Opinion
June 10, 1921.
William F. Bleakley, for the appellant.
Frank M. Avery [ Earl A. Darr with him on the brief], for the respondent.
Present — BLACKMAR, P.J., MILLS, RICH, PUTNAM and JAYCOX, JJ.
Regarding few questions should the rule of stare decisis be more faithfully observed than on the interpretation of crown grants involving shore and water rights. More than private rights are often concerned; and where a construction has been deliberately adopted and declared, it should not be disturbed save by the court of last resort. Colonial grants on Long Island have been adjudged to include the lands under bays and harbors. ( Robins v. Ackerly, 91 N.Y. 98; Tiffany v. Town of Oyster Bay, 209 id. 1; Grace v. Town of North Hempstead, 166 App. Div. 844; affd., 220 N.Y. 628.) In this boundary line the words "Coves bayes and Necks of Land" more clearly describe and convey indentations in a river's course than did the formula "Havens, Harbors, Rivers, Creekes, Woodland, Marshes" in Grace v. Town of North Hempstead ( supra), or the phrase "including all the Necks of Land and Islands within the aforesd described Bounds and Limmitts" in Tiffany v. Town of Oyster Bay ( supra). To appellant's contention that this grant, being to an individual, should have a strict construction, there are two answers: First. This grant is in a special form. It was of old held that in a suit to revoke a crown patent, the recitals of facts not within the knowledge of the government are regarded as the suggestions of the patentee. The King is not estopped by a recital of his patent, but the law will rather adjudge him to be deceived. ( Case of Alton Woods, 1 Coke, 43.) So Blackstone says that because a royal grant made at the suit of the grantee is to be taken most beneficially for the king, "it is usual to insert in the king's grants, that they are made, not at the suit of the grantee, but `ex speciali gratia, certa scienta, et mero motu regis' (by the special favor, certain knowledge, and mere motion of the king); and then they have a more liberal construction" (Comm. bk. II, p. 347), which is the formula of this Van Cortlandt grant. Second. Such crown grants have long received this liberal construction in New York even in a controversy that aroused great public feeling ( People v. Van Rensselaer, 9 N.Y. 291, 322), and later in a royal grant of lands under tidal waters. ( DeLancey v. Piepgras, 138 N.Y. 26.) We are familiar also with the grant of appurtenant rights of "fishing, fowling, hunting and hawking." But here a new and significant clause follows this stereotyped enumeration of rights of sport — "and the fishing in Hudson's river, so far as the bounds of the said lands extends upon the same." The franchise of "ferries" involves more than a mere upland right. These terms taken together aptly express a boundary along the necks or points of land so as to include bays and coves as part of this manor. And this construction is not against the rule in Sage v. Mayor ( 154 N.Y. 61), which dealt with the New Harlem charter from Governor Nichols. This granted lands "bounded on one side by the `Harlem River or any part of the said river on which this land' (of Manhattan) `doth abut * * * together with all the soils, creeks, quarries, woods, meadows, pastures, marshes, waters, lakes, fishing, hawking, hunting and fowling and all other profits, commodities, emoluments and other hereditaments belonging to the said lands and premises within the said bounds and limits set forth, belonging or in anywise appertaining.'" (pp. 62, 63.) This reference to the bounds and limits was held not to extend the grant out into the river, or beyond its western bank. But "Meadows," "pastures" and "marshes" there used describe land. Coves, bays and inlets are to describe parts of the river and the lands beneath. Furthermore the right to fish in this river is expressly granted so far as the bounds extend "upon" the river — which seems to me conclusive.
Hence, I advise that the judgment be affirmed, with costs.
Judgment unanimously affirmed, with costs.