Lewis Blue Point Oyster Cultivation Co. v. Briggs

• Decision Date: 26 April 1910
• Citation: 198 N.Y. 287,91 N.E. 846
• Parties: LEWIS BLUE POINT OYSTER CULTIVATION CO. v. BRIGGS.
• Court: New York Court of Appeals Court of Appeals

198 N.Y. 287

91 N.E. 846

LEWIS BLUE POINT OYSTER CULTIVATION CO.

v.BRIGGS.

Court of Appeals of New York.

April 26, 1910.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by the Lewis Blue Point Oyster Cultivation Company against J. Marvin Briggs. From a judgment of the Appellate Division (129 App. Div. 574,114 N. Y. Supp. 313) affirming a judgment of dismissal, plaintiff appeals. Affirmed.

This action was brought to restrain the defendant from digging or dredging upon certain land under the waters of Great South Bay, in the county of Suffolk, in such a way as to disturb the oysters planted by the plaintiff.

The defendant by his answer denied the jurisdiction of the court over the subject-matter of the action, upon the ground that the plaintiff seeks to restrain the improvement of navigation incident to the regulation of commerce over the navigable waters of Great South Bay, although such improvement has been duly authorized by Congress and the defendant has entered into contract with the United States government to make the same. The defendant also pleaded such contract in justification of his proposed action, and alleged that all the rights of the plaintiff are subject and subservient to the right of Congress to regulate commerce and navigation.

The court found, in substance, that certain persons who under three colonial patents made in 1666, 1686, and 1693 own the land in question, including the exclusive right of fishery thereon, leased the same to the plaintiff for the period of 10 years from April 1, 1901, for the purpose of plainting, cultivating, and growing oysters; that the plaintiff at great expense staked and buoyed the land and planted thereon a large quantity of oysters, which are his private property and worth more than $5,000; that said lands are under the navigable waters of Great South Bay, an arm of the sea, over which registered and enrolled vessels pass for the purpose of commerce between the states; that the defendant is under contract with the federal government, duly made pursuant to an act of Congress on the 21st of May, 1906, to dredge a channel 2,000 feet long and 200 feet wide, which will pass diagonally over the land in question, for the purpose of increasing the depth of the water in aid of commerce and navigation; that the digging of such channel across said land would destroy the oysters of the plaintiff, not only along the line of excavation but for some distance upon either side thereof, and would materially reduce the value of the land for oyster cultivation; that the right to dig said channel has not been acquired by consent or condemnation, nor otherwise than through said contract made pursuant to the act of Congress aforesaid; that, when the defendant began to dig said channel, he was notified by the plaintiff to desist, but he refused unless enjoined by the court.

Among other conclusions of law the court found that the right of the United States and of the defendant as their agent to enter upon said lands and fishing rights without making compensation for the purpose of commerce and the improvement of navigation is paramount to the rights of the plaintiff or his lessors. The complaint was dismissed on the merits and the injunction theretofore granted pendente lite was vacated. From the judgment of the Appellate Division unanimously affirming the judgment of the Special Term this appeal was brought.A. A. Spear, for appellant.

Selah B. Strong, 3d, for respondent.

VANN, J. (after stating the facts as above).

The learned counsel for the appellant, with the discrimination of a lawyer who understands his case, has made certain concessions which limit discussion to a single question. He admits that neither the plaintiff nor its lessors have any control of the right of navigation over the land in question because the patents from the crown, which are silent upon the subject, must be taken most strongly against the grantees. He further admits that their rights are subject to the public right of navigation, but he insists that such right is confined to navigation of the bay in its natural state without disturbing the surface of the land under water by artificialmeans. The only question he presents for decision, as stated in his own words, is as follows: ‘Is the authority of the United States for the regulation of commerce between the states and to improve navigation in navigable waters paramount to the private property rights and exclusive private fishery rights of the plaintiff and its lessors?’ The king of England had title to the land under the navigable waters throughout his kingdom as his private property, which he could dispose of as he saw fit without restraint or hindrance from the law. This was known as the jus privatum held by him in his individual capacity. Commonwealth v. Alger, 7 Cush. 53, 82, 90; Hale, De Jure Maris, 11; Hargrave's Law Tracts, 84, 89. The king also had title, as sovereign and in no sense as proprietor, to the navigable waters themselves within rivers and arms of the sea where the tide ebbed and flowed, but he held them in trust for his people and he could not dispose of them by grant or otherwise. They were incapable of private ownership, for they were the jus publicum held by the king in a representative capacity. Id.; Brackton b, 2, ch. 5, § 7; Moore's History of the Foreshore, 446, 533, 782; Hale, De Partibus Maris, 85. ‘The jus privatum of the owner or proprietor,’ said Lord Hale, ‘is charged with, and subject to that, jus publicum which belongs to the King's subjects; as the soil of an highway is, which though in point of property it may be a private man's freehold, yet it is charged with the public interest of the people, which may not be prejudiced or damnified.’ Hale's De Jure Maris, ch. 6. To the ancestors and grantors of the plaintiff's lessors the king granted the jus privatum to the locus in quo, but the jus publicum under the right of conquest and the treaty of peace made after the Revolutionary War went to the original states, and, when the Constitution was adopted, became subject to the rights surrendered thereby to the United States. Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331;Town of Brookhaven v. Smith, 188 N. Y. 74, 80 N. E. 665;Barnes v. Midland R. R. Terminal Co., 193 N. Y. 378, 85 N. E. 1093,7 Am. St. Rep. 962.

The plaintiff and its lessors have no more than the king had as proprietor; and the question is, What did he hold in his individual capacity? Assuming that he conveyed all that he could convey, what is the measure of the title conferred? Was his title to land under navigable waters, and is the title of his grantees so absolute as to prevent improvement by the general government for the benefit of navigation, as a matter of right and without making compensation, or was the jus privatum, which is conceded to be subject to the easement of navigation, also subject by necessary implication from the nature of that easement, to the right to promote navigation by increasing the depth of the water so that vessels of larger draft and greater tonnage can pass in safety? Is the grant of submerged soil, which is so directly connected with the public right of navigation as to be incapable of complete separation therefrom, subordinate thereto to the extent necessary to promote and develop commerce?

In patents from sovereign to subject the rule of construction which controls deeds between individuals is reversed and the terms are taken most strongly against the grantee, because the public interest is involved. For the same reason it is held that from grants of water land there is impliedly reserved the right of navigation, and, as a necessary part of so important a subject, the right to improve navigation for the benefit of commerce.

Upon the doctrine of implied reservation in grants of the crown, which rests on broad principles of public policy, we think the public right should be held to embrace whatever is essential to the interests of commerce, and that the private right is subject thereto. As the king could not grant to a subject the public right of...