BOARD OF TRUSTEES OF THE TOWN OF HUNTINGTON fl. LOWNDES.

625

be may discover. I know of no law that gives anyone a right to explore my land, or any companies' or corporations' land, for the purpose of making a location upon it. The supreme court has often held that no right of pre-emption or otherwise can be initiated by tre!lpass.

BOARD OF TRUSTEES OF THE TOWN OF HUNTINGTON ". LoWNDES.
(Oi1'CUit

Court, E. D. New York. November 19,1889.)

L

WORDS AND PHRASES-"HAVEN" OR "HARBOR." PUBLWLANDs-STATE

A body of water need not be land-locked in order to be a "haven" or "harbor. It
BAY.

9.

8.

4.

Huntington bay, a body of water lying between Lloyd's neck and Eaton's neok. on the north side of Long island, in the state of New York, is a "haven" or "harbor; " within the meaning of the language contained in the colonial patents of 1666L 1688, and 1694, granting to the town of Huntington title to all lands south 01 Island sound, between certain east and west bounds, including "all q.avens, barbors, waters, " ere. The to the soil under said bay passed to the trustees of the town by virtue of said patents.
TO THE SOIL.

Whatever rights, if any, a. citizen of the sta.te of New York might ba.ve obtained under the common law by long possession and user of an oyster-bed in any of the . common or public la.nds of the state, no such could be obtained by a non-resident of the state, nor retained by a former resident after he had removed from the . state. I. SAttlE. The defendant, then a citizen of New York, having had possession of an oysterbed in Huntington ba.y, in the sta.te of New York, from 1867 to 1872, cla.imingthat said oyster-bed was upon the common lands of the sta.te l but claiming no title to the soil in himself, then removed to and thereafter resided In the sta.te of Connecticut, butstill continued to occupy the oyster-bed. Held, that when he removed from the state of New York,. and gave up his citizensllip, he a.t the same time yielded up whatever equitable right of ownership he bad in t,he· premisell, if any, and his use and occupation thereafter was that of a trespasser only, which could not ripen by anY lapse of time into either a title in fee Qr a right to continued QccupatiQn tbereQf. (SylUrbuB by the Court.)

OYSTER-BEDS-TITLE BY USE,R-NoN-RESIDENTS.

At Law. Action in ejectment. The plaintiffs. the board of trustees of the town of Huntington, in the county of Suffolk, in the state of New York, Elued the defendant, Theodore S. Lowndes, in the supreme court of the state of New York,under section 1502 of the Code of Civil Procedure, to recover possession oftheir lands under water in Huntington bay, claiming title thereto under three coloniul pateuts or grants, to-wit" the Nicolls patent, of November 30, 1666, the Dongan patent, of August 2, 1688 j and the Fletcher patent, of October 5,1694. The cause was removed to the United States circuit 'court on application of the defendant by reason of his beinp;a non-resident of the state of New York. The defendant, Lowndes, in 1867, being then a resident of New York, staked out and planted oysters on 130 acres of land under water ,in Huntington bay, upon which there were then growing no natural oysters, and continued thereafter, from time to time, to plant seed oysters thereon, which matured in from three to five v.40F.no.11-40

Jl'EDERAL RJilPORo;rER,vOl.

40·

.years, and which at maturity; and continu,ed,so ·to,occupy said lands for oyster time of the trial. of this action, \ cla.iming:at the time ,of his origip!11 ent;ry the right to,8uch occupation as Il. citizEln.ofthe state. of New York, and claiming tpat the title to said lands was in the state of New York, and not in the town of Huntington. The defendant asserted no title to the fee of these lands in himself. In 1872, he removed to the state of Connecticut, and thereafter continued to be a non-resident of the state of New York. He continued planting and oysters from!said bay after he had becom!'l a non-resident, changing the crop thereon every three or five years. He obtained no written lease, authority,title,or.franchise from the state, or from the town. Prior to the commencement of this action, he was notified by the plair,tifl'1'I t9remove hisoYl'ters from these grounds,ltnd refused. In 1888, and' prior to the 60mmencement of this action, the legislature of the state of New York <laded to the plaintiffs all the right, title, and inof ilie people of the state of NewYork, if any, of, in, and to the lands under water in Huntington bay, for the purpose C>f oyster 'tion, subject, however, to the legahights, if any,of persons 'having oysters planted there. Laws N. Y. 1888, c. 279. While,asserting notitIe , to the fee of the said lands under water hihimself, the defendant claimed that by reason of his occupation since 1867 ,he had, acquired a legal rightj};jydprescription or otherwise, to holdsaid lands, and to contillue to occupy the purpose of oyster irrespectiveof the ofthe·soil. The colonial patents cgranted to certain trustees therein named, for themselves and their associates, the freeholp.'era and inhabitants of the said town, their heirs, successors, and assigns, , foreyer, all lands within and, bqllpds therein expressed; that is to say, a certain river or oreek: on the west, commonly called by . the Indial1s blthe. name of and English the 'ColdSpringi'to stretch eastward to Neaaquack river; on the north to '·:be betwixt Long ! xnain" arid on the south by the sea;" "as also all havens, harbors, creeks" quarries, woodland, meadows, pastures, marshes, waters, lakes, fishing, hawking, hunting and fowling, and all other profits, ,coxnrooditiea, :emol:"tIments. I\ndherl':ditaments:to the said Jandandpreroises, within said .JiIhits and bounds belong\ng, or in any wise appertaiI1ing," .etc. These patentsor'grantswere confirmed by the colonial legislature and the first <lonstitutionof.the state of York. , The plaintiffs were the successors , oithe trustees named in said patents. LawsN. Y. 1872, 0.492. "The . ,trustees of the town of HUhtington a.lways claimed under their patents ,stitle. tothe lands under the waters south· of Long Island sound, between ,i;the east and:west bounds mentionecHn said patents; and had exercised ·;acts of ownership thereon 'by making leases' to .various ;individuals for pu,rposes of oysterclllti\'l.ation, dock leases\,grave1"leases, eto., in' Hunt('ington bay. Atitheirtown-meetings the,freeholders·and inhabitants of ! the town had annually passed resolntions forbidding non-residents oUhe . town from,taking:clams; oysters, from any of the waters ·,of saidtown,under a penalty, as they: were, authorized to do under ·the

,.

BOARD OF

TOWN OF HUNTINGTON «1. LOWNDES.

627

laws of the state of NewYot:k. In 1737 the colonial legislature of the colony of New York act forbidding non-residents of the colony from gathering or taking 'oysters or shell-fish from any of the waters within the said colony. ' Liv. & S. Laws N. Y. c. 672, p. 265. The board of supervisors of the, county of Suffolk also enacted a law, in 1875, forbidding non-residents of the county of Suffolk from planting or taking oysters from any of the waters within their jurisdiction, under authority such powers upon boards of the laws of the state of New York of supervisors. Laws N. Y. 1849, c. 194; Smith v. Levinu8, 8 N. Y. 472. In 1880 the legislature of the state of New York passed an act making it a misdemeanor for any non-resident of the state of New York to plant oysters in any of the waters of the state of New York without the consent of the owners of the same. Pen. Code N. Y. § 441. In 1.887 the legislature of the state of New York also passed an act creating a. f3tate board of fish commissioners, which act also forbids the leasing of lands underwater, within their jurisdiction, to non-residents of the state. Laws N. Y.1887, c. 584. The states of New York and Connecticut, by commissioners duly appointed on the part of each of the said states, under and hi pursuance of laws passed by the legislatures of each of said states in 1879 and 1880, (Laws N. Y. 1880, c. 213,) made an agreeto f3ettle the questiop of the boundaries between said states Long Island sound, which agreement was duly executed by the commISsioners of said states respectively, and confirmed by the legislatures of said states respectively· This agreement, and the boundary line established inpursuance tliereof, was ratified, approved, and consented to by the congress of the United States, February 26, 1881, (21 U. S. St. at :Large, p. 351,) entitled" An act concerning settlement of boundary lines between New York llind Connecticut." Huntington bay is situated south of said boundary line between the said states, as so e...tablished, and south of Long Island sound, and is wholly within the territorial limits of the state of New York. By acts of the legislature of enchof said statespa.ll,ged therealter, atldbefore the commencement of this action, the lines of the respective towns and counties bordering upon Long Island sound in each of said states were extended to said boundary line so established.Laws N. Y. 1881, c. 695. ' Henry C. Platt, counsel for plaintiffs, at the c1ol'leof the testimony mo'Ved for a direction of a verdict for the plaintiffs, aud cited: Autbority for towns making regulations for their common lands. Act. N. Y. Marcb7. 17l:!8. c. 64. §§15, 16, (2 Jones & V. Laws N. Y. 337;) same continut'd. llnd now in force, 2 Rev. St. l:!l:!l, 01"2 Rev. St. pt. 1. c. 11, tit. 2, art. I, § lO;'such rt'cords evidence, 2 Rev. St. 885-900. Laws ratif,ring calonial grants to tbe town,'ActColonial I,egisllttl1re. passed May 6, 1091; Liv. & S. LawS,e. 2, p. 2; first Const. Y. (Aprl1 20, 1777.) 35. continues in force existing coluniallaws;section 36 ratil1tt8 the colunial grants; section 1, .1 Jones & V.Laws N. Y. 12; or. same, 1 Rev. St.N. Y. 44; second Const. N. ,Y.(Nov. 10, 1821.) art. 7; l\Rev. St.§§ 13.14. p. 58; third and existing ,Const. N.. y., 3, Hl46,) and amendments, article 1. §§ 17,18; 1 Rev. St. N. Y. 64, 84. Laws excludiogool1.oresideotB of colooy aod, state, etc.,

828

. J'EDERAL REPORTER,

vol. 40.

from taking or planting oysters within Us jurisdiction, Act Colonial Assem. Dec. 6, 1787; Liv. & S.Laws, c. 672, p. 265; resolution board supervisors Suffolk county, passed 1875, pursuant to Laws 1849, c. 194, IS 4, subd. st. 13, (2 Rev. St. 1025;) and also Laws 1875, c. 482, § I, subd. 16, 1039,) which laws were passed pursuant tothe present constitution of the state of New York, article 3. § 23; Pen. Code, (1880,) § 441; oyster franchise act, excluding non"residents, Laws 1887. c. 584, §§ 4-9. As to validity, construction, and extent of patents, B1'ookha'ven v. /St1'ong, 60 N. Y. 56: Robins v. Ackerly, 91 N. Y. 98: Hand v. Newton. 92 N. Y. 88: Roe v. strong, 107 N. Y. 358,14 N. E. Rep. 294. The defendant by his occupation obtained no title to the soil, nor any right to the continued possession thereof, after notice to remove therefrom, as against the plaintiffs, the holder of the legal title, but at most only acquired property in bis oysters. Fleet v. man, 14 Wend. 42; McCarty v. Holman, 22 Hun, 53; Sutter v. Van De1'veer, 47 Hun; 366. The legal title to the land in dispute being in the town of Huntington, under its ancient grants, the occupation aJ.1d .use thereof by the must be considered to have been permissive, and in subordination to the legaltitle, as he claimed no title thereto in himself at 'the time of taking possession. nor at any other time. His possession was not of that adverse character that would ripen into a title by adverse possession to the soil, nor one that would create an easement, or a right of continuous possession, as againl!t the owner of the soil. Ogden v· Jennings, 66 Barb. 308: Colvin v. Burnet,17 Wend. 564: Howard v. Howard. 17 Barb. 663-667: Livingston v. Iron 00·· 9 Wend. 511: Harvey v. Tyle1'1 2 Wall. 328; Smith v. Burtis, 9 Johns. 180; Jackson v. Johnson, 5 Cow. 74; Jackson v. Frost, Id. 346: Hoyt v. Dillon, 19 Barb. 651; Robinson v. Kime, 70 N. Y. 152; Bliss v. Johnson, 94 N. Y. 235: 'J'hompson 'V.·Burhans.79 N. Y. 99: Higinbotham v. Stoddard. 72 N. Y. 94. 9 Hun, 1. He obtained no easement. and had no estate to which an easement or profit a p1'end1:e could attach. Ward v. Warren. 82 N. Y. 265; Nicholls v. Wentworth, lOON, Y. 455, 3 N. E. Rep. 482: Roe v. 8tronfJ, 107 N. Y. 358, 14 N. E. Rep; 294: Washb, Easem. 565-570: Oobb v. Davenport. 33 N. J. Law. 223; McFarlin v. EsseaJ 00.,10 Cush. 310; Pierce v. Keator, 70 N. Y. 420; Hun tinyton v.Asher, 96 N. Y. 604; Hill v. Lord, 48 Me. 99; .Hu,ff v. McOauley, 53 Pa. St. 209. If no title under patl1nts. then the plaintiffs. had title under the grant from the state in 1888. The state bad power to make such a grant. Post v. Kreisr.he7·, 32 Hun, 49,103 N. Y. 110. 8N. E. Rep. 365. 1 N. Y. Orim. R. 501; McOl'earlyv. Virginia, 94 U. S. 391. The defendant had acquired 110 ,legal rights in the premises at the time of the grant from the sLate, except the right to a reasonable time to remove his personal property therefrom.to-wit, his oysters, after notice from the owner of the soil. His occupation thereof had not been continuous: and, if he had acqUired any common-law right to the occupation or possession of the premises for purposes of oyster planting as a citizen of tbe state of New York, he abandoned and lost such right when he became a non-resident of the state, iJl 1872. McCready v. Vi1'ginia, b'Upra. The language of the patents was broad enough to include the premises in question. whioh,are two miles south of Long Island sound. and within Huntington bay proper. The body of wa.ter south of the headlands of Eaton's neck anti Lloyd'sneek has always been Sound." known as "Huntington Bay." as distinguished from" Long All the lands under water and above water s(;)uth of the Sound passed to. the town uildertbeir patents.. These pr8lriisea are concededly within the east and we,t borrnds of the patents.. It·iifimmatel'ial whether such lands lie nnder ,vaters of a land·locked harbor or an arm of the sea, if they are .included ·withilj the bounds onhe patent. B1'ookha'cen v. St1'ong. supra. Lauds under water may be recovered by ejectment. People v. Mauran, I) Denie, 889; Railroad 00. v. Valentine, 19 Barb. 484.

BOARD OF TRUSTEES OF THE TOWN OF HUNTINGTON ". LOWNDES.

629

N. S. Ackerly, a. R. Street, and H. a. Platt, for plaintiffs. Martin J. Keogh, counsel for the defendant, contending that the defendant had a right to the continued possession of the premises in tion, which he had acquired under the common law, cited the following cases: Lowndes v. Dickerson, 34 Barb. 586; Martin v. Waddell, 16 Pet. 410; Corfidd v. Coryell, 4Wash.C. C. 379; Decker v. Jifisher, 4 Barb. 592.
LACOMBE, J., (orally.) As to the construction of these ancient charters, touching the character of the estate they convey, this court will follow the rulings of the courts of this state. 'fhe next question is as to the extent, territorially, of these patents. Ordinarily, a bay is spoken of as a distinct body of water, distinct from the sea, orfrom the arm of the sea. out of which it opens. Sounds and arms of theses are said to flow into and out of the bays, and bays to open into sounds. In this particular case, there seems to be a measure of. doubt as to the location of the line of the Sound, in the light cast upon it by some of these deeds which have been introduced. The boundaryof Ellton'sneck, liS granted at about the time of this patent, makes it seem uncertain as to exactly where the Sound ended. These points were before Judge CULLEN, I see, in the case of Ackerly v. Godfrey, and he there sustained the plaintiff's view as to the boundary by the Sound. In this particular case, however, I do not think it necessary to determine ,precisely what would be the north and south limits of this patent, if. we only had the words "by the Sound" and "by the sea." The use of the words "harbor" and "haven" seems to be sufficient to carry this particular body of water. I do not know that there is any rule of law, or any principle or practice of common speech, which requires that a harbor shall be land-locked, or that a haven shall be absolutely safe from every wind that ,blows. Grants from the sovereign, as well as acts of legislatures or documents generally, are to be interpreted by giving to the words which they contain, in the absence of anything to indi.cate a contrary meaning, the plain, ordinary meaning which they have in the educated speech of people by whom the language is employed. This particular body of water geographically indicates that it may be used as a haven or harbor, and the geographical appearance of the hind is to be taken largely into consideration here; for these grants were made at a time when, I infer, the north shore of Long Island was not used to any particular extent for the purposes of navigation, it not being much settled at that time. The geographical appearance, then, of this body of water, bounded OD three aides by land, would indicate its appropriateness as a harbor or baven, and experience-as to, which we have been advised through the testimony of the witnesses, leaving out of view any points of dispute between them-goes to show that !t has been used as a harbor or haven. It is not a perfectly safe harbor, nor an absolutely secure haven. It is a place which, when the wind is blowing, or is threatening to blow, from a northerly point. it is desirable. perhaps. to leave; but when the wind comes from the east or south or west it is a place which,

630

FEDERAL REPORTEll,

'VoL 40.

in those circumstances, will afford a secure place of l1arbor, and a reasonable haven for ships. It seems that under the Iimguage of these grants, then, the title to the land'in contri>vtll'sy was given' to, the town of Huntington. It only remains to consider the effect of defendant's ·use and occupation of the pllrticular part of that land which he has used and occupied. With regard to this use and occupation, it is to be noted that it is not in character continuous. When he originally began to use the land, to occupyitby putting his personal property upon it, he claimed that he had aepecies ottitle to the land as a citizen of the state of·New York; that he, in common with all his fellow-citizens, had an equitable title to those lands, the legal title being in the state,' in trust for the common purposes of its citizens. Under the law oithe do. not mean the statute law,-under the law of the state, if the title were still in the state, he could, (in that territory as to which he, with others, had a common title,) by the performance of certain acts thereon, segregate, as it were, a portion of such territory,so that, as to that, it might be said that hisocctlpation and use of the portion thus segregated might become exclusive. Now, even conceding that the legal title was still in the state, and that this right which he obtained by actual ,occupation and use might be considered an equitable property right which he hadtheJ;'e, his occupation in assertion of such property right continued only for six years. In 1872 he moved out of the state of New York,-ceased to be a citizen of the state. When I was considering this case yesterday, I inclined to the opinion that the rights to the common lands held by. the states were rights which, in the absence of anything to the contrary, were to be participated in by all the inhabitants of the Union. Since the argument yesterday, and after examining the subject more carefully, and giving it furtner thought, I am inclined to change that When the individual state succeeded to the BOv,ereignty of England, ane), took the title to the property which theretofore the crown of England had held, each state held that property, that is, such of it as waS held in common, in trust for its own citizens; and no pro.perty right whatever in the land so held by one state belonged to the citizens ofan adjoining state. That so, when the defendant removed from the state, and ,gave up his citizenship, he at the 'sa.metime yielded up whatever equitable right of ownership he had in these premises. From and after that date I whatever occupation and use he ha.d was the occupation and use of a trespasser only, which could not ripen by any lapse of time-certainly, could not ripen by the lapse of sixteen years-into either n title in fee ora right to continue the use. In this view which I take of the character of the occupation, 1 am to the 'opinion that the defendanth08 not succeeded in establishing his right to continue to occupy this land as he has occupied it in the past_ I Shall therefore direct a verdict fOf the plaintiffs.
Verdict accordlDgl1_

.'IJ. LITTLE ROCK & 1rI. R.

co.

631

LoCKHART". LITTL:l!l

Rocx c% M. R. Co. et ale

(Oircuit Oourt, W. D. Tennessee. May 95, 1889.)
,L

RAILIlO.\.D'CoMPANIES-TJuFFIO ARRANGEMENT-INJURIES TO EMPLOYES 01' OTHER COMPANIES. ,

Wilere two railroads have a traffic interchange of carB, if one sets loaded cars on the track of the other at an unusual time of the night, and does not give notice, or put out danger signals warning, whereby an employe of the other is killed by collision with the obstruction, it is liable in damages for the negligence. '
It seems that both companies may be liable in such a case,-the deceased man" own company because.it must furnish a clear track, or because the other company is pro 'hac its agent 'or servant in the matter; but where the court withheld a is not. a discrimination by thecoilrt against the other charge on that point' company.for which it is entitled to a new trial. A joint wrong-doer cannot complain that his companions in wrong escspe liability 8s a ground for a new trilili' .:
', , '

.. BAllE-INSTRUCTIONS.

.. &Ja-,.;ORDINANOB LIMITING SPEBD-RIGHTS OFEMPLOYEI.

A Ul,unicipal ordinance limiting, the of engine\! passing through a city,!, generally for the benefit of strangers using the streets, and it is doubtful1ftbe ,railrellll employes can ·havethe benefit in cases of COllisions between trains; but if the rate.9f speed .does not cause the injury, it Is hnmaterial, especially where the victim of the accident is in nO'way in control of the engine, and notresponsible for the speed. '
. ·

"

BAMB;orlt,A.NAGEMBNT BY TllUSTEES UNllJql. MORTGAGE.

Whei-e the Ip.anagement of the road was at tbe time. of the accident jointly in the , hands, of trustees of the mortgage and the company purchasing from them, under a oontraAt ,etaining possession as a security for ,tpe pUrchase, money, but alsl) providing ttiatthe trusteessh6uld be indemnified for losses by negligence pending the transfer of the property nnder the contract, both are liable, and the plaintiff may 1.'I¥'OveJ.: against either; the verd.ict and judgment being1l1()ulded, under the see Code,to suit the circumstances.
It is not contributory negligenCEl if a switchman ride on the front foot-boord Of the lJw1tcn-engineto which he is attached while en route to the work he has todo., .It is'not contributor,. negligence to ride in one place merely because by the accIdent it. JIl8y. been demonstrated tpat some other place would have been safe. ·

ls.lU.I!lTEB AND BERvAN1'-CONTRIBUTOBT NEGLIGENOE.

At On motion for a new trial. OJl'the .trial this case there was a verdict of $4,000 for the plaintiff. subs41nce,charged the jury as follows: . "If you find from Thec()urt. the: proof that the traffic agreements, usages, or customs between raili<»1d cPIllpanies justified the Little Rock Company in delivering the cars on main traCjkof Chesapeake Company at the time apd place placed and without notice of. the fact ous]y<?rat that time. given to the Chesapeake Company,then the Little Rock (iefen9ants are not liable to this plaintiff, but the latter would, certaiply. be liable to him, and you will so place your verdict.. But if yqu find froID. tHe proof thattpedelivery was ,at a time.l)Jld place andin, a authorizedby.Jhe agreements, usages, o,r customs of dealing 1?etween the companies,'then the Little people alone are liable, and y,()u "rill so place )'our verdict., Both would be liable if you ,find from .proof that by their agreementsj customs, and usages in dealing , aqout the transfer of to the track,!, or by their construction of. such , or by their to ma¥;e regulati()l1s, that are and proper to delivery frOIll obstrupting this track,tlley , tb"is wUl!againsHhe :r,i,ttle Rock C0ll?-pany ,iIP9 CQWI'WllY'

of