Trs. v. Mecox Bay Oyster Co.

• Decision Date: 08 October 1889
• Citation: 116 N.Y. 1,22 N.E. 387
• Parties: TRUSTEES, ETC., OF THE TOWN OF SOUTHAMPTON v. MECOX BAY OYSTER CO., Limited.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 1

22 N.E. 387

TRUSTEES, ETC., OF THE TOWN OF SOUTHAMPTON

v.MECOX BAY OYSTER CO., Limited.¹

Court of Appeals of New York,

Second Division.

Oct. 8, 1889.

Appeal from a judgment of the general term of the second judicial department affirming a judgment in favor of the plaintiff, entered upon a verdict of a jury, directed by the court. This action was in the nature of ejectment, to recover land under the waters of Mecox bay, in the town of Southampton, Suffolk county. The town claimed title to the land under the colonial charters. There were two charters to the town. The first was dated November 1, 1676, and was granted by Governor Andros. The second was granted by Governor Dongan, and was dated December 6, 1686. The first settlers in the town came from Lynn, Mass., about the year 1641. They had obtained a deed from James Farrett, who professed to be the agent or deputy of the Earl of Stirling, who appears to have claimed that he hald a grant of Long island. The Farrett deed conveyed no particular land, but purported to grant to the grantees named therein, and their associates, the right ‘to sit down upon Long island, there to possess, improve, and enjoy eight miles square of land,’ etc. It further gave the right to purchase from the Indians ‘any of the aforesaid land, or any part thereof.’ After their settlement on the island, these settlers obtained deeds from the Indian occupants. The Andros patent recited the existence of a town upon Long island, ‘commonly called by the name of ‘Southampton.” It granted, ratified, and confirmed unto the patentees named therein, ‘for and on the behalf of themselves and their associates, freeholders and inhabitants of said town, all the aforementioned tract of land,’ etc., ‘within the bounds of the town; to have and to hold all and singular * * *,’ etc., ‘to the said patentees and their associates, their heirs, successors, and assigns: provided, * * * that all the lands,’ etc., ‘within the said limits shall have relation to the town in general, for the well government thereof.’ It gave the right to purchase the Indian title, and conferred upon ‘said patentees and their associates all the privileges and immunities belonging to a town within this government.’ The Dongan patent recited the Andros patent, and that differences existed between the inhabitants and Indians concerning the bounds of the town, and that the clauses in the Andros patent constituting a town were not sufficient to give such privileges and immunities as it was designed to give. It granted, ratified, and confirmed unto the patentees therein named, ‘freeholders and inhabitants of Southampton, hereinafter erected and made a body corporate and politique, and entitled to be called by the name of the ‘Trustees of the Freeholders and Commonalty of the Town of Southampton,’ and their successors, all the aforerecited tract of land,' etc., ‘rivers, waters, lakes, ponds, broods, streams, beaches, harbors, fishing, hunting, and fowling,’ etc. The habendum clause of this grant was as follows: ‘To have and to hold all the aforerecited tract and parcel of land and premises, with their, and every of their, appurtenances, unto the said Major John Howell, [and eleven others,] freeholders and commonalty of the towne of Southampton, and their successors, forever, to and for the several and respective uses following, and to no other use, intent, and purpose whatsoever. That is to say, as, for, and concerning all and singular the severall respective parcells of land and meadow, part of the granted premises, in any wayes taken up and appropriated, before the day of the date hereof, unto the several and respective present freeholders and inhabitants of the said town of Southampton, by virtue of the aforerecited deed or patent, to the only use, benefit, and behoofe of the said respective present freeholders and inhabitants, to their several and respective heirs and assigns, forever. And as, for, and concerning all and every such parcell or parcells, tract or tracts, of land, remainder of the granted premises not yet taken up or appropriated to any particular person or persons by virtue of the aforerecited deed or patent, to the use, benefite, and behoofe of such as have been purchasers thereof, and their heirs and assigns, forever, in proportion to their severall and respective purchases thereof, made as tenants in common, without any lett, hindrance, or molestation to be had or reserved upon pretence of joynt tenancy or survivorship, anything contained herein to the contrary in any ways notwithstanding.’ It then, with considerable detail, created the inhabitants a body corporate by the name of the ‘Trustees and Commonalty of the Town of Southampton,’ and provided for the government thereof. The contention of the defendant is that, under the Dongan charter, the title to the undivided and unappropriated land vested in purchasers thereof under the Farrett and Indian deeds as tenants in common, which purchasers are known and described as ‘proprietors;’ and it proved a title from certain trustees of said proprietors, elected pursuant to chapter 155, Laws N. Y. 1818.

E. A. Carpenter, for appellant.

James C. Carter, for respondent.

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

Nearly all the Long island towns were created by royal charters, and the patents were intended, not only to create the corporate bodies, and thus clothe the inhabitants with the power of government, but also to convey the title to the land within the bounds of town. In several cases the charters of these towns have been before the courts for construction, and invariably it has been decided that under them the towns, in their corporate character,took title to the undivided and unappropriated land within their bounds. Brookhaven v. Strong, 60 N. Y. 57;Hand v. Newton, 92 N. Y. 88;Robins v. Ackerly, 91 N. Y. 98;People v. Railroad Co., 84 N. Y. 567;East Hampton v. Kirk, 68 N. Y. 460;Rogers v. Jones, 1 Wend. 237; Atkinson v. Bowman, 42 Hun, 404; North Hempstead v. Hempstead, 2 Wend. 109, With one or two exceptions, all the cases cited were either actions for trespass or in ejectment, and involved directly the question as to the title of the towns. While the precise point that is now made does not appear to have been considered or discussed in the opinions of the court, or in the briefs of counsel, the cases show that in some of the charters the language of the habendum clauses were similar to that in the Dongan charter of Southampton; and, if the defendant's contention is sound, those decisions could not be sustained. The charter of East Hampton, which was before this court in East Hampton v. Kirk, and before the supreme court again in Atkinson v. Bowman, and the charter of Brookhaven, which was before this court in Brookhaven v. Strong and Hand v. Newton, have habendum clauses almost identical with the Dongan charter of Southampton. In all of them it was distinctly decided that the title to the common land was in the towns; and as to the land under water of the navigable bays, rivers, and harbors, if there was before any doubt about it, the case of Brookhaven v. Strong settled the law that, notwithstanding the public right to navigate such waters, the land under the water could be the subject of exclusive ownership, and, in the case then before the court, was owned exclusively by the town. I am unable to perceive any distinction between the cases cited and the one we are now considering. The claim that the original settlers had title under the Farrett and Indian deeds, which was recognized by the English government and confirmed in the royal grants, has no foundation in fact or in law. The case contains no evidence of any title possessed by the Earl of Stirling. Whatever the historical fact may be, we cannot go outside of the record to find it. Title must be, and always is, a matter of proof; and no evidence was given in this case tending to show that the Earl of Stirling had any property right in Long island. Nor did the Indians have any title to the land which they could grant, and which would be recognized in the courts of this country. The English possession in this country rested upon the right of discovery, and the lands were held by the king as the representative of the nation. This subject has been learnedly discussed by Chief Justice MARSHALL, in Johnson v. McIntosh, 8 Wheat. 543, and by Chief Justice TANEY in Martin v. Waddell, 16 Pet. 367; and in these cases the supreme court of the United States said: ‘If the discovery be made, and possession of the country be taken, under the authority of an existing government, which is acknowledged by the emigrants, it is supposed to be equally well settled that the discovery is made for the whole nation, * * * and that the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains.’ ‘The Indian tribes in the new world were regarded as mere temporary occupants of the soil, and the absolute rights of property and dominion were held to belong to the European nation by which any particular portion of the country was first discovered. Whatever forbearance may have been sometimes practiced toward the unfortunate aborigines, either from humanity or policy, yet the territory they occupied was disposed of by the governments of Europe at their pleasure, as if it had been found without inhabitants.’ The supremacy of the Dutch government was never established over the eastern end of Long island, and, although there may have been assertion of dominion and title, there never was any exercise of sovereign power over the lands in that part of the island until the final establishment of the power of England through the government and laws promulgated by the Duke of York. We must look, therefore, for the origin of the title to the land within the plaintiff's town, to the grant of the Duke of York, and to the royal charters issued...