The sun. [volume] (New York [N.Y.]) 1833-1916, 1910-05-04
TEE RIGHrS or rHE OYSrER.

4
HFanAs over no years old. and that since Ne
right Of navigation includes deepenlhS q
channel. such an Improvement when ordered
/ BY the Government cannot b. restrained by
| the holder of Colonial patent. although is
/ eject may BE- 20 destroy beds % oysters
| The question went "a the Court Of Appeals
| In the Injunction apit Of the Lewis Blue Polnt
/ Oyster Cultivation Company w. J. Marva
| nrlgEs. a Government contractor. The A..
/ lion sought 10 restrain the contractor from
/ diRaina OF dredging upon certain land under
/ tho waters Of Great South Bay. In Suffolk
county, IN such way ~ 10 disturb the oyster
hsds planted BY the plaintiff The defendants
answer denied the Jurisdiction Of the court
over tho subject matter Of the sction On The
mound that the plaintiff was seeking O. -
strain the Improvement Of navigation Incl
/ dent 20 the regulation Of commerce over The
/ navlEnble waters OF Great South BAy. Il.
, though the improvement had been author-
I lgrd hv the Government and the defendant
/ had contracted 10 do the work, The 10.
J PENDANT further set up that III the rEh's u
/ the plaintiff are subject and suhssrveni 10
| the right Of Congress 70 regulate commerce
and navigation.
The Appellate Division Of the Second
/ Department. from which the appeal va
| taken. found In substance that under three
Colonial patents made IN ICES. isse and 100
certain persons own the area In question,
Including the exclusive right of fishery
within u, which had been leased 10 the plan.
tln for ten years In 1901 for the purpose q
planting. cultivatlnE and FTOuinR oysters.
that the plaintln had staked and buoyed The
land at great expense and had planted
on h q large quantity Of oysters worth
over 5000. thatulhe lands are under he
navlgable waterfall Great South Raw, an
arm Of the ssa. over which enrolled and
registered vessels pass for the purpose u
commerce between the States tha, under
an act Of Congress In 1908 the defendant
contracted 10 dredge a channel 100 fee,
long and 20 feet vide. nassinR diaEonailv
over the land In question. for the purpose
Of increasing the depth Of the water 70 aid
NAVIGATION: that the diRGing Of the channel
would destroy the oyster beds not oniy
along the line Of excavation but for sons
| distance on either side. and that the riEht
10 die the channel had not been ACQUIRED
/ by consent or condemnation.
Among other conclusions Of law the Ap-
pslIaie Division found that the right n ne
/ United States and its agent the contractor
/ 10 enter upon the lands and ashinE rights 10
question without making compenaation 10
paramount 10 the rights Of the plaintiff Or
| iis lessons. and dismissed the complaint "a
iis merits. vacatinE an iniunction rsndsnts
\ lite This judgment the Court II Appeals
| ahirmed unanimously.
Judge Vann. who wrote the Court II
| Appeals decision, pointed cut that counsel
| for the plaintiff admitted that neither the
plaintiff nor IT, lessons had any control
Of the right n navigation over the land IN
question, and that because the patents
| from the Crown are silent upon the SUBJECT
they must hs taken most strongly sEainst
| the grantees While admitting that the
( YiShs= % ths le.s>-s sFs snhiert - the puhilS
right Of nav iEation. counsel contended that
that rieht was limited 20 the naylkaticn
~ rho hay in its natural state without dis
turning the surface Of the land under water
by artificial means. The only question 10
presented for decision vas Il the authority
81 the United States for the regulation %
commerce bot Ween the states and 10 i'm
prove nayiEation In naviaahle waters para
mount 20 the private property rights and
exclusive private fishery rights n the PLAZA
tih and ~ lessors'-
Judge vann wrote that the King Of Eng
land had title 20 the land under the navi-
gable waters throughout hts Kingdom a.
his private property. which ne could dis
pose n ~ he saw m without restraint or
hindrance from the law. This was known
a. he Jus privatum held by him In his indi-
vidual capacity. The King also had title,
a. sovereign and In no sense a. proprietor.
70 the naviEahle waters themselves Wtthiu
rivers and arms NJ the sea where the tide
ebbed and flowed but he held them In trust
for his people and could no, dispose Of them
] 49, @aH Hula
Of private Ownership for they were uudsE
tho jus pubicam held by the King In a repre-
sentative capacity.
The court referred 70 Lord Hale's De
Partibus Maribus. In which he wrote: The
| jus pFivatum 81 the owner or proprietor Il
charged With and subject 20 that jus publ.
: rum which belongs ~ the Kings subjects.
a. the soil of highway IL. which though a
point Of property IL may b a private mans
| freehold YET Il ~ charged with the public
| interest 81 the people, Nhich may not 10
pre- diced or damnihsd Judge vann ends
| that TO the ancestors and grantors u the
plaintiffs lessons the King granted the ius
/ privatum 70 Inc locus In quo hut the ius
I publiCum under the right Of conquest and
| the treaty n peace made after the Revolu-
tionaTy war went 70 the original states and
when the Constitution vas adopted became
subject - tho rights surrendered thereby
| 10 he United Statss-
| Judge Vann holds that the plaintiff and its
lessons have no more than the King had a.
/ proprietor and the question IL what he held
In his individual capacity Was his THE
| 70 land under navieahle waters. and IL the
title Of the grantees 90 absolute as % pra-
vent Improvement by tho general Govern.
ment for the benefit of navigation. a. mat.
/ ter Of right and without making compensi-
ton. OF vas the jus pFiyatum. which Is con.
coded 20 he subject - the easement n nav.
cation. also subject by necessary lmplici-
| ton from the nature of that easement 70
The righi N promote naviEstion ~ ircress-
I inc the depth ~ the water 80 that vessels
Of larger draught and greater tonnage can
| raas m ssfety' Il tho grant NJ submerged
soil which j. 20 directly connected with ne
puhli" right ~ nsyigat on A. 10 b. incapable
n complete separation therefrom suhofdis
nate thereto . tho extent necessary 10 pro.
mote snd develop commerce.
( Upon the doctrine u implied reservation
I'm grants Of the Crown. witch rests on broad
principles Of public policy. Ne think tss
public right should be held 10 mbracs
whatever j. essential 70 the interests q
commerce ana mat the private right IL sub.
Jet thereto We think thai ne
plaintiff has no right In the land under vafsr
thst - not subject ~ the power NJ ne
nited States 10 construct the impro, emsn'
In question without making compensa'i'n
to u ran the risk when u planted ~
oysters mat the crop might be infer'srst
With whenever Congress decidst 70 diz
channel or Otherwise Improve Great south
Ray for the benefit of commerce re 90
may BE- severe. bur Congress r. not ar o
deal ungenerously with those who have
good grounds for relief