Opinion of the Court.

the harbor also. The boundary by the sound includes all the land south of the Sound. That this was intended is indicated by the use of the words in the grant, harbor, havens,' etc. That Northport harbor was included within the limits of the boundaries was proved by the undisputed evidence of the surveyor and others. It was also proved that Eaton's Neck Beach was leased by the town. It should also be noticed that Northport harbor is land-locked, and has always been used and distinguished as a harbor."

Each of these three cases from the highest court of the State of New York treats that which is named as the boundary on the north or south, the Sound or the ocean, as referring directly to the body of water known by such name, and not as including waters opening into or connected with it.

Further, there is independent testimony tending to show that this Huntington Bay was called indiscriminately “bay” or "harbor" at the time of the original grant. Thus, in the grant made by Governor Nicolls, on June 22, 1667, of Eaton's Neck to George Baldwin, the description is "a Certain Parcell or Neck of Land Commonly called Eaton's Neck lying and being in the East Riding of Yorkshire upon Long Island on the North side of the said Island to the East of Huntington Bay where striking out into the Sound it is thereby bounded to the North East and South and on ye West with Huntington Harbour;" and in a conveyance of the same land made by Baldwin, on July 11, 1668, the description is “neck of Land commonly Called and known by the name of Easton Neck lying on the East side of Huntington Harbour bounded as is Specified in the patent granted for that Neck of Land." There is also other testimony to the effect that this body of water has been known as "Huntington Bay" as far back as any memory extends, or any records are found; and whether bay or harbor, it was a distinct body of water, always so known and called.

No question exists as to the validity of these ancient grants, or that they were broad enough to include oyster rights in the waters within them. The subsequent legislation of the colony and the State affirms their validity. Thus, on May 6, 1691,

Opinion of the Court.

the colonial legislature passed an act, entitled "An Act for Settling, Quieting and Confirming unto the Cities, Towns, Manors, and Freeholders within this Province their several Grants Patents and Rights respectively." The first section enacted:

"That all the Charters, Patents and Grants, made, given, and granted, and well and truly executed under the Seal of this Province, constituted and authorized by their late and present Majesties, the Kings of England, and registered in the Secretary's office, unto the several and respective Corporations or Bodies Politick of the Cities, Towns, and Manors, and also to the several and respective freeholders within this Province, are and shall forever be deemed, esteemed, and reputed good and effectual Charters, Patents, and Grants authentick in the Law, against their Majesties, Their Heirs, and Successors, forever." And in the second section it was provided:

"And be it further Enacted by the Authority aforesaid, That all the Charters, Patents, and Grants made, given, and granted, as aforesaid unto all and every the several and respective Corporations or Bodies Politick of the Cities, Towns, and Manors, and their successors, and also unto all and every the respective Freeholders, their Heirs and Assigns, forever, within this Province, are, to all Intents and Purposes whatsoever, hereby ratified and confirmed."

Section 36 of the first constitution of the State of New York contained this provision:

"And be it further ordained: That all grants of land within this State, made by the King of Great Britain, or persons acting under his authority, after the fourteenth day of October, 1775, shall be null and void; but that nothing in the Constitution contained shall be construed to affect any grants of land, within this State, made by the authority of the said King, or his predecessors, or to annul any charters to bodies politic by him, or them, or any of them, made prior to that date."

A similar one is found in section 18 of article 1 of the constitution of 1846. See upon this question of validity, in addition to the authorities heretofore quoted, People v. Van Rensselaer, 9 N. Y. 291, 346.

Opinion of the Court.

Again, it is worthy of note that that fact is apparent from the testimony in this case, which was noticed by the Court of Appeals as significant in the case of Brookhaven v. Strong, 60 N. Y. 56, 71, to wit, a long-continued exercise and control over these submerged lands on the part of the town. Several entries taken from the records of the proceedings of the town were offered in evidence. One, dated June 1, 1795, is as follows: "Whereas sundry persons are making a practice of taking and carrying away clams and oysters from the harbors on the north side of the town of Huntington, for the prevention of which be it enacted and ordained by the trustees of the freeholders and commonalty of the town of Huntington, and it is hereby enacted and ordained by the authority of the same, that if any person or persons, after the 10th day of June, 1795, shall take and carry away out of any of the harbors of the north side of the township of Huntington any clams or oysters he or they, or any of them so offending, shall forfeit the sum of 40s. for every offence contrary to the true intent and meaning of this act, and shall be prosecuted," etc.; one substantially similar, of date June 20, 1796. Subsequently, in 1803, 1810, 1818, 1823, 1828, 1833, 1838, 1844, and 1849, by-laws were passed, aimed with more or less directness of expression at restraint upon the "fishing, clamming, oystering," catching oysters, clams, and fish in the waters of the town of Huntington. It is not meant by this to imply that any of these by-laws specifically named Huntington Bay as a part of the waters belonging to the town of Huntington; all that is meant to suggest is that there was during those years a continued assertion of the right on the part of the town to control the catching of oysters in the waters of the town. Obviously, the planting of oysters was not then a matter much thought of, but from 1855 the occupation of the submerged lands for the purpose of the cultivation of the oyster seems to have attracted the attention of the town authorities. Thus, on April 3, 1855, at a town meeting, this resolution was passed:

Resolved, That all persons be prohibited from putting down stakes in any of the harbors of the town of Huntington to Park the lines of the oyster beds that will in any way obstruct shing with nets, under the penalty of $12.50."

Opinion of the Court.

On April 7, 1857, at a town meeting, the trustees were authorized "to make rules and regulations for the planting of oysters, receive applications, and grant permissions to the inhabitants" of the town for planting oysters. On April 4, 1871, the town record contains this recital:

"At a town meeting, resolved that the trustees of this town be authorized, empowered, and directed to lease the lands immediately suitable for oyster beds in the bays and harbors belonging under the waters of the town of Huntington. Before doing so they shall take proper counsel therein as to the best and safest manner of leasing said grounds. None but residents have the privilege to said lease, and those residents having oysters already planted be entitled to the first privilege, and the trustees be required to give public notice for two weeks before adopting the resolution for the terms and manner of leasing."

And in the town records are found, subsequently to these entries, by-laws and resolutions of a similar import.

Still further, on May 10, 1888, c. 279, the legislature of New York passed an act which is as follows:

"SECTION 1. All the right, title, and interest which the people of the State of New York have, if any, in and to the lands outside of and beyond low-water mark under the waters of Huntington Bay, in the town of Huntington, Suffolk County, southerly of a line drawn from a granite monument now set near high-water mark on the northernly point of Eaton's Neck, and west of the United States Life Saving Station to a locust monument now set on Lloyd's Neck, which line runs on a course south fifty-nine degrees, twenty minutes and twenty-five seconds west, and which is the line claimed by the trustees of the town of Huntington as the northerly line of their grants under colonial patents, is hereby ceded to the present trustees of the town of Huntington, Suffolk County, and their successors in office, for the purpose of oyster cultivation. Provided, nothing in this act shall be held to interfere with the rights and powers of the commissioners of the land office to grant all the right, title, and interest of the State to lands under water in said bay, to the owners of

Opinion of the Court.

adjacent uplands for purposes of commerce or beneficial enjoyment, and nothing herein contained shall be construed as interfering with the rights of riparian owners. Subject, however, and without prejudice to the legal rights, if any, of such persons as now have oysters planted on the lands aforesaid." (Laws of New York, 111th Session, 1888, p. 494.)

In respect to this cession the Court of Appeals in People v. Lowndes, 130 N. Y. 455, 461, said: "If the locus in quo was not within the colonial patent or grant, it was the property of the State, and passed to the trustees of the town of Huntington by the legislative act of cession of May, preceding the time of the alleged offence." That was a case in which the defendant was prosecuted for a violation of section 441 of the Penal Code of the State of New York, which is as follows: "A person who, not being at the time an actual inhabitant and resident of this State, plants oysters in the waters of this State, without the consent of the owner of the same, or of the shore, or gathers oysters or other shellfish from their beds of natural growth, in any such waters on his own account, or for his own benefit, or the benefit of a non-resident employer, is guilty of a misdemeanor, punishable by imprisonment not exceeding six months, or by a fine not exceeding one hundred dollars, or both;" and the place at which the offence was charged to have been committed was in Huntington Bay. That case was, however, decided on the question of the sufficiency of the indictment, and perhaps, therefore, the quotation may be considered as simply dictum, but whether dictum or not, we think it is correct. Either the title to these submerged lands passed by virtue of the colonial grants to the town of Huntington, or else it was in the State of New York, Martin v. Waddell, 16 Pet. 367; Pollard v. Hagan, 3 How. 212; Shively v. Bowlby, 152 U. S. 1, and this act, whose validity seems not to be questioned, cedes all the right, title, and interest of the State in these lands to the town, so far at least as is necessary for the purpose of oyster cultivation.

It is clearly exclusive in its scope. of its terms. Even if the language

Such is the plain import were less clear, reliance