
    Rose v. Bunn et al.
    
    
      Fences.—Constriction of Lease.
    
    Under a lease, reserving the right of pasturage to the lessor, and providing that the lessees may cultivate such arable parts of the land, as they may elect, with liberty to take timber for fencing, hut subject to a proviso that the lands shall be left uninclosed from October to April, the duty of fencing against the lessor’s cattle is imposed upon the lessee.
    * Appeal from the general term of the Supreme Court,, in the second district, where judgment was entered in favor of the plaintiff, in a case tried by the court, without a jury.
    This was an action in the nature of a replevin for 320 sheep. The answer set up that the defendants took them as a distress, damage feasant. It was agreed, that the sheep came upon the locus in quo, by reason of a defect of fences, and the only question was, whether the defendants Avere bound to fence against the plaintiff’s sheep.
    On the 16th August 1703, certain Indian sachems of the Shinnecoek tribe, on behalf of themselves and their people, conveyed to the Trustees of the Toivn of Southampton, in fee, a considerable tract pf land, embracing the locus in quo; and by an instrument of even data, the Trustees of Southampton demised the premises to the Indian grantors, for a term of 1000 years, upon the conditions and provisos therein exyn’esscd, reserving the annual rent of one ear of Indian corn. This instrument dem'sed the premises in question, “ meadows, marshes, grass, herbage, feeding and pasturage, timber, stone, and convenient higlnvays only excepted; Avith all and singular the privileges and advantages of pknving and planting;, and timber for fixing and fencing, and all other conveniences aiid advantages AvliatsoeArer, excepting what before is excepted, to the only use and behoof of said Indians, their heirs and successors, &c. *Provided always, the sard Indians do not keep, nor cause to be kept, any part or parcel of the land within fence or inclosed, from the last day of October to the first of April, from year to year, during the whole time aforesaid.” The inhabitants of Southampton had always been in the habit of depasturing the hills included in the grant with cattle and sheep. During the season in which the plaintiff’s sheep were distrained, the Indians, for the first time in ten years, planted corn on the premises, in detached parcels, none of which were fenced.
    The judge before whom the case was tried ga've judgment'in favor of the plaintiff, which having been affirmed at general term, the defendants appealed to this court.
    
      Miller & Tuthill, for the appellants.
    
      Wickham, for the respondent. .
   Denio, J.

It is the most favorable position for the defendants, to assume that the lease of 1703 inured according to *its terms and obvious intention; to ,the use of the Shinnecock Indians, in perpetuity, or, at least, during the long term granted, as though they bore a corporate character which would authorize them to take and hold and as a6 tribe; and I shall accordingly so assume. It might be difficult, however, to maintain that they possessed such a capacity in respect to private grants and conveyances, if the case turned upon that question.

. The controversy" must,- therefore, depend upon the proper construction of the instrument given in evidence, and its legal effect. It contains general words of grant and demise of the whole of the premises contained within the boundaries specified; but these are greatly qualified by what follows. The meadows and marshes were excepted; and they' were proper subjects of ah exception, according to the technical rules referred to by the defendants’ counsel; and so with the timber, stone and highways. It is objected, that the “ grass, herbage, feeding and pasturage,” which are also excepted in terms, being the annual profits of the land, cannot be excepted or reserved to the grantees, such reservation being, as it is argued, repugnant to the grant; and, moreover, that being things not in existence at the time of the grant, they cannot be the subject of an exception. But, I am of opinion, that the restriction, whether it be called an exception or a reservation, is an effectual qualification of the grant, by which* the lessees, by accepting the deed, are bound. The right of the grantors, and those whom they represent, to enter with their cattle to depasture the land (assuming the general title to pass to the lessees) Was such a servitude or easement as may be legally created by the acceptance of a deed reserving such rights. (Hills v. Miller, 3 Paige 254; Child v. Chappell, 9 N. Y. 246, 253.) Besides, servitudes, or easements as they are now called, may be established by prescription; and it Avas shoAvn that the rights Avhich the deed professes to create in favor of the lessors, had been continually exercised by the inhabitauts of Southampton, for a great length of time. The evidence renders it probable that they had been, from the time of the execution of the lease.

Enough has been said, to sIioav that the plaintiff, as an ^"inhabitant of Southampton, had a 'right to turn his sheep upon the premises, and that he Avas not a trespasser in so doing. But, consistently Avith this privilege, the Indians had a right to ploAv and plant the arable parts of the land, provided they threAV doAvn their in closures in the autumn, and suffered them thus to remain until spring. The respective rights of the parties then Avere as folloAvs:—The plaintiff had the general right of pasturage upon the Avhole of the premises, during the Avhole year, subject to the defendants’ right to inclose and cultivate the arable portions, during seven months; these arable parts Avere the hill sides, Avhich seem to have been interspersed among the meadoA\rs, marshes, and pasture lands. It aauis for the lessees to elect Avhether they Avould cultivate, .and upon Avhat portion they Avould thus exercise their rights. This relative situation of the parties, points out very plainly avIio were to be at the trouble and expense of securing the crop against the .intrusions of the animals, Avhose oAvners had a general right to turn them upon the premises. The party Avhose right it Avas to .select the parts he wanted .cultivated, Avag tlje one Avhose duty it Avas to protect the portion so selected from the intrusion of the animals, A^ho, until such selection, .had a general right-to be upon every portion of the premises.

The case has no analogy to that of persons OAvning adjoining lands, .where, by the common law. each proprietor was obliged to keep his domestic animals on his own land, and Avhere, by the statute, the fences are to be divided. The provision .by which the Indians were alloAved to take fencing timber, and that by which they were forbidden to maintain inclosures during a part of the year, confirms the view I have taken of the case. I am satisfied, that the supreme court Avas right in holding that it was for the lessees to secure the portions of land Avhich they chose to cultivate, against the cattle of the lessors, lawfully be-upon the remainder of the premises, and that the taking of the plaintiff’s sheep, as a distress, cannot be sustained. The judgment must be affirmed.

Judgment affirmed.  