THE DECISIONS OF THE Supreme Court of the United States, AT OCTOBER TERM, 1893. (Authenticated copy of opinion record strictly followed, except as to such reference words and figures as are inclosed in brackets.] THEODORE LOWNDES, Piff. in Err., v. THE BOARD OF TRUSTEES OF THE TOWN OF HUNTINGTON. (See S. C. Reporter's ed. 1-32.) State decisions-practice in Federal courts— land used for oyster beds-state rule as to real property-descriptions of boundaries-land under water-adverse possession-license, how revoked. 1. The settled rule of decision in the courts of the state is controlling as to the form of the action, the title of the plaintiff to submerged lands and the special defenses of the defendant. 2. The practice, forms, and mode of proceedings in actions at law in the Federal courts are required to conform as nearly as may be to those in the state courts. 3. In New York one who claims the right to occupy submerged land for the cultivation of oysters, and exercises acts of ownership there NOTE. As to jurisdiction of Federal over state courts; necessity of Federal question; what constitutes Federal question, see note to Hamblin v. Western Land Co. 37: 267. As to what necessary to constitute adverse possession; requisites of, see note to Ricard v. Williams, 6: 398. As to occupancy necessary to constitute adverse possession, see note to Ewing v. Burnet, 9: 624. upon and claims an interest therein, is a proper defendant in an action for the possession of the premises. 4. As to the rights attaching to lands within the territorial limits of the state, whatever has become a settled rule of real property by the decisions of its courts is conclusive on this court. 5. If the language in the description of boundaries is clear, that should control, and should not be narrowed and limited by any mere ambiguity in the subsequent statement of the appurtenances to the grant. 6. In a grant of land under water, the term "the sound," named as a boundary, means the body of water known by such name, and does not include waters opening into or connected therewith. 7. In order to create a title springing out of pos session, such possession must be adverse and exclusive. 8. An implied license from the state to use land under water for oyster cultivation is subject to revocation, and is revoked by a notice served upon the licensee by one to whom the state has ceded all its rights. 9. The title to the submerged lands in Huntington Bay passed to the town of Huntington by the colonial grants to that town and by the law of As to misdescription in deeds; when it avoids them; when does not, see note to Wallace v. Penfield, 27: 147. As to what is sufficient delivery of a deed to pass the title, see note to Tompkins v. Wheeler, 10: 903. As to natural objects or needle; which governs in survey of land, see note to Newsom v. Pryor, 5: 382. New York of May 10, 1888, at least for the pur- der public navigable waters, is, in a high depose of oyster cultivation. gree, unusual and contrary to ordinary public policy. No conveyance should be held to have [No. 117.] Argued Dec. 18, 19, 1893. Decided April 16, such an effect unless it appear by clear and 1894 IN ERROR to the Circuit Court of the United States for the Eastern District of New York, to review a judgment in favor of plaintiff, the town of Huntington, against Theodore Lowndes, defendant, in an action of ejectment, to recover lands lying under water in Hun. tington Bay, in the state of New York. Affirmed. Statement by Mr. Justice Brewer: unambiguous language that such was the intention. Charles River Bridge Proprs. v. Warren Bridge Proprs. 36 U. S. 11 Pet. 426 (9: 776); Martin v. Waddell, 41 U. S. 16 Pet. 369 (10: 997); Rice v. Minnesota & N. W. R. Co. 66 U. S. 1 Black, 369 (17: 150); Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659 (24:1036); Lansing v. Smith, 4 Wend. 9, 21 Am. Dec. 89; Chenango Bridge Co. v. Binghamton Bridge Co. 27 N. Y. 87, 70 U. S. 3 Wall. 51 (18: 137). The act of cession of 1888 by the state of New York is wholly ineffective as a support to the present suit. This is an action of ejectment, and can be maintained only when the plaintiff is entitled to the possession of the property. As against all persons, except the state of New York, therefore, the plaintiff in error had a perfect legal right to the exclusive occupation and enjoyment of his bed. Fleet v. Hegeman, 14 Wend. 42; Decker v. Fisher, 4 Barb. 592; Lowndes v. Dickerson, 34 Barb. 586; People v. Haven, 121 N. Y. 316. On September 1, 1888, the defendant in error commenced an action in the supreme court of the state of New York for the county of Suffolk. Its complaint alleged that "the trustees of the freeholders and commonalty of the town of Huntington and their successors" were a body corporate, created and incorporated by and under three charters granted, the first by 2] *Richard_Nicholls, Governor General under James, Duke of York, of all his territories in America, and dated November 30, 1666; the second by Thomas Dongan, Governor General of the Province of New York The law of New York (Penal Code, § 431) under James the Second, King of England, making it a misdemeanor for non-residents and dated August 2, 1688; and the third by either to plant or gather oysters in the waters Benjamin Fletcher, Governor General under of that state without the consent of the owner, William and Mary, and dated October 5, 1694. | is applicable to any of the waters of the state It also alleged that the plaintiff was the lawful successor of the said trustees, etc., and as such, and by virtue of said patents and charters, and the laws of the state of New York, was the lawful owner and seised in fee, subject to the right of navigation, of a certain described tract of land of about 300 acres, lying under water in Huntington Bay, in the town of Huntington, and that, as such owner, it was entitled to the exclusive possession and use thereof for oyster cultivation. The complaint further charged that the defendant had theretofore exercised, and still exercised, acts of ownership upon said lands, and claimed title thereto and a right to the exclusive possession thereof; that he had planted, or caused to be planted, oysters thereon, and unlawfully withheld the lands from the plaintiff. held in private ownership. It is extremely questionable whether it was designed, or should be held, to extend to waters owned by the state. The observation of Bradley, J., in the case of People v. Lowndes, 130 N. Y. 463, if intended to include the state as being an owner, was not necessary to the decision, and was not to a point definitely argued. Plaintiff in error prepared his bed and began his planting as early as 1867; he was a resident of the state until 1872, and, of course, no question could be made as to the perfect acquisition of his right. It was not the design of this section 441 of the Penal Code to revoke the license and permission under which the plaintiff in error had acted, upon the strength of which he had expended much labor and money, and to destroy the useful business which he had been carrying on. It was no part of the purpose of this enact ment to accomplish any revocation of prior There was also an allegation of notice to quit, and a prayer for judgment against the defendant for the immediate and exclusive control of the premises. The defendant, who was a citizen of the state of Connecticut, hav-consent. ing been brought in by publication, removed The act is capable of a reasonable constructhe case to the Circuit Court of the United tion and that is to apply it to the future and States for the Eastern District of New York. not to the past; to make the future establishIn that court he filed an answer denying ment of beds unlawful, leaving those already plaintiff's title, and pleading possession since established unaffected. 1866. Thereafter, on the 14th of November, The unnecessary and unwise discrimination 1889, the case was tried before a jury, and in this act between residents and non-residents at the close thereof, the court directed a ver- in respect to the use of the bottom of public dict for the plaintiff. On the verdict a judg-waters for the cultivation of oysters was abroment was duly rendered, and to reverse such judgment this writ of error was sued out. gated by chapter 321 of the Laws of 1893. Messrs. David B. Hill, Thomas Young, C. R. Street and N. 8. Ackerly, for defendants Huntington Bay is within the limits of the Mr. James C. Carter for plaintiff in er-in error: ror: A grant by the sovereign power of lands un- patents. Robins v. Ackerly, 91 N. Y. 98; North Hemp-exclusive fisheries since Magna Charta, and stead v. Thompson, 115 N. Y. 635. these grants have been sustained. The title to all lands embraced within the Hamilton v. Donegall, 3 Ridgway, Parl. discovered territories vested in the king, and Cas. 276, 328; Carter v. Murcot, 4 Burr. 2163; this title included as well the rivers and seas Lord Fitzwalter's Case, 1 Mod. 105; Oxford v. within the international limit as the dry lands. Richardson, 4 T. R. 439; Seymour v. Courte Johnson v. McIntosh, 21 U. S. 8 Wheat. 595 nay, 5 Burr. 284; Peers v. Lucy, 4 Mod. 356; (5: 694); Brookhaven Trustees v. Strong, 60 N. Somersett v. Fogwell, 5 Barn. & C. 875; Carson Y. 72; People v. Van Rensselaer, 9 N. Y. 291. v. Blazer, 2 Binn. 476, 4 Am. Dec. 463; CoolThese waters seem to have been called a har-idge v. Williams, 4 Mass. 144; Stoughton ▼. bor in early papers. But haven is a more Baker, 4 Mass. 522, 3 Am. Dec. 236; Com, v. proper term as applies to these waters. Charlestown, 1 Pick. 180, 11 Am. Dec. 161; Reade v. Commercial Ins. Co. 3 Johns. 357, 3 Am. Dec. 495; People v. Platt, 17 Johus. 195, 8 Am. Dec. 332; Hooker v. Cummings, 20 Johns. 90, 11 Am. Dec. 249; Chalker v. Dickinson, 1 Conn. 384, 6 Am. Dec. 250; Munson v. Baldwin, 7 Conn. 168; Adams v. Pease, 2 Conn. 481; Op. Atty. Gen. 1 Har. & McH. 564; Johnson v. McIntosh, 21 U. S. 8 Wheat. 577, 597 (5: 689, 694); James v. Gould, 6 Cow. 376; 5 Cruise, Dig. p. 45, § 10, title 54, King's Grant; Com. Dig. 108, title, Navigation. Hale, De Portibus Maris; Angell, Tide Waters, 38; Rex v. Bishop of Rochester, 1 Mod. 195. Distinct words of relation in the king's grant are good to pass away anything. Rex v. Bishop of Chester, 5 Mod. 301. The patents convey a good title to the lands under these waters, subject to a full and free right of navigation. Rogers v. Jones, 1 Wend. 238, 19 Am. Rep. 493; Brookhaven Trustees v. Strong, 60 N. Y. 72; Hand v. Newton, 92 N. Y. 88; Southampton Trustees v. Mecox Bay Oyster Co. 116 N. Y. 1; People v. Van Rensselaer, 9 N. Y. 291; Furman v. New York, 10 N. Y. 567; Towle v. Remsen, 70 N. Y. 308; Langdon v. New York, 93 N. Y. 134; New York v. Hart, 95 N. Y. 443. It is the rule of the United States Supreme Court in cases involving the question of title to lands wholly within a state to follow the decisions of the highest court of the state when those decisions have been uniform. Gage v. Pumpelly, 115 U. S. 454 (29: 449); Bondurant v. Watson, 103 U. S. 281 (26: 447); Suydam v. Williamson, 65 U. S. 24 How. 427 (16: 742); Jackson v. Chew, 25 U. S. 12 Wheat. 162 (6: 586); Beaureguard v. New Orleans, 59 U. S. 18 How. 497 (15: 469). The decisions of the highest courts of New York have been uniform as to the construction of the colonial act of legislature confirming these grants and as to the construction of the constitution, and consequently should be binding on the United States courts. Elmwood v. Marcy, 92 U. S. 289 (23: 710); Indianapolis & St. L. R. Co. v. Vance, 96 U. S. 594 (24: 825). The colonial grants vest in the trustees of the town an exclusive oyster fishery. Lord Fitzwalter's Case, 1 Mod. 106. The three several patents of the town, in express words, convey to the town "all fishing, hawking, hunting," etc., within the boundaries prescribed. That the intent was to convey to the town an exclusive fishery, we think there can be no reasonable doubt. A prescription for a common fishery therein, as appurtenant to an estate, is bad. Ward v. Cresswell, Willes, 265; Angell, Tide Waters, 274. Magna Charta did not restrain the king from granting exclusive fisheries to his subjects, as he had hitherto been accustomed to do. 2 Bl. Com. 39; Cruise, Dig. 261, title Franchise; Somersett v. Fogwell, 5 Barn. & C. 875; Case of Sewers, 6 Coke, pt. 13, pp. 35, 36; Car ter v. Murcot, 4 Burr. 2162; 1 Gt. Britain & Ireland Stats. 579, 718; 2 Gt. Britain & Ireland Stats. 213, 242, 644, 688. The king has made grants of several and The principle that the colonies might change the common law of England in respect to rights of this nature has never been denied. Corfield v. Coryell, 4 Wash. C. C. 384. A grant of the soil with the right of a sev. eral tishery, in an arm of the sea by a colonial governor, ratified and confirmed by act of a colonial assembly, conveyed an exclusive right to the oyster fisheries in the waters covered by the grant. Brookhaven Trustees v. Strong, 60 N. Y. 72; Rogers v. Jones, 1 Wend. 238, 19 Am. Dec. 493; People v. Lowndes, 130 N. Y. 455. The statute (Penal Code, § 441) was passed with the view to discriminate between those persons who were and those who were not residents of the state. This is a lawful exercise of legislative power over the common property of the citizens of the state. McCready v. Virginia, 94 U. S. 391 (24: 248). The plaintiff in error has failed to show any right to continue to use these lands by adverse possession or by reason of any easement claimed to be gained therein. Livingston v. Peru Iron Co. 9 Wend. 511; Smith v. Burtis, 9 Johns. 180; Jackson v. Johnson, 5 Cow. 74, 15 Am. Dec. 433; Hoyt v. Dillon, 19 Barb. 651; Robinson v. Kime, 70 N. Y. 152; Doe v. Thompson, 5 Cow. 371; Thompson v. Burhans, 79 N. Y. 99: Higginbotham v. Stoddard, 9 Hun, 1, 72 N. Y. 94. Theodore S. Lowndes acquired no easement in the premises by his occupation. Ward v. Warren, 82 N. Y. 265; Nicholls v. Wentworth, 100 N. Y. 455; Munsion v. Reid, 46 Hun, 399; Thomas v. Marshfield, 12 Pick. 240; Kellogg v. Thomson, 66 N. Y. 88. A tolerated or permissive user will not ma ture into a title by prescription. Dodge v. McClintock, 47 N. H. 387; Polly v. McCall, 37 Ala. 20; Pierce v. Cloud, 42 Pa. 113; Slater v. Jepherson, 6 Cush. 129; Stevens v. Hollister, 18 Vt. 294; Parker v. Parker, 1 Allen, 245; Stevens v. Taft, 11 Gray, 35; Morrison v. Chapin, 97 Mass. 76; Morris v. Calla. nan, 105 Mass. 133; Coburn v. Hollis, 3 Met. 128; Wheeler v. Spinola, 54 N. Y. 387; Roberts v. Baumgarten, 110 N. Y. 880: Parker v. |