Vroom v. Tilly

It appears from the findings of the trial court that in the month of December, 1891, the state of Hew York, through its commissioner of fisheries, granted to one Nicholas P. Housman a franchise in a tract of land under the waters of Long Island Sound near Crane’s Heck in the county of Suffolk, consisting of two hundred and forty acres, pursuant to the provisions of chapter 584 of the Laws of 1887, for the purpose of the cultivation of shell-fish ; that the plaintiff was engaged in the cultivation of oysters upon an adjoining tract in which a similar franchise had been granted to one John H. Post, and had acquired the right to cultivate oysters upon another tract also adjoining, in which a grant had been made to one Elizabeth V. Merrill; that in the summer of 1896 the plaintiff in good faith believing that he was upon lands included in the franchise to Merrill, proceeded to buoy, dredge out, plant and cultivate oysters on a tract of land consisting of about forty acres, and from that time on maintained the buoys surrounding such lot, caught the sea stars therefrom and cared for the growing oysters ; that the soil upon which such cultivation was had proved available for the purpose, resulting in a large production; that about the first of June, 1902, the defendants, who had acquired the rights of Nicholas P. Housman in his franchise, caused a survey to be made, which

There was evidence tending to show that at the time Housman obtained his franchise the land was surveyed and buoys set upon each corner, which consisted of a stake tied by a rope to a stone, and that such buoys would last about a year. It was, however, found as a fact that when the plaintiff began to work the tract it was not marked by buoys, and it is not claimed that Housman or his assigns have cultivated any part thereof for oysters or gathered any therefrom until the taking in 1902 of those claimed by the plaintiff. The trial judge found that the oysters belonged to the plaintiff, and the judgment entered upon his decision has been affirmed in the Appellate Division.

I do not think that the rights secured by the plaintiff to plant and cultivate oysters upon the franchise of Post or Merrill adds to or affects his claim. His rights were those only given to every citizen to go out into the sea and fish or plant and gather oysters. Those rights have been defined by Andrews, J., in the case of Post v. Kreischer ( 103 N. Y. 110 ) as follows: “ By the common law oysters planted in a bed clearly marked out and defined in the tidewater of a bay or arm of the sea, which is a common fishery to all the inhabitants of the state where the bay or arm of the sea is situated, where there are no oysters growing spontaneously at the time, are the property of the person who planted them, and the taking them by another person is a trespass for which an action lies. (Fleet v. Hegenan, 14 Wend. 42 ; Decker v. Fisher, 4 Barb. 592 ; Lowndes v. Dickerson, 34 id. 586, 589.) The planting of oysters in tidewaters and the right of property in the person planting them is not regarded as an exclusive appropriation of the right of fishery common to all the inhabitants of the state but as a legitimate exercise of the common right not inconsistent with its reasonable enjoyment by others.”

The franchise granted to hachólas P. Housman pursuant to the provisions of this statute recites the application made by him to the commissioners of fisheries for a franchise, in which he represented that he wished and intended to use the grounds for the planting and cultivating of shell-fish; that the grounds designated were not natural oyster beds, and after also reciting the compliance with the rules of the commissioners established with reference to the granting of franchises proceeds to grant to the applicant a perpetual franchise for the purposes of shell-fish cultivation in the lands applied for, specifically describing them by their lot numbers, and then concludes “to have and to hold the same unto the said Grantee and legal representatives and successors forever, provided always that said grants are not natural oyster beds; that this grant shall not interfere with any established right of oyster cultivation and that said grantee shall at once cause the said grants to be plainly marked by stakes, buoys, ranges or momiments, which stakes, buoys, ranges or monuments shall be continued by the grantee a/nd legal representatives, and provided farther that the grantee and holder of said grants shall actually use and occupy the same for the purposes named, in good faith, and for no other purpose and this grant is accepted by said grantee subject to all the provisions of the act aforesaid "x" * * and it is stipulated, conditioned a/nd agreed that if the grantee herein shall cease to actually tise and occupy the premises hereby granted for shell-fish cultivation or shall use them for any other purposes whatsoever * * * then this grant shall be void and the lands herein described shall forthwith revert to the State of New York.”

It is now claimed that the provisions of this statute requiring

The franchise granted to Housman herein was from the state, through its commissioners of fisheries. The grant, therefore, is not to be construed against the grantor, as in case of a conveyance by one citizen to another, but most favorably tp the state, which stands in the place of the crown, where the rule is that only that passes in which the intention of the crown is clearly manifest. (Duke of Somerset v. Fogwell, 5 Barn. & Cres. 875, 885 ; Matter of May or, etc., of New York, 182 N. Y. 361 , 365.) What was the legislative intent ? Evidently not to do away with or abrogate the common-law right of fishery in the bays or arms of the seas recognized the world over. The planting and cultivation of oysters had become a great and profitable industry, in which. many people were engaged. When a suitable piece of ground was discovered for their propagation it often occurred that many persons sought to occupy it. Under the common law each person had the right to stake out his bed and the oysters growing thereon became his property, but heavy storms often carried away the stakes, and this was liable to occur several times a year. The replacing of them so as to correctly mark the bed became a fruitful source of dispute between the owners of abutting beds, often resulting in quarrels and the breach of the peace. It was to end these disputes that the legislature saw fit to pass the statute in question, not in derogation of the common law or the rights of its citizens but in aid thereof, by requiring a survey of lands designed for oyster culture and the granting of a franchise to those desiring to cultivate thereon, to the end that each person cultivating

The grant, as we have seen, is of a right to cultivate shellfish at a place specified in the bays and arms of the seas. It prohibits the occupying of the territory for any other purpose. It does not purport to convey any interest in the land itself. It is only a right to occupy for a specified purpose. It is in the nature of an incorporeal hereditament, as was said by

In this case it appears that the plaintiff, after dredging off the lot in question, covered the same with oyster shells. It appears that oysters are propagated in various ways; one by the planting of seed oysters, so called, which consist of full-grown male and female oysters; and another way is by the planting of oyster shells, which has been found to be quite effective in case they are located within the vicinity of a bed of oysters. The larva or spat, as it is called, floats in the water and attaches to the shell and grows, becoming an oyster. Each of these ways of propagating is recognized, and the oysters growing upon the shells so planted are held to be the personal property of the planter the same as if they had grown from the seed oysters planted. (Grace v. Willets, 50 N. J. Law, 414 .)

We, therefore, conclude that the requirements of the statute with reference to the marking out and occupying the territory

The judgment should be affirmed, with costs.

(dissenting). Every condition in a grant is either precedent or subsequent, whether it relates to-real or personal property. The condition relating to setting out buoys in the grant before us was a condition precedent, upon the performance of which the estate vested, but the condition relating to the maintenance of buoys thereafter was a condition subsequent, because it related to an estate or interest which had already vested. The claim that the condition as to maintenance was continuous is simply an admission that it was a condition subsequent, for whatever is continuous is present and cannot be past or precedent. ' A condition subsequent does not execute itself. Action was required by the state, as the grantor, by physical re-entry or judicial proceedings. Until then the grantee, by the necessary operation of the grant, was in lawful possession of the plat of land under water for the purpose of raising oysters. Uo one but himself had the right to use it for that purpose until the state interfered and dispossessed him for breach of the condition subsequent. The plaintiff, therefore, was a trespasser both in entering and cultivating, and the defendant had the right to harvest, although he did not plant, because the land was his for the purpose of the grant as against all but the state. While the equities are with the plaintiff, the law is with the defendant,

Cullen, Ch. J., Gray, Edward T. Bartlett and Chase, JJ., concur with Haight, J.; Vann, J., reads dissenting opinion ; Willard Bartlett, J., not sitting.

Judgment affirmed.