137 N.E. 325 | NY | 1922
The action is brought by a taxpayer and inhabitant of the town of Brookhaven to cancel two ten-year leases of certain land lying under water in the Great South Bay, L.I. They were given for a specified consideration by the trustees of the freeholders of the town of Brookhaven to William Kreamer, represented in the action by the defendants, his executors and heirs at law.
The leases describe the land and state they were given "for the purpose, nevertheless, and for no other purpose whatever, of the gunning privilege and the right of shooting wild fowl that habit that locality."
The complaint alleges, the answer admits, and the trial court found, as did the Appellate Division, that the title to the land leased is in said trustees as proprietors and not as part of the lands necessary to carry on the functions of the town government. The title is lodged in such trustees as the successors of the patentees of two colonial patents known as the Nichols and Dongan patents, given respectively in 1666 and 1686, also by an Indian deed dated November 10, 1685. By the patents the patentees were given the exclusive right of "fishing, hawking, hunting and fowling" together with power to lease or sell the lands covered thereby.
The construction of such patents and the rights conferred by them have been finally and conclusively settled and determined by this court. (Trustees of Brookhaven v. Strong,
The title of the trustees and the rights conferred by the patents are subject, however, in the interest of commerce, to the right of the public to use the waters of the Bay for the purpose of navigation. (Lewis Blue Point Oyster C. Co. v. Briggs,supra.)
The Appellate Division, as appears from the opinion delivered, reached the conclusion that the trustees have the same property or interest in the land under water that a landowner has in the margin of a highway passing through his land; that no one has any property in wild game until he has actually taken possession of it; that mere ownership of the land where such game happens to be does not amount to a reduction to possession; that if one has a right to be upon the land, he has, incidentally, the right to take any wild game thereon, subject only to the Conservation Laws of the state and nation; that it, therefore, follows, "by parity of reasoning, that any person in the exercise of the right of passage, that is, of navigation upon the Bay, has incidentally the right to take wild fowl thereon without any license by or hinderance from those trustees."
We reach a different conclusion. There is no need to consider how far exclusive privileges of fishing and hunting in navigable waters may lawfully be granted at the present time. The privileges in controversy have been ratified, as we have seen, by successive Constitutions of the state. There is no need to consider whether such *272
privileges attach themselves to grants of the bed of the stream as implied incidents or appurtenances. That is a subject upon which judges have not been wholly in accord. (Sterling v.Jackson,
It follows that the order of the Appellate Division should be reversed and the judgment of the Special Term reinstated, with costs in this court and in the Appellate Division.
HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, CRANE and ANDREWS, JJ., concur.
Order reversed, etc. *273