
    
      Cortelyou against Van Brundt.
    A rig-ht. oi ^^gives^ no power over „,¡n prescrip-right toprecta anoth'eHsland, The patent-granted the! 23dofFebru-j^’ngS67¿0^ telyou, extends on the S.‘ *W. side to the ordinary high-water mark. The tight of fishing in the waters of the bay, or in the limits of the patent of 1668 and 1686, to New-Utreoht, does not give' any right to erect huts on the shore for that purpose. Evidence of usage inadmissible to explain the language of a' deed not ambiguous or equivocal, if, to an action of trespass, the defendant plead the general issue, and give notice that-he will offer in evidence a prescriptive right of fishing, in the sea adjoining the locus irt quo, and of usin0, and occupying the-shore for that purpose, he cannot give evidence of any prescriptive right to erect huts on the shore for the purpose of fishing; but such a custom or usage should be pleaded or mentioned in the notice. . The grant or laying out of a highway, gives only a right of way to the public ; but the fee or rignt of soil remains in the original owner, and an action of trespass will lie for any exclusive appropriation of the soil.
    This was an action' of trespass, quare clausum fregit, for entering and digging up the soil, and erecting a hut on the plaintiff’s close, in N.ew-Utrecht, in Kings County.' The defendant pleaded not guilty, and gave notice, that he would offer in.evidence, that the freeholders and inhabitants oCNeiv-XJtrecht' had, from time immemorial, used, at all .proper seasons, the right of fishing in the , .... . , ' 7 ■ • • . n bay or sea adjoining tne close in question, ana or using and occupying the shore or beach, adjoining the said bay, for the .purpose and convenience of fishing in the bay or ge£l) an(| t|iat t[ie defendant .was, one óf the freeholders and inhabitants of New-XJtrecht; and that on that day, it being t;he proper season for fishing, he had entered and a temporary hut on the close in question, for the purpose and convenience of fishing, &c. And further, ■that the defendant would give in evidence two patents to the freeholders and inhabitants ofthe said town, the ons dated the 15th August, 1668, and the other dated'the 13th May,. 1686- And further, that the citizens of this state had, from time immemorial, used, at all proper seasons* the right of fishing in the said bay, and of entering and occupying the shore or beach adjoining the same, for the purpose and convenience of fishing in the said bay, and that the defendant is one of the said citizens. And further, that the said close is a public highway or landing place, and that the defendant had a right to enter and use it for the purpose aforesaid.
    Upon the trial, the plaintiff produced a patent, dated the 23d February, 1671, to Jaques Cortelyou, for the premises.,, described as stretching along the bay, fyc. [*]He then proved that the patentee devised his lands to his two sons, who made partition; that the son of one con-, veyed to Jaques Cortelyou, son of the other, and grandfather of the plaintiff, bn the 1st February,. 1732, a parcel of land beginning at a rock commonly called the Great Rock. ' That the said rock is now at a considerable distance below ordinary high-water, mark, and is a very conspicuous object. That the plaintiff is grandson and heir at law to. the said Jaques Cortelyou, and claims the. locus in quo as part of the land described in the patent. It was admitted, that if thepatent on the S. W. or bay side, extended to ordinary high-water mark, the place where the hut was erected was within its limits• and the judge directed.the jury to consider the ordinary high-water mark,, as the S-W. boundary of the patent- -
    
      The defendant offered, under the first -and third bran-shes of his notice, to prove the facts therein, stated, but the evidence was overruled- -
    He then produced and read the patents mentioned in his notice, and contended that. he. had a right, under them,,' to use the shore, not only between- high and low-water ihark, but as far as the spring, or uncommon tides flowed, and to erect huts thereon, for the purpose o.f fishing in the bay adjoining; and also offered tó prove that from the date of the patents to that time, the freeholders and inhabitants oí New-Utrecht, had uninterruptedly enjoyed that right, but the evidence was overruled-by the judge-The defendant then offered to prove, that the locus in quo ' svas a public landing place; and the olerk of the county produced an ancient book, as-the only existing record of the roads in Kings County*in which there was an entry of ■a common highway, along the river upon the bank, to the-meadow of Peíerand Jaques Cortelyou, -and so along the ■S, W. side of the meadow over the beach, to the house of the said P. and J., and. from thence to the road to the town of New-Utrecht. At the bottom of the entry was the following memorandum -: “ Out of the way leading to J. and 'P. Cortelyou,.to low-water mark, on the north side ■of the dock of Peter Cortelyou, for a common landing place, in. breadth 6 rods, to he and continue for ever’.”
    The defendant then showed, that the hut, the erecfion of which was the only trespass attempted to be proved, was at a place within the distance of six rods from the north side of the doek of Peter Cortelyou, between the road to J. .and P. ■Cortelyou, and the ordinary high water mark, but below the limits of spring tides.'
    The plaintiff then proved, that the sea had, as far back as the memory of witnesses reached, gradually washed away the points of land opposite to the S. W. boundary ¡of the land granted to Jaques Cortelyou; but that the land within the coves had undergone little or no. alteration; that the locus in quo was'above the present usual high water mark, and between the sea and the upland; that upon a drain being cut from the meadow to the sea, stumps of trees were found," and traces of the existence of the meadow nearer to the sea than where the trespass was committed; that no use had ever been made/within the memory of witnesses, ofthe place where the trespass-was committed, as a public landing place, and that the plaintiff had a house, for about twenty-five years, nearly adjacent to the spot where the hut was erected.
    The jury found a verdict for the plaintiff for six cents damages.
    A motion for a new trial was made at the last term, and argued by Baldwin, for the defendant, and Hoffman & Harison, for the plaintiff.
    
      For the defendant,
    
    it was contended, 1.. That the evidence, offered under the first and third branches of the notice, annexed to the plea, ought to have been admitted on the trial. That the notice contained all reasonable certainty, and would have been good as a special ■plea; but that the courts, under the statute allowing notices of special matters, instead of pleading, were liberal in the admission of evidence. 2. That the evidence offered in support of the defendant’s constructions of the patents of Nicoll and Dongan, ought to have been received, 3< That the judge ought not to have directed the jury that the S. W. boundary of Cortelyoris patent extended to ordinary high-water mark.- That the ■boundary was matter of fact, which the jury were to decide. That the highest point to which the spring-tide rises, is the true boundary of the patent. (Justinian's Institutes, lib. 2. tit. 1. cap. 3.) That the rule of the civil law ought to be adopted here, because it was a grant underthe Hutch government, and the civil law prevailed, at the time, in the Seven United Provinces. 4. That -the locus in quo was a public highway or landing place, which was clearly made out by the evidence; and that'as the “act to regulate highways in the counties of Suffolk, Queens, Kings, and Richmond,” directs compensation to be made for highways, the land became vested in the people of the state, as public property;  and it was a right which could not be lost by non-user. (2 Laws N. Y. 191. 192.) That the erecting of a hut might be a nuisance, but it could not be a trespass. It was also contended, that as all prescriptive rights are presumed'to have originated in grants,-the evidence of which is lost, any thing which coiild be granted ,might be prescribed for. That, admitting the right of fishing to existas a common right in the freeholders and inhabitants of New-Uirecht, the right of erecting a hut for the purpose of fishing was appurtenant thereto. The right of drawing seines and nets on the shore, and erecting huts for the purpose, was a- natural and inseparable incident of the right of fishing.
    
      For 1he Plaintiff,
    
    it was argued, that the notice annexed to the defendant’s plea was of a prescriptive right of fishing; but the evidence offered at the trial was of a prescriptive right to erect Huts. ■ The notice under the plea must contain all the certainty requisite to make a good special plea, and nothing can bé received .in evidence which is not contained in the notice. Prescriptive rights are not-to be favoured; in England they are considered as rights, -the origin of which cannot be traced; but in this country almost every right can be traced to its origin. The.right of fishing, being common to every person, need not be established by prescription. The right of fishing gives no right of occupying the soil or shore. The right of erecting a hut, being an exclusive appropriation, can only be established by grant. Parol evidence cannot be admitted in the construction of grants. The letters patent gave only the right of fishing. By the common law, fishing and fowling were considered as royalties, and did not pass without special and express words. The defendant set up atitle under the patents, and evidence of any usage to explain or extend the grants could not be received. The letters patent only give a right of fishing within the limits of the grant,which must be considered as extending to the ordinary high-water mark. Whether the hut was erected on a public highway or landing place, was a fact to be submitted to the decision of the jury. It did not appear that the land was ever used or^enjoyed as a public highway or landing place. Besides, in laying out public highways, the right of way only passes to the public; the right of soil remains in the original owner. It appeared also, that the whole road had been washed away, and- destroyed by the encroachment of the sea.
    
      
       2 WiUe&6Q
      
    
    
      
      
        Semille 11. sec'19!.
    
    
      
       The clause of the act is as follows: “Provided always, that it shall not be lawful for the said commissioners, or any of them, to lay out any road through any person’s land, without either the consent of the owner thereof, or paying the true value of the land so laid out into a fiighwayj or road, with such damages, as he shall sustain thereby.”
    
    
      
       2 Bl. Com. 39.
    
    
      
      
        Hargraves Law Tracts, 12.
      
    
    
      
      
         Tear Books, 8 Ed• IV. fol. 9,-s. 7. 2 JSdw.VI. fol. 9. s. 21. 1 Roll. Ab. 392. s. t,&2. lBurr. 143. 146. 6 East, 154. Harg. ,Law Tracts 1 to 16. 28. 8 Term, '253.
    
   Thompson, !.

The case states that the erection of the hut was the only trespass attempted to be proved. The first question is, whether the matters of fact, contained in the 1st and 3d branches of the notice annexed to the plea, were relevant to the defence, and ought to have been admitted in evidence. These facts went only to support a custom in the inhabitants of New-Utrecht., and in the citizens of this state, to fish in the bay adjoining the close, and to use and occupy the shore for that purpose. I think this evidence was properly excluded, because, if admitted, the facts did not amount'to a- justification of the trespass in erecting the hut. A right to fish in any water, gives no power ever the land. (Ipswich v. Brown, Saville, 11. 3 Term, 256.) Nor will prescription, in any case give a right to erect a building on another’s land. This is a mark of title and of exclusive enjoyment, and it cannot be acquired by prescription; Title t,o land requires the higher evidence of corporeal seisin, and inheritance. Prescription applies only to incorporeal hereditaments, and whether the right claimed be considered as strictly a custom, or prescription, the principle is the same; the, only material distinction between them is, that one is cal and the other personal in its nature.. Coke Litt. 113. 1. 2 Black. Com. 263, 264.)

The patent under which the plaintiff claims is described as stretching along the bay, and the rule of the common law carries it down to ordinary high-water mark.— This is the settled rule, as appears from Lord Male’s Treatise de Jure Maris. (Hargrave’s Law Tracts, 12.) The doctrine of the civil law is, therefore, not our rule, and the direction to the jury, in this respect, was correct.-— The patents introduced by the defendant gave no right of fishing, except what was comprehended within the bounds of those.patents. There cannot be any real pretence for an authority under them, to encroach on adjoin-: ing patents. The usage offered to be proved was inadmissible, as a rule for the construction of those patents, because, when the language of a deed admits of but one construction, and is clear and pertinent, it cannot be con-' trolled by any different exposition to be. derived from the practice under it. The defendant must derive the right he sets up, either from the patent itself, or from usage ; and if from the latter, it must be specially pleaded, or stated as a ground of defence in the notice. The defence, in both these respects, totally failed, as the patents contained no colour for the right, and the usage to erect huts was not one of the matters .of defence expressed in the notice which had been given. - ,

The question as to the locus in quo being a public highway, was a matter of fact, depending on proof offered on each side, and the jury must have had it fairly subnritted to them. Their verdict is against the existence of the highway, and it appears to me to be agreeable to -the weight of evidence. Even admitting the existence of the highway, the general rule here is, that the fee of a highway belongs to the owner of the adjoining ground; and that the sovereign has only a right of passage. It is a servitude, or easement, and trespass will lie for any exclusive appropriation of the soil. (1 Burr. 143. 2 Stra. 104. 1 Wils. 107. 6 East. 154.)

In every view, therefore, of this case, I am of opinion that the motion for a new trial ought to be denied.

Kent, Ch. J. was of the same opinion*

Spencek, J. not having heard the argument, gave no opinión.

Rule refused.  