CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES,

AT

OCTOBER TERM, 1893.

LOWNDES v. HUNTINGTON.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NEW YORK.

No. 117. Argued December 18, 19, 1893. - Decided April 16, 1894.

The grant to the town of Huntington, made by the Governor General under the Duke of York, on the 30th of November, 1666, and confirmed by Governor General Dongan in 1688, and again confirmed, with a change in description, by Governor General Fletcher, in 1694, operated to convey to the grantee the lands under tide water in Huntington Bay, as defined by a line drawn from Lloyd's Neck to Eaton's Neck; and any title to such lands under water which came to the State of New York, was ceded to the trustees of the town by the State, by the act of its legisla ture of May 10, 1888, c. 279.

In reaching this conclusion this court follows the settled rules of decision in the courts of New York relating to the form of the action, the title to the submerged lands, and the special defences set up in this case.

ON September 1, 1888, the defendant in error commenced an action in the Supreme Court of the State of New York for the county of Suffolk. Its complaint alleged that "the trustees of the freeholders and commonalty of the town of Huntington and their successors" were a body corporate, created and incorporated by and under three charters granted,

VOL. CLIII-1

1

Statement of the Case.

the first by Richard Nicolls, Governor General under James, Duke of York, of all his territories in America, and dated November 30, 1666; the second by Thomas Dongan, Governor General of the Province of New York under James the Second, King of England, and dated August 2, 1688; and the third by Benjamin Fletcher, Governor General under William and Mary, and dated October 5, 1694.

It also alleged that the plaintiff was the lawful successor of the said trustees, etc., and as such, and by virtue of said patents and charters, and the laws of the State of New York, was the lawful owner and seized in fee, subject to the right of navigation, of a certain described tract of land of about three hundred acres, lying under water in Huntington Bay, in the town of Huntington, and that, as such owner, it was entitled to the exclusive possession and use thereof for oyster cultivation.

The complaint further charged that the defendant had theretofore exercised, and still exercised, acts of ownership upon said lands, and claimed title thereto and a right to the exclusive possession thereof; that he had planted, or caused to be planted, oysters thereon, and unlawfully withheld the lands from the plaintiff.

There was also an allegation of notice to quit, and a prayer for judgment against the defendant for the immediate and exclusive control of the premises. The defendant, who was a citizen of the State of Connecticut, having been brought in by publication, removed the case to the Circuit Court of the United States for the Eastern District of New York. In that court he filed an answer denying plaintiff's title, and pleading possession since 1866. Thereafter, on the 14th of November, 1889, the case was tried before a jury, and, at the close thereof, the court directed a verdict for the plaintiff. On the verdict a judgment was duly rendered, and to reverse such judgment this writ of error was sued out.

In addition to the grants from the Governors General (the language of the description in the first of which is set forth in the opinion, infra) the plaintiff claimed under a grant from the State of New York, made by the act of May 10, 1888,

Statement of the Case.

c. 279, which is also more fully set forth in the opinion of the court. The map below shows the locality of the disputed premises. The defendant's oyster bed is marked A.

Argument for Plaintiff in Error.

Mr. James C. Carter for plaintiff in error.

The main questions in dispute are two: First. Did the town of Huntington acquire title to Huntington Bay under its colonial charter? Second. If it did not, did the act of cession confer upon it such a title as to enable it to maintain an action of ejectment against the defendant below? These will be considered in their order.

I. The pretensions of the plaintiffs below that they acquired title to the whole of Huntington Bay by the colonial charters, should be promptly dismissed. Such construction of these instruments is rejected by every rule of interpretation applicable to them.

A grant by the sovereign power of lands under public navigable waters, especially of the character and extent. alleged by the plaintiffs in the court below, is, in a high degree, unusual and contrary to ordinary public policy. The presumptions are against it. No conveyance should be held to have such an effect unless it appear by clear and unambiguous language that such was the intention. Charles River Bridge v. Warren Bridge, 11 Pet. 420; Martin v. Waddell, 16 Pet. 367; Rice v. Railroad Co., 1 Black, 358; Fertilizing Co. v. Hyde Park, 97 U. S. 659; Lansing v. Smith, 4 Wend. 9; S. C. 21 Am. Dec. 89.; Chenango Bridge v. Binghamton Bridge, 27 N. Y. 87. Reversed, on other grounds, 3 Wall. 51.

Were there, however, no such rule as the above, a just interpretation of the colonial charters upon which the plaintiff below relied would not include in the grant any part of Huntington Bay.

What is Huntington Bay as claimed by the plaintiffs below? It is all that body of water lying south of a right line drawn from Eaton's Neck Point to Lloyd's Neck Point. Inasmuch as the claim of title to Huntington Bay rests solely upon the assertion that it is a harbor, and, as it is not pretended that it is specifically bounded by any description in the charters, the bounds must be taken as nature has laid them down, and as commonly understood, if there were any common understanding. But no proof was given of any com

Argument for Plaintiff in Error.

mon understanding, and the only approach to a boundary laid down by nature is that above stated. It can hardly be said that this is a possible boundary even, but there can be no other. There are no other points or headlands which would serve as the terminus of a line.

And such was the specific claim of the plaintiffs below, as proved by themselves on the trial.

Huntington Bay, therefore, as the claim is, is an indentation in the land some seven or eight miles wide at the mouth, in all other places between one and two miles wide and between three and four miles deep, and open to the wind and sea through at least six points of the compass. The notion that such a piece of water passed under these charters, as being a harbor, is wholly inadmissible.

There are no words in the charters describing it. Bays are not mentioned.

The plaintiffs below sought to overcome this insuperable difficulty by introducing some feeble testimony to show that, although this enormous tract of water was called a bay, it was in fact a harbor. This effort was an utter failure. They succeeded only in proving that it afforded a shelter for vessels against storms in certain conditions of the wind and not in others. Huntington Bay is not a harbor in any sense of the word, still less within the meaning of the charters.

It is not a harbor within any of the ordinary definitions. A harbor is a place where "ships can ride in safety" (Webster). This does not mean in immediate and present safety. Any straight shore where vessels can anchor may furnish that sort of security. That is not a place of safety where a vessel is in danger upon a change in the fickle wind. A place, in order to be a harbor, must be a harbor at all times and under all conditions, otherwise it is not a place of safety. And there is no pretence that Huntington Bay is a harbor when the wind is anywhere from N. N. E. to N. W. It is, indeed, a place often of extreme danger. If a vessel drawing such a depth of water, as not to permit her to enter Northport or the other harbors leading out of Huntington Bay, were