Inhabitants of East-Haven v. Hemingway

7 Conn. 186

• Court: Supreme Court of Connecticut
• Decided: July 15, 1828
• Status: Published

Opinion

Hosmer, Ch. J.

The controversy between the parties in this case, regards only the title of the land demanded.

The plaintiffs claim title under the charter of Charles II. in JQ02, f0 the colony of Connecticut; by a patent from the colo-ony, in 1685, to the town of New-Haven : and by a grant from the proprietors of this town.

There is no doubt concerning the competency of Charles II. to convey the land in question to the colony of Connecticut. A river, where the tide ebbs and flows, is an arm of the sea ; and the shore is that space of ground, which is between ordinary high water and low water mark. Hale De Jure Maris, pars I. c. 4. Harg. L. T. 12. The title of the king, prima facie, to all ports and arms of the sea to high water mark, and to the soil thereof, has long been established law ; and, as an undoubted consequence, it is settled, that he may grant the property of the soil between high and low water mark to a subject or corporation. Harg. L. T. 12. 17. 32. 5 Rep. 107. Dyer 93. Com. Dig. tit. Navigation A. B. Davies 56, 7. 149. 2 Anstr 605.

Whether on the legal construction of the charter of Charles II., the shores of navigable waters were granted to the colony of Connecticut, is a question admitting of controversy, on which it is unnecessary to enter. Clear 1 am, that they were not intended to be conveyed to the proprietors of New-Haven, by the act of 1685. By this instrument, the General Assembly of Connecticut, gave, granted, ratified and confirmed to the proprietors of New-Haven, “ all that parcel, or tract or tracts of land and premises,” butted and bounded in such manner as to comprise the river in question, “ together with all the meadows, pastures, swamps, upland and arable land, woods, islands, ponds, ways, waters, water-courses, havens, ports, rivers, fisheries, huntings, fowlings, mines, minerals, quarries, and precious stones,” within the aforesaid bounds and limits The suggestion that the act of the General Assembly was on\y confirmatory of a former grant in the town of New-Haven, I lay out of the question. By the operative words give, grant and ratify, it was not only a confirmation, but a grant. 1 Inst. sect. 515. 531. Shep. Touch. 83 4 Cruise’s Dig. 301. sect. 40. Jackson d. Klock & al. v. Hudson, 3 Johns. Rep. 375. Jackson d. Troup & al. v. Blodget, 16 Johns. Rep. 172. 178. At the same time, it must be admitted, that the principal, if not the sole object of the grant, was, to confirm to the proprietors the title to their lands purchased of the natives, which they had not legal capacity to sell; (3 Johns. Rep. 375. 6 Cranch. 87. 8 Wheat Rep. 543. 3 Kent’s Comm. 308. ;) and of which the proprietors had been in the quiet possession for many years. Vid. grant of 1685.

In expounding the legislative confirmation and grant, I adopt as the principle of construction the meaning and intention of the General Assembly, derived from a fair interpretation of their expressions. If it were necessary, perhaps, the rule respecting the exposition of royal grants, which are ever construed most favourably for the king, might with propriety be applied in construction of the act of 1685 ; it being matter of record, and proceeding from the bounty of the legislature. Plowd. 243. 5 Cruise’s Dig. 49. But this case does not require any strained principle of interpretation.

In the first place, it has been argued, that the shores of Dragon river were granted to the proprietors, the inhabitants of New-Haven, as they were included within the general boundaries of the grant. The contrary of this was decided in Palmer v. Hicks, 6 Johns. Rep. 133. on the principle, that a grant to a town extending on both sides of a navigable river, so far as the river extends, is for the purpose of jurisdiction only, and not with intention to convey the soil underneath the water, or below high water mark. It is not presumable, that it was the object of the grant to convey the public right of the colony in the shores of navigable rivers to the purchasers of lands from the natives, requesting the confirmation of their title. A right so important as this is to the public, cannot be considered as parted with, except by words so unequivocal, as to leave no reasonable doubt concerning the meaning. The constructiou advanced by the plaintiffs, is a novelty, and inconsistent with the conduct of the proprietors adjoining Dragon river, for more than a century. The action before the court is the first claim made by the plaintiffs to the shore of this river.

The plaintiffs have insisted, that theirs is the soil of the shore of Dragon river, by the express words of the grant to the proprietors oí New-Haven. After including the river within the general boundaries, a sweeping clause is added, whereby the meadows, pastures, &c. are granted, with the waters, water-courses, havens, ports, rivers, fishings, &c. within the bounds before alluded to, and all and singular the other commodities, privileges, franchises and hereditaments whatsoever thereunto belonging, or in any ways appertaining. This clause was intended to guard against any accidental omission. Cowp. 12. Much the greater part of it has not even a remote reference to the subject of controversy ; nor can I discern a wor& or expression, that has any essential bearing upon it. The terms “ waters,” “ water-courses,” “ ports,” “ havens,” “ rivers,” and “fishings,” approach the nearest; but it is unquestionably clear, that the words ports and havens are irrela-tive to the matter in question ; and that by either of the other expressions, the soil is never conveyed. Co. Litt. 4. b. Yelv. 143. 2 Bla. Com. 18. Shep. Touch. 97. Com. Dig. tit. Grant. E. 5. 1 Swift’s Dig. 74. They are adapted, at most, to the conveyance of a franchise.

By the expressions “ commodities, jurisdictions, royalties, privileges, franchises, preeminences, and hereditaments,” there is no extension of the grant to the soil in question. The word “ hereditaments” is the only one, on this point, meriting attention ; and it is perfectly incredible, that by a term so general, the General Assembly intended to convey the soil of a navigable river, which was unquestionably within the boundaries of the grant, and which, notwithstanding this, was not thereby conveyed. A word or expression precisely to denote a grant so much out of the common course, would have been employed ; and not a general term, which, on the construction contended for, would regrant all that had been granted, and give an exclusive right to the soil under all rivers, ports and havens within the exterior lines of the supposed conveyance.

I am sensible, that too much, already, has been said respecting the word “ hereditaments.” Taking the entire clause in which this term is found, it is unquestionable, that it was not inserted to convey the soil, but was used synonymously with some of the other general expressions recited. The act, in the first place, grants land within certain boundaries. It next, by a number of terms, supplies any accidental omission of the subjects intended to be granted. It then closes, by conveying “ the commodities, privileges, franchises and hereditaments, belonging to or any ways appertaining to any part or parcel” of the land, lying within the specified boundaries. The term “ hereditaments,” therefore, as well as the words “ commodities, privileges and franchises,” was never intended to convey the soil, but something appurtenant thereto ; for the thing conveyed by this term, is that “ which was belonging to or in any way appertaining” to the land granted.

To consider the other documents and testimony exhibited, in establishment of the plaintiffs’ title, is unnecessary The whole rests on the grant of 1685, and that failing, it is of course, that the plaintiffs’ title must fail also. The judgment below, therefore, is correct.

Whether the defendants have title is an enquiry of no importance, so far as this case is concerned. But as on this point the court have come to a result, 1 will briefly express their opinion

The General Assembly of the colony of New-Iiaven, in 1640, granted thirty-two lots of land to certain individuals, for the purpose of planting, to be allotted on the East side of Dragon river. The grant was located near the East bank of that river, in part over a highway, and bounded on high water mark, directly in contact with the shore now demanded. The defendants have traced their title to the land in question to one or more individuals to whom the grant was originally made. This brief statement of the facts is sufficient to estimate the force of the objections made to the defendants’ title.

In the first place, it was said, that the lots having been granted for the purpose of planting, the grant cannot enure to any other intent; and that they could not legally be laid out, in part on a highway, as they would, to this extent, be incapable of cultivation. If this view of the subject were sound, it would become a material question, whether any person except the grantors, could take advantage of the breach of contract; but it is -without any foundation.

The fallacy of the argument consists in supposing, that to the grant of the lots there was subjoined the condition or qualification that they should be planted, according to the modern acceptation of this term. If the actual planting of the land granted, was the condition on which the land was to be held, the omission of this act would be a breach of the contract, and the grantors might enter. A little reflection will shew, that the grant was not thus qualified.

In order to the construction of the grant or contract, it is necessary to go back to the age when it was made, with a view to ascertain what, at that time, was meant by the words planting and plantation, when applied to such a subject matter. We are now to investigate the meaning of expressions, used a century and a half since, which then had a peculiar intent, that has become obsolete. By the word to plant, was thcri intended, when applied to a tract of land, to settle, or to establish; and aplantation, the derivative of planting, denoted sometimes a colony, and sometimes a farm or cultivated estate. Thus, in the charter of 1662, the colony of Connecticut was called “ a plantation,” and its Northern boundary was the line of the “Massachusetts plantationand in the act of 1685, the township of New-Haven was empowered to manage its “ plantation affairs,” — meaning, undoubtedly, that it might act in all the concerns of the town.

When the General Court of the colony of New-Haven granted to thirty-two individuals a tract of land for the purpose of planting, no more was intended, than that it was conveyed to them that they might establish themselves thereon, and cultivate their settlement or small plantation, as they should think proper. Of consequence, they had as good right to locate the grant in part on a highway, from which they might derive accommodation, as they would have, at any subsequent period, to grant a right of passage over their lands.

The defendants are bounded on Dragon river at high-water mark ; and they claim, that they have legal right to occupy the shore in front of their land, and for commercial purposes to erect buildings upon it. Whether this position is correct, is the only remaining question in the case. I shall not recur to the various topics expatiated on, in the able and elaborate argument of the learned counsel on both sides, upon the matter in question. I place myself on ground more narrow, but perfectly satisfactory to my mind.

It was laid down as the law of this state, by Judge Swift, more than thirty years since, in the first volume of his System, (340. 341. 343) that all adjoining proprietors on navigable rivers have a right to the soil covered with water, as far as they can occupy it, i. e. to the channel, with the exclusive privilege of wharfing and erecting piers in front of their land, but with this qualification, that they do not impede the navigation of the water. By this expression I do not understand, that the proprietors alluded to were seised, but that they had a right of occupation, properly termed a franchise. 1 Swift’s Dig. 109.

In the case of Peck v. Lockwood, 5 Day 22, the plaintiff claimed title to the shore of navigable water, being flats between high and low water mark, by deeds, one bounding him South by the water, and the other Southerly by the cove. The action was trespass for the taking of shell-fish between high and low water mark ; to which the defendant justified, on the ground that the fishery was of common right; and the justification was sustained. In delivering the opinion of the court, Reeve, J. said : “ The defendant denies, indeed, thet the place in question was covered, by the plaintiff’s deeds, as set forth in the case stated. I shall lay this question out of the case, by only observing, that I entertain no doubt but that the flats were included in the plaintiff’s deed so as to convey to him the right of soil.” I cite this as the opinion of a respectable judge, and not of the court ; and although the expression is somewhat equivocal, I consider it as equivalent only to the established law, as declared by Judge Swift

That the law, as I have stated it, is not now to be questioned, the usage of the owners of land to high water mark, on navigable streams, in front of their land, to erect wharves, “ time whereof the memory of man runneth not to the contrary,” is conclusive evidencce. It stands on the same ground of general usage, which is at the foundation of the common law.

The right of individuals to use the soil of the shore, subject to the paramount rights of the public, so far as my information extends, has never, until now, been disputed. The exercise of it, in all our towns, bounded on navigable waters, and the enjoyment of estates under it, is known to every one. On the death of a land-owner to high water mark, his estate in the shore and the erections upon it, has descended to his heirs ; and thus estates have been uniformly settled. Angelí on Tide Waters, chap. VIII. p. 125 & seq.

On the part of the public, no objection has been made. The interest of navigation has been subserved, and the consequences have been altogether salutary.

It necessarily results, that the defendants have title to the land demanded ; and for this reason, as well for deficiency of title on the plaintiffs’ part, the judgment below was correct.

Peters and Lanman, Js. were of the same opinion. Brainard, J. having been absent when the cause was argued, and Daggett, J., having been of counsel in the cause, gave no opinion.

New trial not. to be granted.