
    John Bardes et al., Plaintiffs, v. Martin Herman, Defendant.
    (Supreme Court, Richmond Special Term,
    February, 1909.)
    Navigable waters: Rights of the public and interference therewith — In general: Ownership of lands under waters and grants thereof — Grants to and acquisition by private owners — Colonial patents; Boundaries.
    Public lands — Construction and operation of the grant or patent — Construction — Against whom construed..
    The jus privatum of the crown, which was a property right of the sovereign of England held by him in his private capacity, which he could convey and vest in others of his own private will, and by which he was deemed to be the absolute owner of the soil of the sea and of the navigable rivers, was inconsonant with the circumstances and repugnant to the institutions of the colonies and so much of the common law as conferred such right was not adopted by the colonies, but the ownership of the tideway or foreshore was abandoned to the. owners of the upland, who became the owners thereof subject to the rights of the public.
    The jus publioum, or right of access to navigable waters for navigation, boating, bathing and fishing, is vested in the people of the State for the public use and is subject to control and regulation by the Legislature.
    A grant by the State to the owner of the upland of land under tide waters extending from low water is made in the interest of commerce and does not extinguish the jus publioum over the lands granted, but operates simply as a license to erect wharves and piers in such manner as shall not constitute a nuisance.
    The Norwood patent granted under the proprietary government of the Duke of York before New York became a crown colony, which bounded the lands granted on the east by the “waterside,” carried the grant to low water and vested in the patentee the foreshore or tideway.
    The term “ waterside ” having no technical meaning and being ambiguous, the practical construction of the parties by which the grant was extended to low water mark should govern.
    The doctrine that grants by the sovereign are to be strictly construed is applicable only to their effect upon public rights and should not be extended to grants of lands upon tide waters so fajas the jus privatum is concerned.
    
      Chapter 763, Laws of 1857, and chapter 763, Laws of 1878, granting to owners the right to extend piers and bulkheads, followed by the filling in of the lands to the bulkhead lines established thereby, extinguished the jus publivum in the lands between high and low water inside such bulkhead lines.
    Action for specific performance of a contract for the sale of land.
    William Alliare Shortt, for plaintiff,
    Saul S. Myers, for defendant.
   Blackmar, J.

This is an action for specific performance brought by the vendor against the vendee under a contract for the sale of land on Staten Island. The only question litigated was whether the plaintiff’s title was marketable. The plaintiff proved a chain of title from the ¡¡Norwood patent of 1676, hut the defendant objected that the ¡¡Norwood patent did not convey the tideway or foreshore; that a part of such tideway was included in the property in question, or at least not excluded by plaintiff’s proof, and that, therefore, the title was not marketable.

The case was tried in June and has been exhaustively discussed by counsel. The arguments in writing consist of a brief by plaintiff, an answering brief by defendant, a reply by plaintiff, “ observations on plaintiff’s brief in reply ” by defendant, and “ comments on defendant’s observations on plaintiff’s brief in reply” by plaintiff. The first of these written arguments was submitted in October, 1908, and the last in January, 1909. Meanwhile, the Court of Appeals, on November tenth, handed down its decision in the case of Barnes v. Midland Railroad Terminal Company (193 N. Y. 378). It seems to me that the doctrine there enunciated leads to a decision, that the title of the plaintiff is marketable, even if the premises in question embrace a portion of the land originally lying between high and low water marks. The opinion in the Barnes case begins with a statement of the law established by the case of Town of Brookhaven v. Smith, 188 N. Y. 74, in the following words, viz.:

It is clearly pointed out in the Brookhaven case that the rigid rules of the common law of England relating to littoral and riparian rights are not adaptable in every particular to our political and geographical conditions; that in. adopting the common law of the mother country we did not incorporate into our system of jurisprudence any principles which are essentially inconsonant with our circumstances or repugnant to the spirit of our institutions; that the jus privatum of the crown, by which the sovereign of England was deemed to be the absolute owner of the soil of the sea and of the navigable rivers, was totally inapplicable to the conditions of our colo-’ nies when the common law was adopted by them and that this right, from the first settlement of our province, seems to have been abandoned to the proprietors of the upland so as to have become a common right, and thus the common law of the State.

“ The same reasons which underlie the decision in the Brookhaven case as to the rights of littoral and riparian owners apply with even greater force to the right of the public to use the foreshore upon the margin of our tide waters for fishing, bathing and boating, to all of which the right of passage may be said to be a necessary incident. • Except in so far as the jus privatum of the crown has devolved upon littoral and riparian owners, that right now resides in the people in their sovereign capacity. This is the logical result of our decision in the Brookhaven case, and it is in harmony with the development of our history and the spirit of our institutions.”

This I take to be a deliberate formulation of the law of this State. This opinion was written by one of the judges who dissented in the Brookhaven case and was unanimously adopted as the opinion of the court. Its value as a deliberate statement of the fundamental rule of law is enhanced by the fact that the judge who wrote it also wrote the prevailing opinions in several of the important cases which are cited to establish an inconsistent doctrine. See Knickerbocker Ice Co. v. 42d Street R. R. Co., 176 N. Y. 408; Matter of City of New York, 168 id. 134. What is the jus privatum which in the words of the opinion has been abandoned to the proprietors of, the upland ? By the common law of England, the king held title and dominion to and over the sea, its arms, and over rivers where the tide ehhed and flowed, and the shore below high water mark. He had the title in his private capacity. It was a property right which he could convey and vest in others of his own private will, subject however to the jus publicum. This was the jus privatum. In Hale’s De Juris Hare, chapter 4, the private rights .are specified as the right of fishing, although he says that this is only a primary right, for the common people have regularly a liberty of fishing as a public common of piscary, the shore between ordinary high and low water marks, the increase per alluvionem, per relictionem, and per insulce produdionem. The king also had the dominion which he held in trust for the people for the purposes of navigation and access for other purposes. As he was a constitutional monarch, he could control or limit the public use only through laws passed by Parliament. This was the jus publicum. Shively v. Bowlby, 152 U. S. 11. People v. New York & Staten Island Ferry Co., 68 N. Y. 71; Commonwealth v. Roxbury, 75 Mass. 451; note to Goff v. Cougle, 42 L. R. A. 161. The Barnes case decides that the common law of England as to the ownership by the sovereign of the jus privatum never obtained in the province which became the State of Hew York; but that the jus privatum, which I understand to be the complete title, subject to the rights of the public, was abandoned to the owners of the upland. And this abandonment was the result of common usage “ so as to become a common right, and thus the common law of the State.” So Hale says that the subject may by custom, usage or prescription have the true propriety and interest of many of these several maritime interests. Whatever may be the definition of jus privatum, it is certain that the ownership of the soil between high and low water marks is included in that term.

The following cases with others have been cited as establishing a different rule: Mayor v. Hart, 95 N. Y. 443; Sage v. Mayor, 154 id. 61; Matter of City of New York, 168 id. 134; Knickerbocker Ice Co. v. 42d Street, etc., R. R. Co., 176 id. 408. But these cases concern questions growing out of the Dongan and Montgomerie charters. These charters were granted to- encourage the development of an important and growing commercial town. All the rights conferred by them, including the grants of the foreshore and land under water, had direct relation to the jus publicum,, viz., the development of commercial navigation. The preservation of the paramount jus publicum required that these grants should be construed as conveying the title exclusive of the jus privatum in the owners of the adjacent uplands. It is claimed that the rule that the jus privatum is owned by the "adj aeent proprietors is inconsistent with the continued grants of land under water by the State. But these grants were eo nomine made for the benefit of commerce and they could be made only to the owners of the adjacent land, thereby recognizing by this right of pre-emption the interest of the owners in the foreshore and land under water.

The Horwood patent, granted under the proprietary government of the Duke of York before Hew York became a crown colony, was bounded to the east by the “ waterside.” J.f I am right as to the rule laid down in the Barnes case, the jus privatum in the foreshore was vested in Horwood even if the word “ waterside ” meant high water mark. The jus publicum remained in the Duke of York as proprietor, passed to the crown on his accession, and finally to the State of Hew York by the Revolution. The public, therefore, had the right to use the foreshore for fishing, bathing, boating and navigation.

If the jus publicum is released or extinguished over any portion of the foreshore, it follows that all the rights which, combined, constitute- a fee are quoad hoc vested in the owner of the adjacent upland.

In 1811 the upland at the point in question was vested in Cornelius Vanderbilt by mesne conveyances from Horwood, some of which bounded the tract on the east in terms by “low water mark.” On June fourth of that year, Vanderbilt gave notice that he intended to apply to the Commissioners of the Land Office for a grant of land under water extending 500 feet from low water opposite to and adjoining' the said land owned by him, The application, with the accompanying affidavits and the report of the Surveyor-General was referred to Martin Van Burén, Attorney-General, who reported in its favor. On April 16, 1818, the commissioners directed that letters patent issue to Vanderbilt for the land under water applied for and on the same day the patent was issued. This grant was made in the interest of commerce. It did not extinguish the jus publicum over the land granted but operated simply as a license to erect wharves and piers thereon so that they should not be per se a nuisance, i. e., a trespass on the jus publicum. The grant was subordinate to the paramount rights of the public, i. e., the jus publicum. People v. New York & Staten Island Ferry Co., 68 N. Y. 71.

The jus publicum is vested in the people of the State for the public use. It is subject to control and regulation by the Legislature. Although the grant of 1818 did not authorize Vanderbilt to fill in and so extinguish the jus publicum as to the land so granted, there can be no doubt that he acquired such right by the laws establishing new bulkhead lines. Laws of 1857, chap. 763; Laws of 1878, chap. 88. In the act of 1857 the bulkhead line is called the line of solid filling.” The act of 1878 provides, section 2, “It shall he lawful for the owners of * * * land under water granted by the State of Mew York, on the Staten Island side of the harbor of Mew York, to extend or construct piers or bulkheads to the exterior lines, of piers and bulkheads repectively fixed and established by this act.” See also Laws of 1895, chap. 898. The bulkhead lines so established are far outside the location of the land affected by this section, and the land has been filled in as permitted by the acts. The effect of these acts, followed by the filling in, was to relieve the ownership of the land under water so filled in from any public use. As to it the jus publicum was extinguished. Williams v. Mayor, 105 N. Y. 419.

If there were any doubt that the title to the foreshore, subject to the right of the public, was vested in Vanderbilt under the doctrine of the Barnes case, the same result is reached by the practical construction of the parties of the meaning of the term waterside.” The term had no technical meaning. It was ambiguous as applied to tbe locus in quo, for the physical waterside was shifting daily. The doctrine that grants by the sovereign are strictly construed is applied only to their effect on public rights. So far as the jus privatum is concerned, I see no reason for applying this rule of construction; for, even if the grant extended to low water mark, it was as to the foreshore subject to the jus publicum. Both Vanderbilt and the Commissioners of the Land Office have construed the grant as extending to low water mark. The commissioners had power to bound their grant on high water mark if they considered that Vanderbilt’s title there ended. It is inconceivable that they should have intended to reserve the title between the uncertain lines of high and low water mark, for it was useless for public purposes. Their acts amount to a practical delimitation of the boundaries between the lands of Vanderbilt and those of the State. The same practical construction has obtained as to other tracts in the same general location. This construction of the meaning of the term waterside ” is also shown by the fact that the foreshore has been assessed and taxed against Vanderbilt and his grantees; and, finally, by the creation by the State of the village of Edgewater and the inclusion of the land in question within its boundaries. Batchel v. Village of Edgewater, 45 Hun, 240; Laws of 1806, chap. 214.

The jus publicum or the .right of the public is a right of access to the water for the purpose of navigation, boating, bathing and fishing. Matter of City of Hew York, 168 N. Y. 134. By granting the land under water and authorizing solid filling to the bulkhead, this right, in so far as its exercise requires use of the foreshore, is necessarily extinguished. The land which was the tideway is now a narrow slip of land far inland. It is useless for any of the public purposes included in the jus publicum.

This condition has been created by acts of the Legislature and of the Commissioners of the Land Office, duly authorized by law. The State, therefore, in the interest of commerce, has extinguished the jus publicum over the land in question, and the title in the plaintiff is not burdened by any public use. It is, therefore, a marketable title.

In this view of the case, it is not necessary to determine whether the locus in quo embraces any portion of the former tideway. As a matter of fact, the evidence shows that the location of the foreshore, as it existed in 1818 or before the land was filled in, is no longer possible. ¡Neither is it necessary to consider the Statute of Limitations.

Judgment for the plaintiff with costs. Submit findings and decree on or before February twenty-fourth.

Judgment for plaintiff, with costs.  