90 N.Y.S. 646 | N.Y. App. Div. | 1904
The Trustees of the Freeholders and Commonalty of the Town of Brookhaven, and diaries A. Post, their lessee, bring this action of trespass against Wilson R. Smith, John Morgan and Albert W. Pell, for building a pier upon certain lands under water, in the Great South bay, of which the plaintiff, the Town of Brookhaven, is concededly seized in fee under royal grants, dated in 1666, 1686 and 1693 respectively. The defendant Smith is the owner of a piece of upland, bounded on high-water mark, his title being derived, it appears, under a patent dated in 1697, four years after the last grant to the town of Brookhaven of the lands under water in Great South bay. The plaintiffs have been given a judgment in the present action, the defendants appealing.
There is practically no dispute as to the facts. The appellants Morgan and Pell say in their brief that they “ do not dispute the fact that the respondent corporation is the owner of lands upon which the trespass is alleged to have been committed or that the respondent, Post, under a written lease was entitled to possession thereof, but assert that said ownership and possession of respondent was subject to navigation and the riparian rights of appellants,” and that “ this appeal squarely brings before this court for determination the question as to whether an owner of upland adjoining navigable water has the right to erect an appropriate and suitable dock into such water for the purposes of navigation without the consent of the owner of the soil under water.” While there is some slight difference of opinion as to the stipulation in reference to the character of the dock which has, in fact, been erected by the defendants, it may be said, for the purposes of this discussion, that the plaintiffs concede that if the defendants have the right to construct a dock at all upon their premises the one now existing is a proper dock, so that the case presents but a single broad question as to the rights of the parties in the lands lying between high-water mark and the navigable portions of Great South bay.
It is well settled in our jurisprudence that the laws which subsist at the time and place of making a contract, and where it is to be performed, enter into and form a part of it, as if they were expressly referred to and incorporated in its terms, and that this principle embraces alike those which affect its validity, construction,
In the case of Yates v. Milwaukee (10 Wall. 497, 504) it was said of a riparian owner upon the Milwaukee river that “ whether the title of the owner of such a lot extends beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor,
But rivers in which the tide does not ebb and flow are essentially different, as a matter of law, from tidewaters. Fresh-water rivers are navigable or non-navigable as a matter of fact; they are navigable if they are capable of affording navigation, and they are made highways by statute for limited purposes (Matter of Burns, 155 N. Y. 23, 26), while salt rivers and tidewaters generally are navigable as a matter of law. A rule, therefore, which permitted riparian owners to build docks out to the navigable portions of a fresh-water river would not necessarily confer any rights upon the owners of uplands bounded on tidewaters, for the reason that the latter, being navigable in law, are navigable at every point covered by the water. But there was no such rule of law in respect to navigable waters as that suggested in Yates v. Milwaukee (swpra) at the time when the grant was made to the town of Brookhaven, and, as we have already suggested, the rights of the parties are to be determined by the law as it existed at the time that the grant was made. “ A grant, in its own nature,” says Chief Justice Markttat.t, in Fletcher v. Peck (supra), “ amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right,” and the question here is what rights of property became vested in the town of Brookhaven by its several grants of lands under water, for whatever rights it then acquired still belong to it. The United States Supreme Court in Shively v. Bowlby (152 U. S. 1) had this subject under consideration, and it was declared upon a long line of cited authorities (p. 13) that in “ England, from the time of Lord Hale, it has been treated as settled that the title in the soil of the sea, or of arms of the sea, below ordinary high water mark, is in the King, except so far as an individual or a corporation has acquired rights in it by express grant, or by prescription or usage;. * * * and that this title, jus privatum, whether in the Ring or in a subject, is held subject to the public right, jus pvblAcwm, of navigation and fishing.” The same high authority declares it to be “ equally well settled that a grant from the sovereign
The construction of a dock, while it may be useful to individuals engaged in navigation, is not involved in the public right of navigation as understood by the law; navigation is defined by Bouvier (2 Boirv. L. Diet. [2d ed.] 196) as “ whatever relates to traversing the sea in ships; the art of ascertaining the geographical position of a ship, and directing her course,” while the American and English Encyclopsedia of Law (Yol. 21 [2d ed.], 445) declares that “to navigate means to steer, direct or manage a vessel, and implies that the act is done by those on board of the vessel itself.” We understand by the right of navigation the right to pass over waters freely and without obstructions. This right belongs to all craft, whether large or small, where the waters are in fact or in law navigable, and there can be no right on the part of a riparian owner, or others, without the consent of the owners of the title to the lands, to erect any structure which shall interfere with this right, or which shall interfere with the absolute right of property in the owner of the lands. While usage or positive statutes in individual States where the right -to lands under waters is vested in the State may justify the construction of docks and wharves out to the navigable portions of streams or waterways, no authority controlling here has ever held that where the title to lands under water was vested in an individual or a corporation, an owner of lands bounded by high water had a right to trespass upon such lands and construct a permanent dock. We think the defendants have no such right in the case now before us.
The judgment appealed from should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.