
    Tuscarora Club of Millbrook, New York, Appellant, v. William H. Brown, Respondent.
    Third Department,
    December 30, 1912.
    Real property — deed — exception or reservation of fishing rights — rights of subsequent purchasers,
    The defendant while living with his mother deeded to her a tract of land through which the Millbrook stream flowed and gave her a bill of sale of all his personal property to secure obligations to her. After such obligations had been fully paid she, under his direction, executed a deed to the land containing the clause “reserving the right to William H. Brown, Jr., to fish in said Millbrook stream.” Plaintiff secured the land under a deed which for a more particular description referred to a former deed containing the above clause. There was sufficient to put the plaintiff upon inquiry as to defendant’s rights.
    
      Held, that since the defendant’s mother held merely the naked paper title to the land without any beneficial interest therein, and since she made the conveyance for him, the plaintiff took title subject to the defendant’s fishing rights.
    Houghton, J., dissented in part, with opinion.
    Appeal by the plaintiff, Tuscarora Club of Millbrook, New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Delaware on the 20th day of July, 1912, upon the decision of the court rendered after a trial at the Delaware Special Term.
    
      Davies, Auerbach, Cornell & Barry [Charles E. Hotchkiss of counsel, Harold Harper with him on the brief], for the appellant.
    
      Andrew C. Fenton, for the respondent.
   Kellogg, J.:

The court was justified in finding that the defendant, the owner of the premises in question, through which the Millbroolt stream flowed, on the 15th day of November, 1883, deeded the premises, which were'described as fourteen acres, to his mother, by an ordinary quitclaim deed, reciting a consideration of twenty dollars; at that time he was living with his mother, became embarrassed and deeded this land to her and gave her a bill of sale of all his personal property to secure obligations to her, which obligations were subsequently paid in full. February 21, 1885, after such obligations had been fully paid, she wrote him that she was offered twenty-five dollars for the fishing ground, and asked if he wanted to sell it; he replied that he would not sell the fishing ground, but if they wanted the ground and let him have the fishing they could have it for twenty-five dollars, as he did not know that he would ever be back and need it, but he wanted it if he did come back so that he could fish; if they wanted it and would do that he directed her to give them a deed. Pursuant to this direction the mother gave to Mrs. Carroll an ordinary quitclaim deed which, after the description, contained the clause “reserving the right to William H. Brown, Jr., to fish in said Millbrook stream.” Mrs. Carroll conveyed the premises to one Austin, by an ordinary quitclaim deed, which contained the same provision. Austin, October 15, 1887, conveyed the premises to the De Silvas for an expressed consideration of twenty-five dollars, describing them as three acres, the deed containing the same reservation, and on the same day the De Silvas mortgaged the premises to Austin for five hundred dollars under a different description, describing the premises as containing fourteen acres more or less, with a clause “ for a more particular description reference is had to a deed given by second party and wife to A. Ward De Silva and Joseph L. De Silva, hearing date September 14th, 1887, and also to a deed given by second party and wife to A. Ward De Silva and Joseph M. De Silva bearing date October 15th, 1887. This conveyance being intended to cover the same lands and all of them mentioned and described in those two deeds.” July 23, 1898, the premises were conveyed by a referee in mortgage foreclosure action to one Soop, the premises being described as bounded “Southerly by lands of Marcus Shavar, Westerly by lands of Francis O’Connor, Northerly by the highway leading Up-the Millbrook stream, Easterly by lands •in possession of Wm. H. Brown and lands of Edward Cant-well, being about fourteen acres of land, be the same more or less. For a more particular description reference is had to a deed given by second party and wife to A. Ward De Silva and Joseph M. De Silva, bearing date September 14,1887, and also to'a deed given by second party and wife to A. Ward De Silva and Joseph M. De Silva, bearing date October 15, 1887. This conveyance being intended to cover the same premises and all of them mentioned and described in those two deeds.”

Soop conveyed to the national bank by substantially the same description, except in referring to the deeds which formerly described the property, instead of the erroneous expression “given by second party.and wife,” it named Theopolu's Q-. Austin and wife as the grantors. April 15, 1901, the bank conveyed to the plaintiff under substantially the same description contained in its deed of the premises.

The court found that the reserving clause in the deed was an' exception rather than reservation and retained to the defendant the right to fish in the stream, on the theory that.the deed from the defendant’s mother was a mere mortgage which had been satisfied and that the defendant was the owner, the mother simply holding the naked title and having conveyed it to Mrs. Carroll as his agent and that, therefore, the deed left the fishing right in the defendant just as it was prior to the Carroll deed. I do not think it material to consider whether it is a reservation or an exception. Clearly as between the defendant and his mother before the mortgage was paid, and more particularly after its payment, he had the clear right to fish in the stream. He never consented to a conveyance of that right and it was not conveyed, the deed expressly reserving or excepting it. To fairly locate the land under the plaintiff’s deed a reference was necessary to the Austin deed which contained this reservation. There was sufficient to put the proposed purchaser upon inquiry as to the defendant’s rights. We do not know whether it made inquiry or not, or whether or not the prior grantors in the chain of title from Mrs. Brown made inquiry. Plaintiff relies upon the acknowledgment contained in the deed that the consideration was paid as its only evidence of good faith, without making any proof that it did not know of the reservation itself and did not know of the facts and circumstances under which it was made. I think we may fairly assume that it made inquiries and ascertained the facts, but perhaps relied upon the technical rule that a reservation in a deed to a stranger was ineffectual and, therefore, the defendant had no fishing rights. But we have seen that the defendant was really the grantor to Mrs. Carroll, and the recital in her deed either notified her of the defendant’s rights or put her upon inquiry. Where a person is put upon inquiry he must be charged with the knowledge which he reasonably would have obtained had he made inquiry, and if such inquiry had been made it would have appeared that the defendant owned the property, the mother holding merely the naked paper title without any beneficial interest therein, and that she was making the conveyance for the defendant, and that, therefore, the reservation in the deed was in favor of the party really making the deed. If it had distinctly appeared as a matter of fact that the plaintiff never knew of this clause in the prior deeds and never knew of any reservation of fishing-rights, and paid the consideration believing that it had an unincumbered title, the case might perhaps be different. In the absence of such proof I think it is fair to assume that it did know of the clause and made satisfactory inquiry with relation to it. I think, therefore, it bought subject to the defendant’s fishing rights.

As the defendant’s mother had no title, the plaintiff cannot acquire title through her, except by showing: (1) That she was authorized by the defendant to convey, thus making her conveyance his; or (2) that it is a purchaser in good faith and without notice, relying upon the deed from the defendant to her.

The first suggestion is met by the clause in the deed which shows that the defendant never conveyed or authorized to be conveyed his fishing rights, and the second suggestion is answered by the fact that the plaintiff either had or was chargeable with notice of the defendant’s rights.

The Recording Act has no application to the casé. That act is intended solely to protect a purchaser from an apparent owner against a previous deed or mortgage given by him which has not been recorded. The object of such statute is to require instruments to be recorded and to make the record of them notice to subsequent parties dealing with the grantors. (Raynor v. Wilson, 6 Hill, 469.)

If the deed to the plaintiff had contained literaEy the same reservation there could be no doubt about the case. But it contains it only by referring to former deeds for an accurate description of the premises which were being conveyed by a description otherwise indefinite. Therefore, I have stated that possibly the plaintiff might have shown that it had no actual knowledge of the contents of the original deeds making its title, but' in the absence of such showing I think it must fairly be charged with knowledge of their contents when they are so definitely referred, to in its deed. In saying that it does not appear that the plaintiff did not know of the reservation in the deed, and that possibly evidence upon that point might have a bearing, the expression carries no suggestion as to the opinion of the court upon that subject, as it is not in the case and has not been considered. The judgment should, therefore, be affirmed, with costs.

All concurred; Houghton, J., in opinion, except Smith, P. J., not voting.

Houghton, J. (concurring):

I think the judgment dismissing the plaintiff’s complaint can be sustained only on the theory that the so-called reserva^ tion in the deed from defendant’s mother to Carroll was in fact an exception and not a reservation. If the words used in the deed, “reserving the right to William H. Brown, Jr., to fishin said Millbrook stream,” be regarded as a reservation merely such reservation would be void, because, in the first place, the right to fish is legally a part of the land itself and not something issuing out of it, which is a necessary element of a reservation, and in the second place, because, even though it be assumed that the defendant was not such a stranger to the deed as to make the reservation void, his acts in permitting his mother to convey, as though she was the owner, estopped him from asserting that he was not a stranger to the title and that he had some equitable interest in the property which justified a reservation in his behalf.

If the words be treated as a mere reservation the plaintiff and its grantors had a right to say, from the record and from the language employed, that it was one in behalf of a stranger and, therefore, inoperative and void, and hence one which they had the right to ignore and concerning which they were under no obligation to make inquiry. But from the nature of the thing attempted to he reserved the law compelled the language to be read as an exception rather than a reservation. Millbrook stream was private water, and while the defendant’s mother held title to land through which it ran, she could have conveyed the right to take fish thereon separate and apart from any conveyance of the land, and when she conveyed the land itself she could except from such conveyance the right to take fish from such stream, thereby retaining in herself that portion of the land conveyed. Proprietors of the soil through which nonriavigable streams flow have the exclusive right of fishing therein, and the right to fish is an interest in the land itself and may pass by grant. (Rockefeller v. Lamora, 85 App. Div. 254.) The right of fishery is not a mere easement in land. It is more than that, and is in the nature of an incorporeal right, and by strict classification is a profit a prendre, like a right to take coal or ore, or cut grass or timber, without severance or ownership of the land itself, and is within the Statute of Frauds and can he granted only by deed. (Jones Ease. §§ 57-60; Washb. Ease. & Serv. [3d ed.] 528-532.)

The right to fish being, therefore, an interest in the land itself and not something growing out of it and created by virtue of the conveyance, the language used in the deed from the defendant’s mother to Carroll must necessarily be deemed to create, not a reservation, but ah exception, and the plaintiff and its grantors were bound to so construe it. (West Point Iron Co. v. Reymert, 45 N. Y. 703; Corning v. Troy Iron & Nail Factory, 40 id. 191, 209.) The plaintiff and its grantors must be assumed to .have known that the right of fishery was an interest in land and that it was not, strictly speaking, a subject of reservation, and that, therefore, it must be deemed, in order to give the words any effect whatever, an exception out of the premises granted. If, however, there was any doubt as to the intention of the parties that it should be an exception rather than a reservation, they are presumed to know that extrinsic evidence was competent for the purpose of showing the intention of the parties in using the language employed. (Bridger v. Pierson, 45 N. Y. 601.)

It is true that the defendant’s mother prior to her conveyance to Carroll had not granted the right to fish to the defendant and that the exception in the deed from her did not operate to vest title thereto in him, nor was it shown upon the. trial that the mother had subsequently conveyed such title to him. The evidence does show, however, that she made the exception at his request and that he asserted his right to fish thereunder, and it is fair to assume that he exercised that right under license from her and by her authority and consent. This right for him she excepted from her conveyance, and while the plaintiff has the right to prohibit all others from fishing in the stream, there was expressly withheld from it through the mesne conveyances from the mother the right to' prevent the defendant from so doing while he was acting under her, and, hence, no injunction could issue against him.

It might be added that undoubtedly the mother has no power to convey the right to fish to any other person than the defendant, and that the defendant himself has no right to convey such privilege to others, but can only exercise it himself.

For these reasons I concur in an affirmance of the judgment.

Judgment affirmed, with costs.  