Opinion
June, 1904.
John P. Kellas, for the appellant.
Willard J. Saunders and Rollin B. Sanford, for the respondent.
On an appeal from a former judgment in favor of the defendant the judgment was reversed and this court granted a new trial in the County Court. On the new trial the case was submitted to a jury and a verdict was rendered in favor of the defendant, upon which judgment was entered, and from which judgment this appeal is taken.
It is unnecessary on this appeal to consider the questions discussed in the opinion on the former appeal. ( Rockefeller v. Lamora, 85 App. Div. 254.) This court then said: "The Legislature could not authorize the State Fish Commissioners to enter upon a man's private fishery without his knowledge and consent, and deposit therein fish hatched by the State, and thus convert his property to public use and destroy his private rights. This would be the taking of private property for public use without just compensation. * * * The owner of a stream could doubtless dedicate it to the public use as he could his lands to a public highway, but this imports consent on his part and a bargain entered into between him and the public authorities. * * * Our interpretation of the statute is that the stocking of streams and waters, the beds and adjacent lands of which are owned by an individual or corporation, in order to give the right to the public to fish therein, must be with the consent of the owner or one having a right of fishery therein, and that only the particular stream, lake or pond thus stocked is so made public, and that such stocking does not open to the public streams to which they may be tributary, and that this stocking of such a stream, by the State and the owners above or below, does not have the effect of opening to the public that part of the stream situated on lands of an owner who has not consented to such dedication, and that the public is not permitted to follow the migrations of the fish and take them in that part of the stream on private lands without the owner's consent."
There is no dispute about the plaintiff's ownership and possession of the land and water upon which the defendant trespassed nor that the plaintiff had complied with the provisions of the statute (Forest, Fish Game Law [Laws of 1900, chap. 20], art. 11, as amd. by Laws of 1900, chap. 538, and Laws of 1901, chap. 543) for the purpose of establishing his lands and waters as a private park, nor that the defendant on three different occasions in the months of April and May, 1902, went across the plaintiff's lands included in his said private park and fished in a stream thereon and took fish therefrom after he was expressly forbidden to so enter and fish thereon. The defendant's contention is that the plaintiff is not entitled to the benefit of said statute authorizing the laying out of his lands and waters as a private park and the devotion of the same to the propagation or protection of fish, birds or game by reason of the fact that waters included in said private park had been theretofore stocked with fish by the State of New York.
It is not claimed that the lands and waters included in said private park have been stocked with fish by the State at the request or with the consent of the plaintiff. The lands and waters so included in said private park were purchased by the plaintiff in three separate tracts, each tract including a large number of acres. When waters are stocked with fish by the State it takes away from the owner thereof certain property rights provided by said statute and results in a charge, to run with the land, which materially affects the owner's interest therein and the value of said lands and waters. The consent to such charge is bounded by the extent of the ownership of the person giving the consent. Within the bounds of the lands and waters owned by the person giving the consent there may be a question as to the extent of the waters included within the consent and as to one stream or portion of the stream being reasonably near to the waters so stocked with fish by the State. A question cannot arise as to whether another stream or a distinct portion of the same stream is reasonably near to waters stocked with fish by the State when such other stream or distinct portion of the same stream is beyond the boundaries of the lands and waters owned by the person giving his consent to such stocking by the State. The charge runs with the land and not with the person and it is fixed at the time the consent is given and the waters are stocked in pursuance thereof. It cannot be extended to other lands and waters simply by reason of the fact that the grantee of the waters stocked with fish by the State and of adjoining or other lands and waters is one and the same person. The lands and waters upon which the defendant trespassed were wholly lands and waters purchased by the plaintiff of the Ducey Lumber Company. It follows, therefore, that all of the evidence included in the record relating to lands purchased by the plaintiff of other persons is immaterial for the purpose of showing that they are reasonably near to the lands purchased of the Ducey Lumber Company.
It is claimed by the defendant that the Ducey Lumber Company consented to persons who were strangers to their title stocking the waters upon lands so owned by it with fish furnished at the expense of the State. The evidence shows that one Ducey, who it is alleged was the president of the Ducey Lumber Company, assented orally to certain persons stocking the St. Regis waters with trout. Assuming that the waters included in said private park at the place where the defendant fished were so stocked pursuant to said consent it becomes important to determine whether the corporation was bound by such assent so as to thereby create a charge on its lands even in the hands of a bona fide purchaser from it.
The certificate of incorporation shows that the Ducey Lumber Company was organized "for the purpose of carrying on and conducting the manufacture of lumber, lath, shingles, shooks, ties, pickets, charcoal, wood pulp and other products of the forest."
The by-laws of the corporation provide: "The notes, drafts, and other obligations of the Company, as well as its checks on bank shall be signed by the President; he shall also sign and execute all contracts, leases, deeds, or other written instruments relating to the sale or conveyance of any real estate belonging to the Company and affix the corporate seal thereto. The President is also authorized and empowered to make all contracts for the corporation, relating to the manufacture and sale of lumber, and all business carried on by the Company, including sales of its real estate, or contracts to sell or lease the same."
The office of president does not in itself confer power to bind a corporation or control its property. The president's power as an agent must be sought in the organic law of the corporation, or in a delegation of authority from it directly or through its board of directors formally expressed or implied from a habit or custom of doing business. (10 Cyc. 903.)
The stocking of waters with fish furnished at the expense of the State was not one of the purposes for which said corporation was organized; the consent not being within the purposes of the corporation or in the usual course of its business or incidental thereto, the president had no power to make it without express authority. Said by-law constitutes the only evidence relating to the authority of the president. The consent was not a contract relating to the manufacture and sale of lumber or to any business carried on by the company. The statements claimed to have been made by Mr. Ducey to the persons who desired to obtain from the State fish to be placed in certain waters of the Adirondacks do not purport to have been made by him on behalf of the Ducey Lumber Company. His consent was voluntary, gratuitous and personal. He did not assume to bind the corporation and could not have done so in a matter so wholly foreign to the ordinary transactions of the business of the corporation without express authority.
The documentary evidence received by the County Court is not sufficient to show that the waters of the plaintiff on lands other than those purchased of the Ducey Lumber Company have ever been stocked by the State. The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.