
trustees of the Town of Huntington, Suffolk County, and their
successors in office, for the purpose of oyster cultivation.
Provided, nothing in this act shall be held to interfere
with the rights and powers of the commissioners of the land office
to grant all the right, title, and interest of the state to lands
underwater in said bay, to the owners of
Page 153 U. S. 30
adjacent uplands for purposes of commerce or beneficial
enjoyment, and nothing herein contained shall be construed as
interfering with the rights of riparian owners; subject, however,
and without prejudice to the legal rights, if any, of such persons
as now have oysters planted on the lands aforesaid."
(Laws of New York, 111th Sess. 1888, p. 494.)
In respect to this cession, the Court of Appeals, in
People
v. Lowndes 130 N.Y. 455, 461, said:
"If the
locus in quo was not within the colonial patent
or grant, it was the property of the state, and passed to the
trustees of the Town of Huntington by the legislative act of
cession of May preceding the time of the alleged offense."
That was a case in which the defendant was prosecuted for a
violation of section 441 of the Penal Code of the State of New
York, which is as follows:
"A person who, not being at the time an actual inhabitant and
resident of this state, plants oysters in the waters of this state
without the consent of the owner of the same or of the shore, or
gathers oysters or other shellfish from their beds of natural
growth in any such waters on his own account or for his own benefit
or the benefit of a nonresident employer is guilty of a
misdemeanor, punishable by imprisonment not exceeding six months or
by a fine not exceeding one hundred dollars, or both,"
and the place at which the offense was charged to have been
committed was in Huntington Bay. That case was, however, decided on
the question of the sufficiency of the indictment, and perhaps
therefore the quotation may be considered as simply
dictum, but, whether
dictum or not, we think it
is correct. Either the title to these submerged lands passed by
virtue of the colonial grants to the Town of Huntington or else it
was in the State of New York,
Martin v. Waddell's
Lessee, 16 Pet. 367;
Pollard's
Lessees v. Hagan, 3 How. 212;
Shively v.
Bowlby, 152 U. S. 1, and
this act, whose validity seems not to be questioned, cedes all the
right, title, and interest of the state in these lands to the town,
so far at least as is necessary for the purpose of oyster
cultivation.
It is clearly exclusive in its scope. Such is the plain import
of its terms. Even if the language were less clear, reliance
Page 153 U. S. 31
might be had on the rule of construction in respect to such
grants laid down by the Court of Appeals.
Langdon v. New York
City, 93 N.Y. 129, 144.
"But when the sovereign grants land underwater, which cannot, in
its natural state, be subjected to any of the uses to which dry
land may be devoted, then a different rule of construction must be
applied to the grant, so as to make it effectual for some purpose.
Such a grant may be made to give an exclusive right of fishery, or
of navigation, or to enable the grantee to fill up the land for
wharves and docks or other buildings. The purpose may be plainly
expressed in the grant. If it be not, then the intent of the
parties must be ascertained from the nature and situation of the
land granted, and all the circumstances surrounding the grant which
may properly be considered for the purpose of ascertaining such
intent."
Proper notice to quit was served upon the defendant, and hence
it follows that the judgment was rightfully entered against him,
unless he has shown some affirmative title or right in himself. He
pleads possession and use of the premises for the purposes of
oyster cultivation for more than twenty years. But in order to
create a title springing out of possession, such possession must be
adverse and exclusive, and of that the defendant makes no pretense.
There was in evidence an application made by him on October 10,
1887, to the Commissioner of Fisheries of the State of New York for
a perpetual franchise for planting and cultivating shellfish on the
premises, which application was denied, and in respect to it he
testified:
"The lands described in that exhibit are the lands embraced in
this suit. These are the lands I occupy now. I did not get any
grant on that application. The town put in a demurrer. When I
commenced to plant oysters on these grounds, I claimed that the
bottoms were owned by the state. I do yet. I don't claim to own the
ground at all. In the year 1867, I planted probably -- well, I
never measured. I staked off a square what I thought would be
competent to hold 3,000 bushels or 2,500, the amount I had money
enough to buy and plant it onto it, indiscriminate of the number of
acres. I did not plant
Page 153 U. S. 32
more than ten acres in 1867. I don't think I planted more than
ten acres in 1868."
In other words, all that he claims is that he had an implied
license from the state. But such license (if one existed) was
subject to revocation, and was revoked by the notice served upon
him by the plaintiff, to whom the state had ceded all its
rights.
These are the material questions in the case, and in the
decision of them there was no error. Therefore, the judgment is
Affirmed.
MR. JUSTICE WHITE was not a member of the Court when this case
was argued, and took no part in its decision.