102 A.D. 454 | N.Y. App. Div. | 1905
The right .of the plaintiff to maintain this action depends upon the validity of the lease of lot No. 341 in Jamaica bay, Kings county, made to Frank E. Dickens on Hay 10, 1898, by the Commissioners of Fisheries, Game and Forests, the plaintiff having acquired the original lessee’s interest therein by virtue of mesne assignments.
In executing the lease the commissioners assumed to act under the provisions of section 197 of the Fisheries, Game and Forest Law (Laws of 1892, chap. 488, as amd. by Laws of 1895, chaps. 395, 974, and Laws of 1896, chap. 653).
Section 198 of the same general statute, however, as in force at the time of the execution of this lease, limited the powers conferred upon the commissioners by the preceding section by providing that it should not “ apply to or affect, lands under water owned, controlled or claimed under colonial patents or legislative grants by any town or person in the counties of Suffolk, Queens, Kings or Richmond.” (See section as amended by Laws of 1898, chap. 453, taking effect on April 22, 1898.)
The leased lot in question consisted of land under water on
The learned trial judge held that there was no evidence in the case that the town of Flatlands (which was annexed to the city of Brooklyn by chapter 450 of the Laws of 1894) at any time claimed said lands under water either under colonial patent or by legislative grant.
I am unable to concur in this view. I think the proof shows repeated assertions of a claim under the colonial patents relating to the town, beginning in the eighteenth century and never disputed until a very recent date.
The extracts in the record from the official minutes of the town meetings of Flatlands contain abundant evidence of this claim. On April 15, 1790, the freeholders and inhabitants met “in order to make prudential rules, orders and regulations concerning fishing, fowling, oystering, clamming and other benefits arising out of the bay laying within the patents of said town ” and resolved that every person not being an inhabitant “ going in the said bay ” with a batteau or other small craft for fishing should pay threepence a day to the trustees. On April 17, 1808, a town law was passed, the preamble of which recites that “ the practice of catching clams with raíces in the bays and deep waters within the patent of the town of Flatlands is found to be very destructive to the growth and increase of clams,” and this recital is followed by a prohibition against taking clams with rakes “ in the bays and deep waters within the patent aforesaid.” On the first Tuesday of April, 1810, the town meeting chose Gerret Wyckoff and Johannes Lott to be trustees of the bay of Flatlands. Other “ Trustees of the Bay of the Town of Flat-lands” were elected at the town meeting held on the first Tuesday of April, 1814, and it was ordained “ that no person or persons shall be allowed to catch crabs with rakes or tongs in the bays within the patent of the town of Flatlands.” On August 24, 1816, a town law was enacted forbidding those not inhabitants from cutting or carrying away sedge “on any marsh or meadow in the bap belonging to the town of Flatlands; ” and on September 3, 1816, at a special town meeting, it was resolved that it should not thereafter be lawful “ to catch or take clams, oysters or crabs with rakes or tongs in the waters of the patent of said town.”
The record contains further evidence to the same effect. In 1868
The evidence having demonstrated the existence of a claim at least 100 years old, in behalf of the town based upon its colonial patents and practically undisputed, I think there should have been judgment for the defendants upon the ground of want of statutory power in the Commissioners of Fisheries, Game and Forests to grant the lease upon which the plaintiff’s title rests.
The appellants ask us to go further and determine that upon the evidence in the record before us not only the town’s claim but the
In the present case, as there is a fatal objection to the plaintiff’s right to maintain the action, which cannot be obviated upon a new trial, the order of reversal should direct that the complaint be dismissed.
Hibschberg, P. J., Woodward and Jenks, JJ., concurred; Hooker, J., not voting.
Judgment reversed and new trial granted, costs to abide the final award of costs.