Majority
p. 313Emans against Turnbull, Denton and Voorhls.
Headnote
The inhabs-tants of Gravesend are not the of land, des-agreement between them and one 1670; buuhe sam,e belongs to the persons holding under have" the "inhabitants of r¡ght to^take and cariT a: way sea-weed fromthebeach sóií'neck^of kmd-greemenTre-has'^xisted1'* for more than yeare°andun. interrupted possession under if, by one of the parties, his heirs and assigns, the opposite party is concluded from disputing the title, and the court will not listen to technical objections to the deed for want of apt words, proper parties, or form. Seaweeds, &c. cast on the shore, belongs to the owner of the soil, and not to the first occupant. A right cf egress and regress over the land, or fishing|and fowling, does not give the right o« taking wood, grass, or any thing appurtenant to the ownership of the soil.Tflis was an action of trespass, for assaulting the plain- * * tiff, and stopping and detaining him and his horse and waggon, for the space of twenty minutes, at Gravesend, in King's county.
The defendants pleaded,
1. The general issue. 2. Son assault demesne, to which the plaintiff replied de injuria propria, gc. 3. That the defendant, Turnbull, before and at the time of the trespass was possessed of a certain close in Gravesend, and of the sea-weed which laid on the ground in the close; and being so possessed, &c. the 01 plaintiff, with force and arms entered the said close and took a large quantity of the sea-weed of the .said defendant, and would have it carried away, whereupon the said defendant, as owner of the said close and sea-weed, and the other defendants, as his servants, and by his order, gently laid their hands upon the said sea-weed, in order to keep the same, and also gently laid their hands on the horses and waggon of the plaintiff, to lead them out of the said close, &c. The plaintiff replied to this plea, protesting that the defendant, Turnbull, was not possessed of the ■dose, <fce. nor owner, &e. and stating that the defendants did the wrong de injuria sua, absque, &c. To
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this, the defendants rejoined, that the defendant, Turn-hull, was possessed, <fcc. and was owner of the soa-weed, and the plaintiff joined issue thereon.
The cause was tried before Mr. Justice Tompleins, at the King’s county circuit, in April, 1806, when the jury found a verdict for the defendants.
The evidence produced at the trial, was as follows. 3. An Indian deed, dated the 7th May, 1654, to the pa-tentees and inhabitants of Gravesend, for the neck of land from Antonio Johnson’s house, southward, and Conyne island, with all the meadow-land, and marsh-land thereto belonging. 2. A patent from the Dutch, governor Kieft, dated the 27th May, 1643, to Anthony Jansen Van Salee, for one hundred morgan of land,[9] lying in the bay, over against Conyne island, and stretching along the strand, &c. &c. 3. A patent from governor Kiefi, dated the 19th December, 1645, for the town of Gravesend to the four persons therein named, their associates, hairs and successors, &c. of a certain quantity of land, &c. beginning at the mouth of a creek, adjacent to Conyne isl- and, <fec. &c. 4. A patent of confirmation from govern- or Nicolls to Francis Brown, dated the 11th June, 1667, for the one hundred morgan of land, originally patented to Anthony Janson Van Salee, under whom Brown held by mesne assignment. 5. A report of referees to governor Lovelace, stating that Francis Brown had no meadow mentioned in his patent, and was short of his 100 morgan of land, and they report one-third of the meadow lying before his door, to make up the 100 morgan, one third to the inhabitants of Gravesend for the ditching they had done, though it did not belong to Gravesend, and one third to be at the disposal of government. 6. An order of governor Lovelace, dated the 23d August, 1669, stating a controversy subsisting between the inhabitants of Gravesend and Francis Brown, concerning some meadow ground adjoining to 12 morgan of upland in the pa*
p. 315
tent to Brown, but claimed by the inhabitants of Graves-end, as within their patent, and the governor allows one-third of the meadow to Brown, and two-thirds to the inhabitants of Gravesend; and, as the neck of land had hitherto most usually been enjoyed in common between the town and Brown’s farm, he orders it to continue so, with a right of appeal to either party to the next assizes. 7. The proceedings of a court of assize, held in November, 1669, in which the inhabitants of Gravesend were plaintiffs, and Francis Brown defendant, and on a trial by jury, a verdict was found for the defendant; but the court annulled the verdict, and ordered the division of the meadow, as divided by governor Lovelace, the 23d August, 1669, to stand good; and that the plaintiffs should have the benefit of those orders, if they took out their patent according to law, in 28 days. 8. .An agreement, dated the 29th April, 1670, between the inhabitants of Graves-end and Broivn, in which it is agreed that the lands and limits lately in controversy, shall be held and owned to each party, their heirs, &c. <fcc. that. Brown shall have the neck of land ivith the timber and herbage that lies from his house southward, bounded on one side by the bay to the west, and by a creek to the east, and the creek to be [*]the boundary between Broivn and Gravesend; but the inhabitants of Gravesend shall have free egress and regress over the said neck of land, and along by the water side, or strand on the west, with the liberty of fishing and folding, or any other needful occasion, without any molestation from Broivn, &c. 9. A patent of confirmation from governor Lovelace to Gravesend, dated 1st July, 1670, referring to and confirming the above articles of agreement. 10. An agreement dated the 12th March, 1734, between the trustees of Gravesend and Albert Coerten, (through whom the defendant claimed) in which it was agreed, that the inhabitants of Gravesend should have their way or road to their landing at the bay side, in a certain planner set forth in the agreement.
p. 316
It was admitted that the neck was not within the boundaries of the patent to Anthony Jansen, or the patent to Francis Brown, but was within the limits of the patents ^01’ Gravesend. A deed from Albert Coerton, dated 9th March, 1740, io Van Voorhis, and a deed from Van Voor-his to B. and C. Van Voorhis, dated the 5th October, 1756, were also read in evidence.
. From the parol evidence, it appeared that the neck was a strip of poor sandy ground, uncultivated, but producing wild grass, and capable of maintaining cattle, &c. The defendant, Turnbull, and those under whom he claims, have used it for the purpose ofpasturing cattle. Aquantity of wood fit for fuel, was also growing on the neck; as far back as the witness could remember, Albert Coer~ ten and his assigns were considered as possessing the neck, and did exclusively pasture it, and take the wood; and it was considered as possessed under the agreement of 1670: that the neck was used by the inhabitants of Gravesend for the purpose of passing and repassing, to fish, for a public landing, and for depositing manure, until it was convenient to remove it, and that it was so used under a belief of right; that previous to the war of 1775, the sea-weed was not known to be of any value, but since the war, it has been known as a manure; and from that time, the inhabitants of Gravesend have continually taken and carried away the sea-weed from the shore or beach of the. neck, though continually warned not to take it, by the owners of the land under the patents to Jansen and Brown; that the plaintiff, being an inhabitant of Gravesend, collected a load of the sea-weed, on the shore or beach of the neck, and was about carrying it away, when the defendants forbid him, and the trespass complained of was committed. It appeared that if the sea-weed were left on the beach, it would, as driven up by the sea, form a row, and protect the bank from being washed, and the sand from being thrown upon the neck.
p. 317
A motion for a new trial was made at the last term, and argued by Higgs and Benson, for the plaintiff, and by Harison and Hoffman, for the defendants.
Riggs and Benson.
The only question is, who was the owner of the sea-weed ? The defendant, Turnbull, claims it as owner of the soil on which it was cast. The locus in quo is admitted to be within the patent of Graves-end. The patentees of Gravesend were a body politic, or corporation, and entitled to all the franchises mentioned in their patent; such vls fishing, fowling, fyc. and the right of taking up what was cast on the shore, must be considered as an incident or franchise granted by the patent.[9]
The Tiee/fc or locus in quo, being, as we contend, vested » in the freeholders and inhabitants of Gravesend, either as a corporation, or in such way as to entitle them to the franchises, it remains to inquire whether they have by any act been devested of this property. The agreement of the 29th April, 3870, contains no words sufficient to pass a fee to Brown, waiving all objections to the agreement for want of proper parties. It amounts to no more than a license to Brown, to take the wood and herbage. If there was a grant, in express terms, of the wood and herbage, from the town of Gravesendto Broivn, the fee in the soil wouldstill remain in the grantors. If by a formal grant of the herbage or vesture of land, the soil does not pass,[10] a fortiori, it would not pass by such an agreement. The inhabitants of Gravesend then being owners of the fee or soil are they not, owners of all things cast or thrown upon the land ? The sea-weed vests in them, either ipso facto, by being cast up by the sea, or by their exercising acts of ownership, as taking possession. It has been the constant practice of the inhabitants of Gravesend, to n-o . ’o and fetch sea-weed, ever since iz has been known to have been of any value as a manure. This usage is evidence of a franchise belonging to the corporation.[9] Whether the product of the sea, or whatever is thrown upon the land,
p. 318
becomes the property of the owner of the land, without any act of ownership on his part, as taking possession, seems not to have been clearly settled by writers on this subject. Prior occupancy is considered by some as the only title j and the general rule seems to be, that where an article is thrown upon the land by the operation of nature, the first occupant, if he does not commit a trespass by going on the land, will be the absolute owner.[10] ^11 the present case the plaintiff was the first occupant; and admitting, for the sake of argument, that the defendant, Turnbull, was the owner of the soil, still, by the agreement, all the freeholders and inhabitants of Graves-end had the right of passing and repassing over the neck of land, “ for the purpose of'fishing and fowling, and other needful occasions.” The plaintiff, therefore, was lawfully on the land, and not a trespasser there, and having first taken possession of the sea-weed, he became, by right of occupancy, the complete owner. The words 11 needful occasions,” ought to be construed liberally and beneficially for the inhabitants of Gravesend. The doctrine of intendment, or prescription, is in favour of common right, and is never held in diminution of it. The right of ingress and regress over the neck existed in the inhabitants for every purpose, as to go and fetch away sand as well as sea-weed. The patent from the English governor confirms all the rights under the agreement, and in fact, amounts to a grant. The plaintiff had, then, a right to go on the neck, and having first taken possession of the sea-weed thrown up there, the defendants were trespassers in forcibly wresting it from him.
Hoffman and Harison contra.
If the agreement of 1670, passed the soil, then Turnbull was owner of the sea-weed thrown upon it. The words are, that each party should own, hold, maintain,.&c. in their proper right, and to their heirs and assigns for ever. This refers to the property afterwards described, and which was so to
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be held and enjoyed. The land called the neck became,therefore, vested in Brown, his heirs and assigns,- under whom the defendant, Turnbull, claims. Fróm 1670, until this time, Brown and those claiming under him have ex-ercisedan exclusive ownership in the neck, subject to the right only of passing'and repassing, by the inhabitants of Gravesend. The. acquiescence under the agreement is sufficient evidence, that it was made by proper parties*; and under full powerá; Indeed* the intention of the parties is to be considered, and if the words, though not technical, are such as clearly indicate the intention, thé court will give them effect. -Great liberality has been adopted in expounding deeds. If_ a man by deed covenant that if A. is not paid rent at a certain time, it shall be lawful for him to distrain for the rent in the manor of F., this amounts to a rent-charge, without any express
words to that purpose.[9] So if a man covenant that shall be lawful for another, his heirs and assigns* always to use a certain way through his close, this amounts to a grant of the way.[10] So if a person agrees that another* for a valuable consideration, shall have a certain piece of land, it amounts to a bargain and a sale of the land.-[8] - The words wood and herbage¡ subsequently used, do not Control the first part of the agreement; but are mere sur-plusage. It is the same as to say that Brown should have the soil, together with the wood and herbage¡ The land is the principal,-the timber and herbage are incidents. — 1 Again, where there is an express reservation it excludes fill implication, and the party can claim no more' than is expressed. The liberty of fishing and fowling only, is reserved. If the right of soil did not pass to Brown, Why reserve a right of way only,- and a liberty to fish and fowl? By the other needful occasions, was meant no thing more than that the inhabitants of Gravesend might use the neck as a landing-place,- for-their goods, ór for manure, which were to be carried away. The use of the'
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ncc}c for this purpose, is stated in the evidence. The grant of the English governor confirms this agreement, and the rights of the parties under it; and an exclusive and undisturbed possession by Turnbull, and those under whom he claims, for more than a hundred years, ought to put an end to every doubt on the subject. After the acceptance of the new grant, the inhabitants of Graves-end could never deny 'the agreement of 1670, which is a1 perpetual estoppel to théha and all persons claiming under them.[9] If a person accept a subsequent grant,.he must be bound by it, and cannot claim more, under the former title, than is contained' in such grant. But if all the documentary evidence had been destroyed, the long possession of the defendant would be sufficient. Again, the sea-weed belongs to the owner of the soil, not to the first occupant.. The civil law which has been cited, does not prevail here. It is authority no further than it has been adopted in the English common law, or by our own courts. By the English law, treasure-trove belongs to the sovereign. Animals ferae naturce belong to nobody; but if they make nests or burrow in my land, and have young ones there, I have a property in them, e* ralione soli, until they fly or run away. If the unfledged young of birds belong to the owner of the soil, a fortiori, inanimate substances, like sea-weed, must belong toJhim. Again, all the gradual accessions to the soil, or alluvions, belong to the owner of the soil.[10] The sea-weed, as well as the sand, is a .gradual increment from the sea. The owner of the land may remove it, or suffer it to remain to strengthen the soil; it is an incidental advantage arising from the drift of the sea, to which the owner of the soil has a perfect right. Wrecks from the sea belong either to the owner of the soil, or to the sovereign. There is no evidence of any claim, or of the exercise of any right in' the inhabitants to take and carry away the sea-weed for more than 100 years. The reservation to them
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was of a mere right of egress and regress. The plaintiff has shown no customary or prescriptive right to take and carry away the sea-weed. Such a right must exist uninterruptedly, and be acquiesced in for a long time, to constitute a prescription.
The first question arising upon this
case is, who is seized in fee of the locus in quo ?■ Does it reside in the inhabitants'of Gravesend, or in Turnbull, the defendant ? By the agreement of 1670 it was evidently intended to convey the fee of the neclc to Brown. It is stated to be a final agreement or determination, concerning certain parcels of land lately in controversy between the parties, and the order of governor Lovelace of the preceding year stated that the title to the neck was one of the subjects of controversy. The agreement declares that the said parcels of land shall be owned and held by each party, as thereafter mentioned, and to their heirs, successors and assigns, as their proper right; and in the 7th and 8th articles it is declared to be agreed that Broivn should have all the neck of land with the timber and herbage, and that the inhabitants of Gravesend should have free egress and regress over the same. The intention here is manifest, to vest the fee in Broivn, and to reserve a right of way to the inhabitants. Considering the antiquity of the instrument, and that the defendant, Turn-bull, and those under whom he claims by a regular deduction of title from Brown, for a period of time as remote as the memory of witnesses can reach, have exercised constant and exclusive ownership over the neck in question, the agreement ought at this day to be most liberally expounded, so as to give effect to the intention. The agreement purports to be signed by sundry persons, and the inhabitants of Gravesend cannot be permitted to say that those were not persons competent to convey the neck; for, afterwards, in the same year, 1670, they accepted from governor Lovelace a confirmation of their
p. 322
patent, which patent of confirmation expressly allows- ¿ confjrms the agreement. The inhabitants of Graves-end áre therefore to bo considered as regular parties to the agl'eeraent > and as il: was accompanied by a delivery of possession, (for so we are to intend, as the possession hath been uninterruptedly enjoyed and continued down,) the people of Gravesend are concluded from disputing the title of the opposite party. Admitting the writer to be deficient in the apt terms requisite to pass a fee, the agreement ought to bind the inhabitants, especially after such a lapse of time accompanied by so long an acquiescence. Art arbitration bond and award cannot have the operation of conveying land; but a party, by his agreement in that way, has been held to conclude himself from disputing the title. (Doe v. Rosser, 3 East, 15.) This is going much further than the present case requires. We need only say, that if one par.ty agrees in waiting with another that he shall own and hold a piece of land fp him and his heirs, and he delivers him the possession, and that possession is held and enjoyed for a time beyond the memory of man, in such a case, we will not search curiously for technical terms, but will hold the party concluded, by his agreement and subsequent acts, from disputing the title.[1]
The next point in the case is, whether the sea-weed thrown by the sea upon the shore or beach of the neck, did thereby vest in the owner of the soil, or belong to the first occupant ? The plaintiff's right, if any, rested upon occupancy; for the liberty of egress and regress, and of fishing and fowling, reserved to the inhabitants of Graves-end by the agreement of 1670, gave them no other rights than those expressed. They could not take wood, grass, or any thing appurtenant to the ownership of the soil. — -
(a.) (a.) Thus the law invariably regards possession with an indulgent eye, A deed may ever be presumed after a length of time and possession.— Arthur v. Arthur, 2 Nott. & M'C. 96.
p. 323
The plaintiff then had no right to the sea-weed, because he was an inhabitant of Gravesend. Any stranger would have had an equal right to take it.
The sea-weed thus thrown up by the sea, may be considered as one of tho.se marine increases arising by slow degrees; and according to the rule of the common law, it belongs to the owner of the soil. The rule is, that if the marine increase be by small and almost imperceptible degrees, it goes to the owner of the land; but if it be sudden and considerable, it belongs to the sovereign.— (2 Blacks. Coms. 261. Harg. Law Tracts, 28.) The seaweed must be supposed to have accumulated gradually. -The slow increase, and its usefulness as a manure, and as a protection to the bank will, upon every just andequi-table principle, vest the property of the weed in the owner of the land. It forms a reasonable compensation to him for the gradual encroachments of the sea, to which other parts of his estate may be exposed; this is one sound reason for vesting these maritime increments in the proprietor of the shore. Theyws alluvionis ought, in this respect, to receive a liberal encouragement in favour of private right. I am of opinion, therefore, that the motion for a new trial ought to be denied.
Thompson, J. concurred.
Spencer, J. not havingjheard the argument in the pause, gave no opinion.
Judgment fop the defendants.