State v. Trustees of Freeholders and Commonalty of Town of Southampton

• Decision Date: 21 February 1984
• Citation: 99 A.D.2d 804,472 N.Y.S.2d 394
• Parties: STATE of New York, et al., Respondents, v. The TRUSTEES OF the FREEHOLDERS AND COMMONALTY OF the TOWN OF SOUTHAMPTON, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 394

472 N.Y.S.2d 394

99 A.D.2d 804

STATE of New York, et al., Respondents, v. The TRUSTEES OF the FREEHOLDERS AND COMMONALTY OF the TOWN OF SOUTHAMPTON, Appellants.

Supreme Court, Appellate Division Second Department.

Feb. 21, 1984.

David H. Gilmartin, Southampton, for appellants.

Robert Abrams, Atty. Gen., New York City (John G. Proudfit and William E. Buss, Asst. Attys. Gen., New York City, of counsel), for respondents.

Before GIBBONS, J.P., and O'CONNOR, BROWN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to declare certain "Rules and Regulations for the Management and Products of the Waters of Southampton" null and void, defendants appeal from a judgment of the Supreme Court, Suffolk County, 114 Misc.2d 317, 451 N.Y.S.2d 612, entered July 12, 1982, which granted plaintiffs' motion for summary judgment and declared the subject rules and regulations to be null and void.

Judgment reversed, on the law, without costs or disbursements, motion denied, and matter remitted to the Supreme Court, Suffolk County, for trial in accordance herewith.

The State of New York issues fishing licenses which permit the taking of fish at various times of the year in certain ways from State waters specified in the license (see, generally, ECL art. 11). On May 2, 1977, the defendants enacted a new set of rules and regulations for the management and products of the waters of the Town of Southampton which, inter alia, limit freshwater fishing therein to residents and student residents of the town, and impose regulations which conflict with the ECL regarding the method or manner of taking fish. (Compare 6 N.Y.C.R.R. Part 10 and Rules with Regulations for the Management and Products of the Waters of the Town of Southampton, art. III.) As a result, the State of New York and the Commissioner of Environmental Conservation commenced the instant proceeding for a judgment declaring the relevant and inconsistent rules and regulations of the town to be null and void pursuant to ECL articles 11 and 13. Plaintiffs then moved for summary judgment "upon the grounds regarding pre-emption by the plaintiffs of fishing in the town". Special Term granted summary judgment to the plaintiffs declaring the town's rules and regulations in question null and void, finding that the State had pre-empted the town's right to legislate in this area. We disagree, and find that the record before us does not support granting plaintiffs' motion for summary judgment.

While it is true, as Special Term found, that a municipality may not enact a local law which is inconsistent with or in derogation of a general law of the State (Consolidated Edison Co. of N.Y. v. Town of Red Hook, 60 N.Y.2d 99, 468 N.Y.S.2d 596, 456 N.E.2d 487; People v. Cook, 34 N.Y.2d 100, 356 N.Y.S.2d 259, 312 N.E.2d 452; Matter of Ames v. Smoot, A.D.2d 471 N.Y.S.2d 128, [2d Dept., 1983]; Wholesale Laundry Bd. of Trade v. City of New York, 17 A.D.2d 327, 234 N.Y.S.2d 862, affd. 12 N.Y.2d 998, 239 N.Y.S.2d 128, 189 N.E.2d 623), the State may not impose legislation upon privately held property, absent legitimate bases founded upon a valid exercise of its police powers and, when such is done, a compensable taking may occur (see People v. Miller, 235 App.Div. 226, 231, 257 N.Y.S. 300, affd. 260 N.Y. 585, 184 N.E. 103; People ex rel. Howell v. Jessup, 160 N.Y. 249, 268). This is specifically recognized by the ECL which exempts from State ownership all fish, game, wildlife, shellfish, crustacea and protected insects which are "legally acquired and held in private ownership" (ECL 11-0105) and, in addition, allows for the establishment of private parks and waters (ECL 11-2109).

The defendants herein are the successors to the original Trustees of the Freeholders and Commonalty of the Town of Southampton whose proprietary rights to certain lands and waters of the Town of Southampton and their right to legislate and control the same as a body politic is derived from antique, royal land grants and patents which have been repeatedly confirmed and upheld throughout the history of this State for over 300 years by both the framers of the State Constitution and the Legislature despite various specific attacks upon such authority (see People v. Miller, 235 App.Div. 226, 257 N.Y.S. 300, supra, and cases therein cited and discussed). Though we recognize the fact that provisions contained in ancient land grants have been held under certain circumstances to be less than sacrosanct (see Demarest v. Mayor, 74 N.Y. 161; People ex rel. Squires v. Hand, 159 App.Div. 510), the grant of authority to the defendants, confirmed by the decisions of the courts of this State, recognizes a private right of ownership to property administered by defendants as a body politic. Such property rights in the people of the Town of Southampton would remain and exist even if the town's existence as a municipal government were terminated entirely.

Thus, absent some countervailing consideration, the State may not interpose the legislation in issue here upon the people of the Town of Southampton. Plaintiffs have failed to point to any such consideration in this case. Though the State asserts its desire as parens patriae to protect fish and fry and to conserve our natural resources, which is a seemingly valid exercise of its police powers, the record before us does not establish, as a matter of law, that this consideration is a valid one.

"Fish running at large * * * ferae naturae, and while in their natural element unconfined, are the public property of all the people of the State in common, and no person can acquire property therein, divested of the rights of others, excepting by taking and reducing them to actual possession" (Matter of Fishway [Town of Deposit ], 131 App.Div. 403, 410; cf. Smith v. Odell, 234 N.Y. 267, 270-272, 137 N.E. 325). There is no proof submitted herein regarding the specific waterways involved, the nature thereof, and the abilities of the fish in question to pass freely in and out of them. The only assertion pertaining to those issues is the contention of defendants' counsel in an affidavit that acceptance of plaintiffs' arguments would permit State legislation with respect to a fish bowl. If in fact the waterways involved are, in effect, very large fish bowls, from which fish in the wild, ferae naturae, can neither enter nor escape, and their population is maintained solely through stocking and spawning therein, as appears to be the case, we see no need for State management. Any necessary conservation may be effected by the stocking of these waterways, an act which precedes the taking of fish therefrom by anglers. Since we are not informed of the specific nature of things in this regard, we cannot say, as a matter of law, whether any State right, vis-a-vis a totally private right, is herein involved.

Plaintiffs' assertion, relying on Rogers v. Jones (1 Wend. 237) and Lawton v. Steele 119 N.Y. 226, 23 N.E. 878, that the State may legislate regarding private as well as public waters for the conservation of fish and fry must be rejected with qualification. Both those cases involved waterways which were arms of the sea, and fish which were ferae naturae, which, though swimming through private waters, nevertheless remained within the public domain. As we have indicated, the record before us precludes a finding, as a matter of law, that such is the situation here. Years after the decisions in Rogers v. Jones (supra) and Lawton v. Steele (supra), this court, in arriving at the decision in People v. Miller (235 App.Div. 226, 257 N.Y.S. 300 supra ), a case which the State would erroneously have us limit to legislation regarding clams and other crustacea bound to the land underwater, specifically stated that it had found that the courts had not upheld the right of the State to legislate over fish classified as ferae naturae "when found upon private property, unless they were in streams or other waters from which they might escape" (People v. Miller, supra, p. 233, 257 N.Y. 300). As previously noted, Miller (supra), which was affirmed by the Court of Appeals (260 N.Y. 585, 184 N.E. 103, supra ), would support a finding in defendants' favor herein, were it established that the waterways involved in fact confined the free passage of the subject fish to within their boundaries.

In so holding, we are not unmindful of ECL 11-2109 which precludes the laying out as private any waterway which was stocked with fish by the State of New York during the times herein involved and the State's claim that it has, from time to time, in varying amounts and for varying durations, stocked the waters of the Town of Southampton. Our examination of the record on appeal has, however, revealed that if the State has stocked the waters in question, its stocking of those waters has diminished to a great extent over the years, it was sporadic, there is a question as to whether it was done with town approval, and proof that the town requested it is equivocal. We are reluctant to grant to the State in perpetuity an unqualified right to consider waters stocked by it to be public or State waters, where there is no proof that the State has in fact stocked those waters, and, if the State has stocked those waters the genesis of its action is unclear, the knowledge of it and its consequences by the local municipality has not been shown, and the relative breadth of such action vis-a-vis the size of such waterways involved and the efforts by the town to stock those waters has not been established. In order to find in favor of plaintiffs we would require a more definitive and higher degree of proof than may be found in this record.

The same failure of proof exists with regard to plaintiffs' contention that the town, by its acts, has dedicated the use of its waters, and its fish, to the public. The specific circumstances of public use of Southampton's waters are unclear on this record. We think that questions of fact are...