
    Lillius Grace, Appellant, v. Town of North Hempstead, Respondent.
    Second Department,
    February 26, 1915.
    Real property—title to lands under waters of Manhasset bay — title in town of North Hempstead — subsequent grant by State invalid — private ownership of navigable waters under civil law.
    The town of North Hempstead, as successor to the original town of Hempstead, owns the waters and bed of Manhasset bay on the north shore of Long Island by virtue of a grant made by the Dutch Governor Willem Kieft in-1644 and the later grant by Col. Dongan, the English colonial Governor in 1685.
    Hence, a subsequent grant of lands under said waters, made from the State by the Commissioners of the Land Office on June 34,1913, to Lillius Grace, is void as the State had no title to convey.
    The words “Sound or East river,” as used in the Dongan patent of 1685, mean Long Island Sound.
    
      It seems, that the Roman-Dutch law as existing and practiced at the Netherlands in 1644 recognized that lands under the navigable waters of bays and rivers could be granted to individuals and corporations.
    Appeal by the plaintiff, Lillius Grace, from a judgment of the Supreme Court in favor of the defendant, entered in the . office of the clerk of the county of Kings on the 7th day of May, 1914, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 6th day of May, 1914, denying plaintiff’s motion for a new trial made upon the minutes.
    
      Henry A. Uterhart [David Provost with him on the brief], for the appellant.
    
      M. Linn Bruce, for the respondent.
   Putnam, J.:

This is a proceeding to determine the title to the land beneath the waters of Manhasset bay, formerly called Cow bay, a narrow harbor on the north shore of Long Island. It lies between Great neck and Manhasset neck (formerly Cow neck) and is entered between Hewlett point on Great neck, and Barker point on Manhasset neck. It is a mile wide at the entrance, and runs inland upwards of three miles. The position with reference to the neighboring necks and bays is shown on this diagram:

On the easterly side, Plum "point, extending out to the south, forms a sheltered tidal harbor sometimes called Plum harbor, often resorted to by small vessels from the sound. The bay is also a natural ground for the growth of shell fish.

Plaintiff’s lands are along the westerly side of Manhasset bay, about a mile and a half from the sound. This action involves the title to about seven acres fronting on plaintiff’s upland, and out in the bay beyond the mean low-water line.

Plaintiff relies on a State grant by the Commissioners of the Land Office, made June 24,1912. Defendant, as successor to the original town of Hempstead, from which North Hempstead was set off by chapter 21 of the Laws of 1784 (North Hempstead v. Hempstead, 2 Wend. 112), claims to own the waters and bed of this bay by Colonial grants; first from the Dutch Governor Willem Kieft in 1644, and later from Ool. Dongan, the English Colonial Governor, in 1685.

Both sides having moved for direction of a verdict, the court granted defendant’s motion and directed a verdict in its favor.

The Dongan patent or charter of April 17, 1685, confirmed to the “pattentees and their associates, their heires, succeesors and assignes all the privilidges and immunityes belonging to a Towne within this Government.” It thus described the grant:

‘ ‘ Whereas there is a Certaine Towne in Queens County called and knowne by the name of Hempstead upon Long Island, situate, lyeing and being on the South side of the Greate Plaines haveing a certaine tract of land thereunto belonging, the bounds whereof begin att a marked tree standing att the head of Mattagarretts Bay and soe runing from thence upon a direct South line due South to the Maine sea, and from the said tree a direct North line to the Sound or East River and soe round the points of the necks till it comes to Hempstead Harbour, and soe up the harbour to a certaine barr or sandy beach, and from thence up a direct line till it comes to a marked tree on the east side of Cantiagge Point, and from thence a southerly line to the middle of the plaines, and from thence a due east line to the utmost extent of the Greate Plaines, and from thence upon a streight line to a certaine tree marked in a neck called Maskachoung, and soe from-thence upon a due south line to the South Sea and the said South Sea is to be the South Bounds from the East line to the West line, and the Sound or East River to be the Northerly Bounds as according to several deeds or purchases from the Indian owners and the Patient from the Dutch Govemour, William Kieft Relacon thereto being had doth more fully and att large appeare.”

The patent also granted and confirmed unto the patentees all the before recited tract and tracts, parcell and parcells of Land and Islands within the said bounds and Limitts, togather with all and singular the woods, underwoods, plaines, meadows, pastures, quarryes, marshes, waters, lakes, causewayes, rivers, beaches, ffishing, hawking, hunting and fowleing, with all libertyes privilidges, hereditaments, and appurtenances to the said tract of land and premissess belonging or in any wise appurteineing.” (Book of Patents, Secy. State, vol. 5, pp. 182-185.) From tin's grant was also especially excepted one entire piece of land containing 700 acres, lying and being on Cow neck.

As both the boundary meridian lines run from the sound or East river to the Atlantic ocean, and this bay lies between such meridians, the remaining question is, what is the north boundary of this patent ? Here again the import is not doubtful. The sound or East river means the Long Island sound, and the course “round the points of the necks till it comes to Hempstead Harbour, ” plainly means a boundary run around the outer points or headlands of Great neck and Cow neck, by which this bay is plainly comprised. All doubt is removed by the final words, “ and the Sound or East River to be the Northerly Bounds.” (Tiffany v. Town of Oyster Bay, 209 N. Y. 1, 7.) And clearly the patent carried title to the land under water within the bounds of the patent. (Roe v. Strong, 107 N. Y. 350, 358.)

Appellant, however, contends that this patent was only to ratify and confirm the patent granted on November 16,1644, by Governor Kieft, and that this earlier grant did not include, or should not have included, these waters. The learned counsel suggests that this English exhibit, purporting to be a certified copy of the Kieft patent, must be regarded as a mistranslation of an original Latin text, now lost, since other contemporary patents were in Latin. This Kieft patent is certified as recorded from an original, although the New York State records have a volume which professes to record translations. George Baxter, whose name as secretary is at the foot, is well known in our Colonial history. He acted as English secretary in dealings with other colonies, and was custodian of charter protocols and records of the Hempstead, Gravesend and Flushing patents. The Kieft patent gives the “Patentees, their Associates, heires and Successors, full Power and Authority, to Erect a Body Pollitique, or Oivill Combinaton amongst themselves, and to nominate certaine Magistrates,” etc., showing an intent to create a town with municipal powers. It also provides for a town court, in which the magistrates shall sit with civil and criminal powers. (See Book of Deeds, Secty. State, No. 3, p. 101; Laws of New Netherland, p. 43.) It is said that this Hempstead court was the first town court established in New Netherland. (Laws of New Nether-land, preface, p. ix.) The charter grants: “A certaine quantity of Land, with all the Havens, Harbors, Rivers, Oreekes, Woodland, Marshes, and all other Appurtenances there unto belonging, lying and being upon, and about a certaine place, called the Great Plaines on Long Island, from the East River, to the South Sea, and from a certaine Harbor, now commonly called and knowne by Ye name of Hempsteed Bay, and so westward as farr as Mathew Garritsons Bay, to begin at the head of the said two Bayes, and so to run in direct Lines, that there may bee the same Latitude in breath on the South side, as on the North.” This instrument was formally recorded on March 6, 1666, after the English conquest (See Book of Deeds, Secty. State, No.' 3, p. 100; Laws of New Netherland, p. 42), and its genuineness and authenticity have never before been questioned. Its inclusion of these inlets is shown by the comprehensive terms “from the East River to the South Sea.” Counsel, however, queries whether the original Latin text did include harbors, rivers, and other expressions ceding control and rights over waters, on the ground that the Roman-Dutch law recognized such water rights as common to all and not subject to private appropriation. Thus the power to grant what is clearly given by this colonial charter is for the first time questioned. A legal theory is urged that by the law and usage of the Netherlands, the parent country, this charter was ultra vires, so far as it included harbors and havens. We are asked to find the law which the Dutch accepted and practiced at the critical date of 1644, when the colonial authorities made this grant. Counsel refers us to texts of the Institutes, and of a Dutch commentator, to the effect that the sea, the air, also the sand and shore of the sea are res communes ‘1 so that according to the law of nations everyone is at liberty to navigate, fish in, and use the same at his pleasure, without, however, injuring another.” (Van Loeuwen, Com. on Roman-Dutch Law [1664], Kotze trans., vol. 1, p. 150 [London, 1881].)

This generalization of the public right to the sea and its shores, and especially general rights to fish, was one of the broadest doctrines of the Roman law.

The subject falls under two heads; the right to fish, and whether rivers, harbors and portions of the sea were then regarded as alienable, and subject to exclusive occupancy. As to the right to fish, the practice before Justinian of treating it as a jus publicum did not long continue. In the “Introduction to Dutch jurisprudence,” published in 1631, a work which had eight editions before 1644, Grotius says the United States of Holland and West Friesland are proprietors of the rivers such as the Rhine, the Waal, the Haas, the Ijsel and the Lek, in so far as they flow within the limits of Holland, also of the lakes and other navigable waters and of the beds of all such streams and waters, together with the shores or banks of the same covered with water. Here follows an admission that the State, however, did then grant exclusive proprietary rights in its rivers to private individuals. The right of fishing in such streams has since times of old belonged to the State, and has been granted to the Counts for their maintenance, by whom it has been granted to many vassals and others.” (Book H, chap. 1, § 27 [Eng. trans. p. 44].)

Vinnius, in the commentary on the Institutes, written from Leyden in 1642, strikingly traces this change from public to private ownership. “The jus piscandi,” he says, “in the beginning belonged to the people. Thence it passed to the Princes, and now no one may have the right, except by their leave, and within certain laws and limitations.” (Com. Inst. Imp. Lib. II, tit. 1, § 2, ed. 1709, p. 127.)

The Flemish and Dutch municipalities or “communes” gradually recovered for their inhabitants some of the oppressive rights and revenues before appropriated by the nobles. Among such sources of municipal income wrested from the perquisites of the lords was the privilege to fish in the canals — a right made common in certain of the stronger towns more than a century before the Dutch West India Company had been formed. (Blok, Hist, of the People of the Netherlands, vol. 1, p. 226 [N. Y. 1898].) This right to fish was specially secured in the early charters of Amsterdam. (Van Loeuwen, vol. 1, p. 164, note.)

Proprietary ownership of waters by Dutch law is also plain. Dutch law did not deny that local waters could be occupied and hence were alienable. Rivers and their beds were thus subject to proprietary rights. So Vinnius shows that the ownership of newly-formed islands in rivers is incident to, and derived from, the ownership of the bed. (Com. lib. 2, tit. 1, 4.)

) Grotius, writing in 1625, qualifies such ownership of river beds, limiting it to rivers relatively small, as compared with the extent of the bordering lands. (De Jure Belli ac Pacis, Lib. II, cap. III, § 7.) But he passes on from rivers to bays and estuaries, which he shows were included in private estates. From these illustrations he reasons that larger portions of the sea may be so owned, saying: “ Since a portion of the sea may become part of a private estate, namely if it be included in the estate and is so small as to seem a part of it, and since that is not repugnant to natural law, why should not a portion of the sea included within the territory of a people or of several peoples, be the property of those whose the shores are, provided that the size of that portion of the sea compared with the ter' ritory be not larger than the inlet of the sea, as compared with the estate.” (Lib. II, cap. IH, § x.2.) Therefore, under the Roman-Dutch law as recognized and practiced in the Netherlands at 1644, we find nothing against the grant of ports and havens in this charter to the newly-formed town of Hempstead.

Furthermore, an attraction possessed by Long Island for settlers, and one that drew colonists from New England, was the shellfish abounding in its bays and inlets. Naturally such settlers would seek to have the grants to them include the waters containing such a source of food supply. Such a grant to found a body politic or town, as we have seen, would involve no violation of Dutch law and custom, and would be the only effectual way to protect the natural shellfish 'beds from alien depredations. Therefore, on the internal evidence from the wording and form of these patents, and from the extrinsic facts as to the situation of the colony, we would not be justified in deleting from the scope of this charter this received and settled formula for the cession of ports, harbors and inland waters.

The conclusion that these patents embraced the waters of Manhasset bay was also the ground upon which the Commissioners of the Land Office were advised by Attorney-General Tabor in 1890, acting with the State Engineer and Surveyor, to deny an application for these lands underwater, by this same appellant, since the Attorney-General there held that the town had made sufficient proof of its title through these colonial grants. (See Proc. Comrs. Land Office [1890], 42-51, 70, 88.) Such an opinion, though administrative, binds the departments, and is entitled to weight as proceeding from the law officer of the State. (People ex rel. Snyder v. Hylan, 212 N. Y. 236, 240.)

Appellant cites Town of North Hempstead v. Eldridge (111 App. Div. 789), but this dealt with lands under Little Neck bay, which the learned referee found were outside of, and to the westward of these boundaries. He did not pass on the northern bounds of these patents, as he stated (p. 796): “As to these northern limits no controversy had arisen or seemed likely, to arise. ”

In 1669, before the Dongan patent, Hempstead, at a general town meeting, voted that the north boundary of their patent was the sound. Since 1686 the town had taken control over the waters and the shores of these harbors. It has passed regulations over fishing, as well as touching the building and maintenance of docks, which powers and authority it has continued actively to exercise up to the present time. This long usage constitutes the best exposition of the grant. (Trustees of Brookhaven v. Strong, 60 N. Y. 56, 72.) Hence it must be held, as in Tiffany v. Town of Oyster Bay (supra), that the State had not title to the property which it assumed to grant to this plaintiff.

I advise, therefore, that the judgment and order be affirmed with costs.

Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.

Judgment and order affirmed, with costs. 
      
       On December 11, 1643, Baxter had been appointed English secretary to Director Kieft, because, in Kieft’s words, “we have great need of a person who can write English and has some experience in law cases." (Doc. rel. to Col. Hist. N. Y. [by Fernow], Vol. XIV, O. S. p. 41.) After Stuyvesant became director, he made an order on February 10, 1654, that the court messenger demand from Ensign George Baxter copies of the correspondence with Hew England and Virginia “ also especially the protocols or copies of the patents of the adjacent English Colonies of Heemstede, Vlissingen and Gravesend, which the said Baxter has in his deposit.” (Doc. rel. to Col. Hist. N. Y. Vol. XIV, O. S. p. 246.) The Flushing (Vlissingen) charter was also in English. (Laws of Hew Hetherland, p. 48.) Ensign Baxter, with Lady Moody, had been one of the Gravesend patentees, by Charter of December 19, 1645. This grant to Gravesend was in English throughout, and employed a formula like that in the patent to Hempstead, which was no doubt taken from that in the Royal Charter to Plymouth Council in 1620. (Gould on Waters, Vol. 1 [2d ed.], § 81, p. 73.) The Gravesend grant was together with “ye hauens, harbours, rivers, creeks, woodland, marshes, and all other appurtenances thereunto belonging." (O’Callaghan Doc. History of New York [Long Island], Vol. I, pp. 411, 412.) [The original Gravesend Patent is still preserved with the Kings County Commissioner of Records.] Thompson’s History of Long Island, Vol. II [2d ed.], p. 171, says that the Gravesend Charter was in “ both in Dutch and English," but the minute publication of all records since the date of Thompson’s history (1889-1843) seems to negative any original except this in English.
     