
    Kernochan et al. v. New York El. R. Co. et al.
    
    
      (Superior Court of New York City, Special Term.
    
    February 3, 1890.)
    Conflict of Laws—Dutch Occupation of New Yoke.
    The city of New York, though, occupied by the Dutch, was always English territory; and hence the “Bowery, ” a street alleged to have been dedicated during the Dutch occupancy, is governed by the rules of the common law, and not by the civil law, as to the rights of abutting owners.
    Action by James P. Kernochan and others against the New York Elevated Bailroad Company and the Manhattan Bail way Company, to recover for injuries done to plaintiffs’ land by the construction and operation of an elevated railroad in the adjacent street. '
    
      G. W. Van Nest, for plaintiffs. Davies & Rapallo, for defendants.
   Truax, J.

Since the cases of Mortimer v. Elevated S. Co., 6 N. Y. Supp. 898, and Riñe v. Same, 7 N. Y. Supp. 464, were decided, I have come across some authoritative showing that, from the very commencement of the settlement of this country by the Dutch, the English claimed that the Dutch were interlopers, and that the country belonged to the crown of England. Nearly all of the following statements are taken from the volume of Colonial Papers (Calendar of State Papers) from 1574-1660. On the 10th of April, in the year 1606, a grant was issued to Sir Thomas Gates, Sir George Somers, Biehard Hakluyt, Edward Maria Wingfield, Thomas Hamon, Baleigh Gilbert, William Parker, George Popham, and others, of Virginia, between 34 and 45 deg. of north latitude, to be divided into two several colonies. See Colonial Papers (Calendar of State Papers) 1574-1660, p. 5. On the 9th of March, 1607, an ordinance was passed enlarging the number and augmenting the authority of the council of the two several colonies and plantations of Virginia in America, appointing 30 members for the first colony, from 34 to 41 deg. north latitude, and 10 members for the second colony, between 38 and 45 deg. north latitude. This is the grant referred to by Bancroft. On the 5th day of February, 1622, Sir Dudley Carleton, ambassador at the Hague, wrote to the privy council a letter in which he stated that he had received their letters of the 15th of December last, touching the Hollanders’ entering a year since, and planting a colony upon, some parts of the north of Virginia. He further says that lie has moved the states general to stay any ships bound thither, and to prohibit the further prosecution of that plantation. He finds that about four or five years ago two companies of Amsterdam merchants began to trade with the savages for furs in those parts, which they named New Netherlands, and have continued to do so ever since. He does not believe that there is so much as a colony intended, because a considerable number of families have been .suitors to him to procure a place of habitation among the king’s subjects there. This probably refers to the fact that some time in the year 1621 certain Walloons and French wrote to the ambassador of the king of Great Britain, requesting permission to go to Virginia and settle there. I say some time in 1621, because on the 11th of August, 1621, the Virginia Company, in answer to the request of the Walloons and French to plant in Virginia, said that they did not conceive any inconvenience, provided the number did not exceed 300, and provided they took the oath of allegiance to the king, and promised to conform to the rules of government established in the Church of England. On such condition, land, they said, would be granted to them in convenient numbers, in the principal cities, boroughs, and corporations in Virginia. On the 30th of January, 1622, Sir Dudley Cavleton presented a representation to the states general of the United Provinces, in which he protested, in the king’s name, against the occupation by the Dutch of certain parts of Virginia, against their changing the names of ports and havens, and against their dispatching six or eight vessels thence, now ready to sail, to keep up their colony. In this representation he set forth in full the title of King James to all tliis territory. (These papers may be found among the Holland correspondence.) This representation was madepursuant to a letter from the privy council to Sir Dudley Oarleton on the 15th of December, 1621, in which attention was called to the fact that some time during the past year the Hollanders had left a colony in that part of the north of Virginia “by us called Hew England,” and requesting Oarleton to require them to discontinue the plantation and stay their ships. It is interesting to notice that as early as the 26th day of June, 1623,one Christopher Levett, oneof thecouncil.of Hew York, suggests the settling of a plantation in Hew England, and the building of a city there, to be called York; and the king, in answer to this suggestion, requests that he will, by fair persuasion, win assistance from the county in a work so honorable to the nation and to the city of York. See Calendar of State Papers, p. 47. Perhaps it was in deference to this suggestion, or following out this suggestion, that afterwards the Duke of York changed the name of Hew Amsterdam to Hew York. On the 2d of April, 1632, Oapt. John Mason wrote"to somebody, probably Secretary Coke, that certain Hollanders began a trade about 1621 upon the coast of Hew England- between Cape God and Delaware bay, in 40 deg. north latitude, granted to Sir Walter Baleigh in 1584, and afterwards confirmed and divided by agreement by King James, in 1606; that the plantations in Virginia had been settled about 40 years, and those in Hew England about 25 years; that the Hollanders came as interlopers between the two, and have published a map of the coast between Virginia and Cape Cod, wilh the title of Hew Hetherlands, calling the river upon which they are planted Manhattan, and giving Dutch names to other places discovered by the English; that Sir Samuel Argali, with many English planters, was about to settle in those parts, and that the English ambassador at the Hague was ordered to complain against the proceedings of the Hollanders; that nevertheless, the following year, under a pretended authority from the Dutch West India Company, they made a plantation upon Manhattan, have since fortified themselves in two places, and built ships there, one of 600 tons, which they have sent into Holland; that they were warned by the English plantation at Hew Plymouth neither to trade nor make any settlement in those parts, but with pride and contumacious answers they said “they had commission to fight against such as should disturb their settlement,” and persisted in planting, villifying the English to the Indians, and extolling their own nation; and that it is reported that they had exported from thence to Holland this year 15,000 beaver skins, besides other commodities.

On the 6th of June, 1632, a warrant was issued for the release of a Dutch ship, the Endraught, of Amsterdam, belonging to the West India Company, of Holland, which, coming from.the river Manhattan in Hew England, was stayed at Plymouth in the preceding February. The king, at the earnest request of the ambassador from the United Provinces, was pleased to release all the goods and merchandise in the ship, notwithstanding his majesty’s right to the territories whence they came, but declares that, if the Dutch remain there without his license, they shall impute it to themselves if hereafter they suffer. In April, 1624, the Count de Tillieres, French ambassador in England, sent a memorial, probably to Secretary Conway. An abstract of this •memorial, and the answer thereto, may be found in the volume above referred to, at page 61. In the answer to this memorial, the undertakers for the plantation of New England say that they are surprised that the subjects of the king of France should have any doubt upon or should dispute the extent of their patent between 40 and 48 deg., which has so long been recognized by both nations. They recite the discoveries by Sebastian Cabot, the letters patent to Sir Humphrey Gilbert, Sir Walter Raleigh, and King James’ charter for the establishment of two colonies in those parts. It is argued that the pretensions of the French can only date from the discoveries made by Jacques de Cartier, and the foundation of a plantation at a place called Tadousac by Champlain. Sir William Alexander’s patent is also quoted.

The learned librarian of the Lenox Library, George H. Moore, LL.D., called my attention to the two following volumes, now in that library, the title of which I give in full.

1 think that in the Jersey case for the first time in a court of law was presented the question that has lately been presented in the Elevated Railroad Cases above referred to. “A Bill in the Chancery of New Jersey at the suit of John, Earl of Stair, and others, Proprietors of the Eastern Division of New Jersey against Benjamin Bond and some other persons of Elizabeth Town, distinguished by the name of the Clinker Lot Right Men. * * * Printed by James Parker, in New' York 1747. Addressed to His Excellency, Lewis Morris Esq.: Captain General and Governor in Chief of the province of New Jersey.” On page4 it is said: “That Capt. Henry Hudson, an Englishman, discovered Hudson’s River in or about the year 1608, the mouth thereof being in the Latitude of 40 20' North Latitude; the same mouth and a considerable part of the River, does lie within the Limits of both the Corporations aforesaid; and he the said Hudson without License of the King of England, sold his Discovery to the Dutch; under colour of which, the Dutch West India Company made some settlement on Hudson’s River aforesaid. That Sir Samuel Argal, Governor for the South Virginia Company, discovering the Dutch to be settled on Hudson’s River, within the Limits of Letters Patents to the South Virginia Company, did drive the Dutch out of those settlements, in or about the year 1618, as by the said Book called the British Empire, pages 117, 235; Ogelby’s America, printed in 1671, page 168 appears. That the Dutch West India Company, in or about the year 1620, upon application to King James the First of England, obtained Leave of him to build some Cottages upon Hudson’s River, for the Convenience of their ships touching there for Fresh Water and Provisions in their Voyage to Brazil.” The second case is: “The Case of the Provinces of Massachusetts Bay andNew York, respecting the Boundary Line between the two provinces. Boston, 1764. Printed by Green & Russell. The Title of the Massachusetts Bay to certain lands claimed by the Province of New York. The right of the Crown of England to the Northern Continent of America, is universally known to be founded upon the discovery of it, made by the Cabots in 1597.” Page 11. “To the third: That the Dutch Gouvernor surrendered all that he was possessed of is allowed, but that he was possessed of any Part of the Lands claimed by the Massachusetts is denied. What he surrendered was also restored rather than ceded by the Treaty of Breda, and afterwards by the Treaty of London.” Page 5. “The Massachusetts say, that one Henry Hudson an Englishman, made several Voyages under a Commission from King James, in the Employ of certain Merchants for the Discovery of a Northwest Passage upon some misunderstanding, engaged in the year 1609 in Dutch Employ upon the same design, and upon his Return ranged along the Sea Coast, which three years before had been granted by King James to English Subjects, and entered Hudson’s River giving it his own name, and sailed up in his Boat as far as what has been since called. Aurania or Albany. It does not appear that he had a Dutchman on Board. His mate was Robert Ivet an Englishman.” Page 3.

The earliest authority that I have been able to find for the statement that Sir Samuel Argali visited the Dutch on Manhattan island is in a book publisiied in 1648, and which purports to have been written by Beauchamp Plantagenet.

Judgment is ordered for the plaintiff.  