14 Johns. 255 | N.Y. Sup. Ct. | 1817
delivered the opinion of the court. This is an action of trespass for breaking and entering the plaintiff’s close, called the Green Flats, and fishing thereon. A title to the locus in quo is made under a patent to Hugh Patrick, bearing date the 5th day of January, in the year 1768, by which eight islands and two flats of land, lying and being in Hudson's river, are granted to the patentee. The locus in quo is claimed as an island, which is described, in the patent, as follows : “ One other island, directly opposite the mouth of the said Saugerlies creek, commonly called and known by the name of the Green Flats, containing forty acres.” From the' testimony it appears that the land claimed undhr this patent is usually covered with water, and could not, therefore, in strictness, be called an island. There does not, however, appear to be any island, or other land, in any way answering the description in the grant; and as it is called a flat, as well as an island, it may be considered as sufficiently descriptive, and as coming within the patent. There can be no doubt but this was the land intended to be granted. There are no words injhe patent ¿howing an intention in the government to grant any fishery. It would, therefore, seem to be a reasonable interpretation of this grant,
In Lord Fitzwalter's case, (1 Mod. 105.,) Hale, Ch. J., says, “ a river which flows and reflows rs, prima facie, common to all; and if any one will appropriate a privilege to himself, the proof lieth on his side; and there is no contradiction, in the soil being in one, and the right of fishing in the river common to all fishermen.” If the injury complained of, in this case, was the taking fish in the waters covering this flat, or island, I should ver) strongly incline to think the action was not sustainable. The case is not very explicit on the subject, but it is very fairly to be collected from it, that this flat is only used for the purpose of drawing the nets from the channel of the river; if so, it is not the fishery that is claimed under the patent; that still remains common. And, although the want of the convenience of drawing nets upon this flat may virtually exclude others from the fishery, yet this will not give a right to use the flat, or island, adjoining the fishery, any more than it would the shore when the convenience of fishermen might require it.
Although the lease from Cockburn to the plaintiffs purports to grant the exclusive privilege of fishing with their nets on the westerly side of the Green flats, within certain bounds therein mentioned, we are not to construe this as a lease of the fishery, but only of a certain part of the island, or flat, for the convenience of drawing nets; and thus far it was within the right and power of Cockburn to grant. In this point of view, the case comes within the rules and principles which governed the court in the case of Jacobson v. Fountain, (2 Johns. Rep. 176.) The right being established in the .plaintiffs, and those under whom they claim, to the flat, or, island, the trespass and measure of damages are not controverted. The plaintiffmust, therefore, have judgment upon the verdict, as found by the jury.
Judgment for the plaintiffs.