198 N.Y. 287 | NY | 1910
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *289 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 artificial *291 means. 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 Portibus 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 a 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 thejus 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,
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 navigation, he could not grant to a subject a right so blended therewith as to be in effect a part thereof, and, hence, the right to dredge land under water for the improvement of navigation was reserved from the general terms of the grant by necessary implication. The patents in question are silent upon the subject of navigation in any phase. The crown did not grant any right that might interfere with *293
navigation in its broad sense, because it could not, and the patents should be construed accordingly. The right to dig a channel is analogous to the right to build a lighthouse upon submerged land granted to private individuals, or to fasten buoys thereto, or to blast out rocks and remove natural obstructions therefrom. (South Carolina v. Georgia,
In Sage v. Mayor, etc. of N.Y. (
Much of this extract was quoted with approval by the Supreme Court of the United States in Scranton v. Wheeler
(
In South Carolina v. Georgia (
In Gibson v. United States (
The case of Monongahela Navigation Company v. United States
(
This court held the same way under somewhat similar circumstances in Langdon v. Mayor, etc. of N.Y. (
We think that the plaintiff has no right in the land under water that is not subject to the power of the United States to construct the improvement in question without making compensation to it. It ran the risk when it planted its oysters that the crop might be interfered with whenever Congress decided to dig a channel, or otherwise improve navigation in Great South Bay for the benefit of commerce. Its loss may be severe, but Congress is not apt to deal ungenerously with those who have good grounds for relief.
The judgment should be affirmed, with costs.
CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, HAIGHT, WERNER and HISCOCK, JJ., concur.
Judgment affirmed. *297