By the Court,
Woodworth, J.
(After stating the pleadings and the evidence in the cause.) There is a written stipulation that this cause be decided on the merits. The pleadings are somewhat informal; but arising in a justice’s court, we are to consider the case in the same manner as if the plaintiff had stated all the facts of the case in bis declaration, and the defendant had demurred to the same. The justice gave judgment for the plaintiff. The defendant appealed to the common pleas, where the judgment of the justice was af [255]*255firmed. We are now called. on to determine whether the plaintiff is entitled to recover. The cause has been ably and most elaborately argued by the plaintiff in error and the counsel for the defendant. Several points raised by the plaintiff in error, I deem it unnecessary to consider, having arrived at a conclusion that the cause will depend on the decision of the following questions:
I. Has the plaintiff below shown a title in the town of Oyster-Bay to the premises in question 1
II. If he has, then in consequence of the by-law passed by the town, is the plaintiff entitled to sustain this action 1
I observe preliminarily, that on the first point it will not be necessary to enter upon an extensive field of argument, being of opinion that the principles involved in the decision of Gould v. James, (6 Cowen, 369,) do substantially decide the first question; but as this point is one of great importance, and some judges, particularly in a sister state, have expressed opinions at variance with the doctrine in Gould v. James, I will venture to enlage a little upon that case, and very briefly examine the principles upon which this cause must depend.
It is contended by the plaintiff, that the town has no right of property in the lands where the oysters were taken, because the right of soil beneath the water in the harbor of Oyster-Bay never passed by the terms of the patent.
It cannot be doubted, that when a patent or grant conveys a tract of land by metes and bounds, the land under water as well as other land will pass, if the land under water lies within the bounds of the grant. A contrary doctrine would exclude the lands under the water of lakes and streams not navigable. Scarcely a patent ever issued by this state, that does not include one or the other; and as far as I know, no question has ever been raised on this ground. The authority cited from 2 Black. Com. 19, does not bear out the position, but establishes the contrary. The author states, that if a man grants his lands, he grants all his mines, woods, waters, &c. as well as his fields and meadows; but by a grant of water merely, nothing passes but a right of fishing.
[256]*256It follows, therefore, if the grant was valid, the town of Oyster-Bay acquired not only a right and title to the land under water, but to the waters themselves comprised within the bounds of the patent. If the doctrine contended for by the plaintiff in error is well founded, there has been great error in the course pursued by the sovereign power of this state ever since it became a free and independent government. It is well known, that numerous grants have been made from time to time by the commissioners of the land office of lands under the waters of the Hudson, all which have proceeded on the ground that it was the undeniable right of the people of this state to make such grants. Until very lately, I have not understood that the power was questioned. It is here proper to observe, that this principle does not at all conflict with the doctrine laid down by writers on national law, who declare the air, running water, the sea, &c. are common property. (Vattel, b. 1, ch. 23, sec. 280, 287. Grotius, b. 2, ch. 2, sec. 3.) The same writers, however, admit that the various uses of the sea near its coast render it very susceptible of property; and rivers are susceptible of property, because confined in banks. Such places may be appropriated by the people to whom they belong and the productions within reach, in the same manner as the lands they inhabit. (Azuni, part 1, ch. 2, art. 1, sec. 3.)
If we examine the common law, it will be found to sanction this broad principle, “ that the king is the universal lord and original proprietor of all the lands in his kingdom, and that no man doth or can possess any pait of it, but what has mediately or immediately been derived as a gift from him to be held upon feudal services.” (2 Bl. Com. 62. 6 Com. Dig. D. 63.) The right of the king extends over all lands, as well such as are covered with water, as such as are hot. In England, it hath always been holden that the king is lord of the whole shore. He has the property tam aqua quam soli and all profits in the sea, and all navigable rivers, go also he has the property of the soil in all rivers which have the flux and re-flux of the sea, and not the lord of the manor adjoining, without grant or prescription ; and every arm of the sea or [257]*257navigable river, so high as the sea flows and re-flows, belongs to the king; but by grant or prescription, a subject may have the interest in the water and soil of navigable rivers. (5 Com. Dig. Navigation, A 3, & B.) Sir Matthew Hale, in his treatise de jure mavis, (Hargrave's Law Tracts,) considers this right of the king to consist in a right of jurisdiction and a right of ownership; that a subject may have this right either by the king’s grant, and this without question, or by custom or prescription. The king may grant fishing within a creek of the sea, or within some known precinct that hath known bounds, though , within the main sea, he may also grant that very interest itself, viz. a navigable river that is an arm of the sea, the water and soil thereof. (Sir M. Halis de Jure Maris, ch. 5, pl. 17.)
It thus appears, that by the common law, the king was seized of all the lands under the navigable waters of his realm, and entitled to grant and convey them. I do not find by any authority that this right was ever considered a usurpation. It is argued, however, that the exercise of such a power was' prohibited by magna charla. The 16th chapter of magna charla, (9 Henry III.) is supposed to contain the prohibition ; it is in the following words: “ Nullce riparias defendanlur de costero, nisi illa qum fuerrnt in defenso tempore Henrici regis, avi noslri, etper eadem loca et eosdem términos, sicut esse consueverunt tempore suo.” Lord Coke’s comments on this chapter are as follows : 66 That no owner of the property of rivers shall so appropriate or keep the river several to him, to deprive or bar others either to have passage or fish there, otherwise than they were used in the reign of king Henry II. This statute, saith the Mirror, is out of use, for many rivers are at present appropriated and fenced in, and put in defence, which used to be common to fish in and use, in the time of king Henry II.”
Even upon the supposition that lord Coke was not correct in saying the statute was out of use, I do not perceive any prohibition of the right claimed for the king; and, as far as I can discover, both before and since the reign of Charles II. from whom the duke of York derived his title, the right of the king to grant several fisheries and the lands under waters of [258]
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By the Court,
Woodworth, J.
(After stating the pleadings and the evidence in the cause.) There is a written stipulation that this cause be decided on the merits. The pleadings are somewhat informal; but arising in a justice’s court, we are to consider the case in the same manner as if the plaintiff had stated all the facts of the case in bis declaration, and the defendant had demurred to the same. The justice gave judgment for the plaintiff. The defendant appealed to the common pleas, where the judgment of the justice was af [255]*255firmed. We are now called. on to determine whether the plaintiff is entitled to recover. The cause has been ably and most elaborately argued by the plaintiff in error and the counsel for the defendant. Several points raised by the plaintiff in error, I deem it unnecessary to consider, having arrived at a conclusion that the cause will depend on the decision of the following questions:
I. Has the plaintiff below shown a title in the town of Oyster-Bay to the premises in question 1
II. If he has, then in consequence of the by-law passed by the town, is the plaintiff entitled to sustain this action 1
I observe preliminarily, that on the first point it will not be necessary to enter upon an extensive field of argument, being of opinion that the principles involved in the decision of Gould v. James, (6 Cowen, 369,) do substantially decide the first question; but as this point is one of great importance, and some judges, particularly in a sister state, have expressed opinions at variance with the doctrine in Gould v. James, I will venture to enlage a little upon that case, and very briefly examine the principles upon which this cause must depend.
It is contended by the plaintiff, that the town has no right of property in the lands where the oysters were taken, because the right of soil beneath the water in the harbor of Oyster-Bay never passed by the terms of the patent.
It cannot be doubted, that when a patent or grant conveys a tract of land by metes and bounds, the land under water as well as other land will pass, if the land under water lies within the bounds of the grant. A contrary doctrine would exclude the lands under the water of lakes and streams not navigable. Scarcely a patent ever issued by this state, that does not include one or the other; and as far as I know, no question has ever been raised on this ground. The authority cited from 2 Black. Com. 19, does not bear out the position, but establishes the contrary. The author states, that if a man grants his lands, he grants all his mines, woods, waters, &c. as well as his fields and meadows; but by a grant of water merely, nothing passes but a right of fishing.
[256]*256It follows, therefore, if the grant was valid, the town of Oyster-Bay acquired not only a right and title to the land under water, but to the waters themselves comprised within the bounds of the patent. If the doctrine contended for by the plaintiff in error is well founded, there has been great error in the course pursued by the sovereign power of this state ever since it became a free and independent government. It is well known, that numerous grants have been made from time to time by the commissioners of the land office of lands under the waters of the Hudson, all which have proceeded on the ground that it was the undeniable right of the people of this state to make such grants. Until very lately, I have not understood that the power was questioned. It is here proper to observe, that this principle does not at all conflict with the doctrine laid down by writers on national law, who declare the air, running water, the sea, &c. are common property. (Vattel, b. 1, ch. 23, sec. 280, 287. Grotius, b. 2, ch. 2, sec. 3.) The same writers, however, admit that the various uses of the sea near its coast render it very susceptible of property; and rivers are susceptible of property, because confined in banks. Such places may be appropriated by the people to whom they belong and the productions within reach, in the same manner as the lands they inhabit. (Azuni, part 1, ch. 2, art. 1, sec. 3.)
If we examine the common law, it will be found to sanction this broad principle, “ that the king is the universal lord and original proprietor of all the lands in his kingdom, and that no man doth or can possess any pait of it, but what has mediately or immediately been derived as a gift from him to be held upon feudal services.” (2 Bl. Com. 62. 6 Com. Dig. D. 63.) The right of the king extends over all lands, as well such as are covered with water, as such as are hot. In England, it hath always been holden that the king is lord of the whole shore. He has the property tam aqua quam soli and all profits in the sea, and all navigable rivers, go also he has the property of the soil in all rivers which have the flux and re-flux of the sea, and not the lord of the manor adjoining, without grant or prescription ; and every arm of the sea or [257]*257navigable river, so high as the sea flows and re-flows, belongs to the king; but by grant or prescription, a subject may have the interest in the water and soil of navigable rivers. (5 Com. Dig. Navigation, A 3, & B.) Sir Matthew Hale, in his treatise de jure mavis, (Hargrave's Law Tracts,) considers this right of the king to consist in a right of jurisdiction and a right of ownership; that a subject may have this right either by the king’s grant, and this without question, or by custom or prescription. The king may grant fishing within a creek of the sea, or within some known precinct that hath known bounds, though , within the main sea, he may also grant that very interest itself, viz. a navigable river that is an arm of the sea, the water and soil thereof. (Sir M. Halis de Jure Maris, ch. 5, pl. 17.)
It thus appears, that by the common law, the king was seized of all the lands under the navigable waters of his realm, and entitled to grant and convey them. I do not find by any authority that this right was ever considered a usurpation. It is argued, however, that the exercise of such a power was' prohibited by magna charla. The 16th chapter of magna charla, (9 Henry III.) is supposed to contain the prohibition ; it is in the following words: “ Nullce riparias defendanlur de costero, nisi illa qum fuerrnt in defenso tempore Henrici regis, avi noslri, etper eadem loca et eosdem términos, sicut esse consueverunt tempore suo.” Lord Coke’s comments on this chapter are as follows : 66 That no owner of the property of rivers shall so appropriate or keep the river several to him, to deprive or bar others either to have passage or fish there, otherwise than they were used in the reign of king Henry II. This statute, saith the Mirror, is out of use, for many rivers are at present appropriated and fenced in, and put in defence, which used to be common to fish in and use, in the time of king Henry II.”
Even upon the supposition that lord Coke was not correct in saying the statute was out of use, I do not perceive any prohibition of the right claimed for the king; and, as far as I can discover, both before and since the reign of Charles II. from whom the duke of York derived his title, the right of the king to grant several fisheries and the lands under waters of [258]*258navigable rivers and arms of the sea, has, in England, been considered as well settled.
Sir Matthew Hale, de jure marts, pi. 7, has explained the statute of magna charla, chapter 16, “ that before the statute it was frequent for the king to put as well fresh as salt rivers in defenso for his recreation, that is, to bar fishing and fowling in a river, till the king had taken, his pleasure or advantage of the writ or precept de defensiane riparia},” &c. The object of the statute seems to have been to prevent the king from putting any rivers in, defenso for his recreation, except such as had been put in defence in the time of Henry II., his grandfather, and was intended to prohibit the exercise óf his ancient prerogative for his own personal pleasure, but not applying to the owners of the banks of rivers or any other individuals. Notwithstanding this statute, the king, although restricted as to the occupancy of rivers for his pleasure, was at liberty to grant the land, under the rivers and navigable waters in his realm, at his will and pleasure. Without going into a specification, I only observe, that several grants are stated by Sir Matthew Hale, subsequent to magna charla. (Hale de Porlibus Maris, pl. 51, 68, 109, 110.)
"The case in 1 Modern, 106, was decided by Lord Hale. He there says, “ That in an action of trespass for fishing in a river that flows and re-flows, and in an arm of the sea, it is prima facie a good justification to say, that the locus in quo is braehium maris in quo unusquisqúe subjeclus dom. Regis habet et habere 'debet liberum piscariam, and if any one will appropriate a right to himself, the proof lieth on his side.” This prima facie right is undoubted, and may be exercised until an individual proves he has the right, which may be done by grant or prescription. Such is evidently the language of this case. It is true that in Warren v. Matthews, (1 Salk. 357, and 6 Mod. 73, the same case,) where one claimed solam piscariam by grant from the crown, there is this dictum of Lord Holt: “ The subject has a right to fish in all navigable rivers, as he has to fish in the sea.” I have looked at the cases referred to in the margin, and do not find that they support the doctrine. Indeed, one of the cases (Davies, 57) decides that the king may grant the fran[259]*259ehise of a fishery in a navigable river. As the cases in 6 Mod. and 1 Salk, are very briefly reported, and are not supported by the authorities cited, there is good ground to believe the case itself is mis-reported.
In 4 Burr. 2160, Carter v. Murcot, Lord Mansfield’s remarks are in accordance with the view I have taken : he observes, “ In navigable rivers the 'fishery is common ; it is prima facie in the king, and is public. If any one claims it exclusively, he must show a right. If he can show a right by prescription, he may then exercise an exclusive right, though the presumption is against him unless he can prove such right.” And again, that an exclusive privilege of fishing, although it be in an arm of the sea, is consistent with all the cases. Such a right shall not be presumed, but the contrary prima facie ; but it is capable of being proved.
Justice Yates remarks on the casein Davies’ reports, which is referred to in support of Lord Holt’s opinion : He says it is agreeable to the law there advanced, that the crown may grant a several fishery in a navigable river where the sea flows and re-flows, and in an arm of the sea.
I deem it unnecessary to cite other authorities. Many more might be adduced, but enough has been shown to satisfy my mind that the patent of Bir Edmond Andross, emanating mediately from Charles the second, did convey to the inhabitants of Oyster-Bay, all the lands under water within the bounds of that grant, together with the exclusive right of fishing in the waters within the same. The case of Gould v. James, in 6 Cowen, which decides that a several fishery in an arm of the sea where the tide ebbs and flows, may be derived from a grant or prescription, appears to be supported by the concurrent authority of the English law.
The second question may be disposed of in few words. The by-law contains three sections: 1. That no person, not an inhabitant of Oyster-Bay, be allowed to take oysters in the creeks or harbors, under the penalty of $12,50. 2. That no person be allowed to take oysters, but from the 1st November to March I. 8. Certain persons are named to receive the fines to their own use.
[260]*260The plaintiff in error contends, that the by-law is void on several grounds: 1. That the town cannot prohibit, but may regulate; 2. That the penalty is given to individuals. A recovery may be had under the second section, which is clearly a regulation as to the times of taking oysters ; and gives the penalty generally without specifying for whose use. If the objection, urged as to the prohibition and appropriation of the penalty were fatal as to the 1st and 3d sections, still the 2d might be valid; for a by-law may be good in part and void for the rest. (2 Kyd on Corp. 155.)
This by-law was undoubtedly made under the 5th section of the act to amend the act relative to the "duties and privileges of towns, passed March 19, 1813. (Statutes, vol. 6, b. 207.) By this section, the individuals of every town are authorized to make such prudential rules and regulations as they judge necessary and convenient for the better improving their common lands in tillage, pasturage, or any other reasonable way, and protecting the samo from any trespass; for directing the use and management, and the times and manner of using their common lands and meadows, and the other commons, and impose penalties on the offender, whether he resides within the town or not, not exceeding $12,50; and the penalties so recovered shall be applied in such manner as the inhabitants of the town shall direct. This act extended to the regulation of the common property of the town, of which the premises in question are presumed to be a part. The inhabitants for whose benefit the grant was made, have treated it as such in the by-law, and there is no evidence that any individual lias an estate in severalty in the same.
The legislature have at various times passed laws regulating fisheries, and. declaring certain streams public highways. This right is not inconsistent with the claim of an individual, that he owns the fishery, or the soil under the water. In Cooper v. Cummings, (20 Johns. R. 90,) chief justice Spencer observes, “ These will prove nothing, for the legislature has confessedly the right of regulating the taking of fish in private rivers, and do every year pass laws for that purpose, [261]*261as to rivers not navigable in any sense, and which ¿re unquestionably private property.”
It is admitted, that notwithstanding a grant to an individual, the public have an interest in the waters granted. Lord Hale has accurately defined it, (de jure maris, p. 22.) Speaking of the private interest of the subject, he observes, “ this interest or right must be so used, as that it may not occasion a common annoyance to passage of ships or boats; for the jus privatum must not prejudice the jus publicum, wherewith public rivers or arms of the sea are affected for public use. 2. That the right a subject hath in any public or private river or creek, fresh or salt, is subject to the laws for the conservation of fish or fry.” The individual right, then, is subject to the interference of the legislature, to the extent before mentioned, but no farther. Such laws, therefore, are no invasion of the right of the individual; his.right is not absolute and unlimited over the property granted, but qualified by these implied reservations.
But it is said that the by-law of a town or a corporation is void, if the legislature have regulated the subject by law. If the legislature have passed a law, regulating as to certain things in a city, I apprehend the corporation are not thereby restricted from making further regulations. Cases of this kind have occurred, and never been questioned on that ground; it is only to notice a case or two out of many. The legislature have imposed a penalty of $1, for servile labor on Sunday the corporation of New-York have passed a by-law, imposing the penalty of $5 for the same offence. As to storing gunpowder in New-York, the legislature and corporation have each imposed the same penalty. Suits to recover the penalties have been sustained under the corporation law. It is believed that the ground has never been taken, that there was a conflict with the state law. One of these cases is reported in 12 Johns. R. 122. The question was open for discussion, but not noticed. If it be admitted, that when the legislature had passed a law regulating the fishery, it would not be competent for the town to pass a bylaw, the answer here is, that the legislature have not legisla[262]*262ted on the case before us; for the act (4 vol. L. 248) whiefe prohibits persons residing out of this state from taking shell or other 'fish in any of the waters of this state, does not apply, Here it is admitted that the plain tiff in error is a citizen of this state. There being then no conflict of regulation, it will scarcely be contended, that after the legislature in 1823 had expressly delegated to the towns the power of regulation, the by-law passed in pursuance of it is a nullity. Upon the whole case, I am of opinion that the judgment of the court below be affirmed.