exercising acts of ownership thereupon and claiming an interest therein. Under those circumstances he was properly made a defendant in an action to secure to the plaintiff the immediate possession of the premises. Such an action is recognized as appropriate in New York. Trustees, etc., of the Town of Southampton v. Mecox Bay Oyster Co., 116 N. Y. 1, 22 N. E. 387, and cases cited in the opinion.

With respect to the matter of title, there are involved not merely the construction of public grants and charters, but also the extent and purposes to and for which the title and control of submerged lands may be passed away from the state to towns and individuals. The question is of the rights attaching to certain lands within the territorial limits of the state, and whatever becomes a settled rule of real property by the decisions of its courts is conclusive on this court. Bondurant v. Watson, 103 U. S. 281, 289; Burgess v. Seligman, 107 U. S. 20, 33, 2 Sup. Ct. 10; Gage v. Pumpelly, 115 U. S. 454, 6 Sup. Ct. 136; Hardin v. Jordan, 140 U. S. 371, 382, 402, 11 Sup. Ct. 808, 838; Shively v. Bowlby, 152 U. S. 14 Sup. Ct. 548.

The title of the plaintiff rests primarily on the three charters referred to in the complaint, and which were admitted in evidence. Those charters are grants of both territory and corporate franchises. The description in the first, that from Gov. Nicolls, is as follows:

"All ye Lands that already have been or hereafter shall bee Purchased for and on the behalfe of the said Towne of Huntington whether from the Natives Proprietors or others within the Limitts and Bounds herein exprest (vizt) that is to say from a Certaine River or Creeke on the west comonly called by the Indyans by the Name of Nackaquatack and by the English the Coldspring to Stretch Eastward to Nasaquack River on the North to bee Bounded by the Sound runing betwixt Long Island and the Maine and on ye South by the Sea Including there Nine Severall Necks of Meadow Ground all wch Tract of Land together with the sd Necks thereunto Belonging wthin the Bounds and Limitts aforesaid and all or any Plantacon there upon are to belong to the said Towne of Huntington as also all Havens Harbours Creekes Quarryes Woodland Meadowes Pastures Marshes Waters Lakes fishing Hawking Hunting and ffowling And all other Proffitts, Commodityes, Emolumts, and Hereditamts to the said Land and prmisses within the Limitts and Bounds aforementioned described belonging or in any wise appertaining To have & to hold the said Lands and Necks of Lands Hereditamts and prmisses with their and every of their Appurtenances and of every Part & Parcell thereof to the said Patentees and their Associates to the proper use and behoofe of the said Patentees and their As

sociates their Heires Successors and As signes forever; And I do likewise hereby Confirme and Graunt unto the said Patentees and their Associates their Heires Successors and Assignes all the Priviledges belonging to a Towne within this Governmt and that the Place of their prsent Habitacon shal continue and retaine the Name of Huntington by wch name it shall bee distinguisht and knowne in all Bargaines and Sales Deedes Records and Writings."

The second charter, that from Gov. Dongan, is a confirmation of the first, and the description is substantially the same. The third, from Gov. Fletcher, refers to the prior charter from Gov. Nicolls, and recites a petition of the freeholders, inhabitants of the town of Huntington, for a "Grant and Confirmation of the Premisses so only as that the Limits & Bounds of the sayd Towne of Huntingtone shall not be as above mentioned but as hereafter Expressed," and then grants by a description as follows:

"Bounded on the West by a River Called & known by the Name of Cold Spring a Lyne Runing South from the Head of the sayd Cold Spring to the South Sea & on the North by the Sound that Runns between our sayd Isld of Nassaw and the maine Continent & on the East by a Lyne Runing from the West syde of a Pond called & known be the Name of fresh Pond to West syde of Whitmans Dale or Hollow and from thence to a River on the South syde of our sayd Island of Nassaw on the East syde of a Neck called Sumpawwawins and from the sayd River Runing South to the sayd South Sea Togither with all and Singular the Houses*Mes-* suages Tenements Buildings Mills Mill damms fencing Inclosures Gardens Orchards fields Pastures Feedings Woods Underwoods Trees Timber Comon of Pasture Meadows Marshes Swamps Plaines Rivers Rivoletts Waters Lakes Ponds Brooks Streams Beaches Quarries Creeks Harbors Highways & Easements fishing fowleing hunting and hawking Mines Mineralls (Silver and Gold Mines Excepted) & all other franchises Profits benefits Comoditys & Hereditaments whatsoever to the sayd Tract of Land within the Limits and Bounds next above mentioned belonging or in any ways appertaining or there with all used Accepted Reputed or taken to belong or in any ways Appertaine to all intents and Purposes and Constructions w'tsoever and also all & Singular the Rents Arrearages of Rents Issues and Profits of the sayd Tract of Land & Premisses heretofore due and Payable."

It will be seen from these quotations that the boundary on the north, as given in the Nicolls charter, is the "Sound running betwixt Long Island and the Maine," and in the Fletcher, "the Sound that Runns between our sayd Isld of Nassaw and the maine Continent;" and the question is whether the tract in controversy is south of this north boundary line. The following map will belp to a clear understanding of the question:

The tract in controversy, marked "A" on this map, is within the limits of what is named thereon "Huntington Bay." The contention of the defendant is that that body of water is a part of the Sound, and that, therefore, the north boundary granted to the town of Huntington runs to the south of the tract in controversy. Referring to the words used to describe the appurtenances to this grant, It is urged that, although the general term "waters" is found therein, its place alongside of the words "rivers, rivoletts, lakes, ponds, brooks, streams," indicates that it refers exclusively to interior waters, and not to anything in the nature of a harbor, bay, or haven; and that when we turn to the terms which may properly be construed as referring to exterior waters, only the two"creeks" and "harbors"-are found; that this Huntington bay is not, strictly speaking, a harbor, in that it is not landlocked and a place of absolute safety for shipping, being *entirely open*and exposed on the northerly side; that this, being a public grant, is to be construed strictly against the grantee; that, inasmuch as bays are not mentioned, bays are not granted; and that the description of the Sound as the north boundary excludes that body of water, with all its inlets and bays, from the scope of the grant.

We are unable to concur in these views. 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. Or, to state the proposition in another form, whenever we are considering the matter of boundary we naturally turn to the words by which the boundary is described, and accept those words as controlling, and do not look to those by which the scrivener attempts to define that which is to pass with the granted premises as appurtenant thereto, to see what is omitted therefrom, or what is uncertain therein; for when, in the preparation of any instrument, the attention is directed to a particular subject, it is to be expected that language expressing the exact thought of the writer in respect thereto will be selected, and the ordinary force and scope of that language should not be destroyed by words and phrases used in another portion of the instrument in the description of some other matter. As said by the supreme court of Kansas in Long v. Culp, 14 Kan. 412, 414: "It is also a rule of construction that, when one section of a statute treats specially and solely of a matter, that section prevails, in reference to that matter, over other sections in which only incidental reference is made thereto; not because one section has more force as a legislative enactment than another, but because the legislative mind, having been, in the one section, directed to this matter, must be presumed to have there expressed its intention thereon, rather than in other sections where its attention was turned to

other things. Griffith v. Carter, 8 Kan. 565." The northern boundary in all these charters is given as "the Sound." That was then, and is now, a well-known body of water. It opens into the Atlantic ocean, but is separate and distinct therefrom. Into it flow many rivers, and open many bays, harbors," and inlets; but the fact of a connection between them and it does not make them a part of the Sound. If the words describing the appurtenances were omitted from this grant, should not its boundaries be understood to be the same as now? So the question is not whether this body of water in which the tract in controversy is situated is strictly a harbor or a bay, but whether it is neither, and only a part of the Sound. If it was then known as an independent body of water, by whatsoever name called, that is enough to eliminate it in tracing the boundary of the grant. That it was SO known is not open to question. It was not, therefore, a part of the Sound, and the boundary of the grant ran on the north of it.

While not perhaps of much significance, it may be noticed that in the first charter, that from Gov. Nicolls, the description of the appurtenances is "havens, harbours, creekes," &c. The word "haven" has perhaps a broad. er signification than "harbor." At any rate, the use of both words in the same grant suggests that all bodies of water which might come within the reach of either term were intended to be included in the grant. In Webster the first definition given to the word "haven" is "a bay, recess, or inlet of the sea, or the mouth of a river, which affords good anchorage and a safe station for ships." While this bay might not be a place of safety against all storms coming from any direction, it was protected on three sides, and to that extent was "a safe station for ships."

In the case of Rogers v. Jones, 1 Wend. 237, the controversy was in respect to the property in the town immediately west of the town of Huntington, to wit, Oyster Bay. An examination of a map of Long Island and the Sound shows that the bay of Oyster Bay is no more of a harbor than Huntington bay. It is just as open on the northerly side. The town of Oyster Bay had a charter similar to that of the town of Huntington, the northern boundary being "the Sound," and the grant being "with all the woodland, plains, meadows, pastures, quarries, marshes, waters, lakes, rivers, fishing, hawking, hunting, and fowling, and all other profits and emoluments to the tract belonging." Thes action was one to recover a penalty for tak.* ing oysters contrary to a by-law of the town. The facts, as stated in the record, were as follows:

"On April 8, 1825, Rogers, the defendant below, being a citizen of the state of New York, did fish and oyster in the waters of the bay or harbor of Oyster Bay, and took and carried away 100 oysters. The place

where the oysters were taken was adjacent to and within one mile of Long Island Sound, opposite the village or town of Oyster Bay, nearer Lloyd's Neck than any other land, within about one hundred yards of the beach on the said neck, and where the water in the bay is at least twenty feet deep at low water. On April 11, 1825, the suit was commenced before the justice by Jones, who was, at the time, the supervisor of the town." Comparing the maps of the two bays, it is obvious that the locus in quo in that case was as properly to be considered within the limits of Long Island Sound as that in the present case. It is true no discussion of the point here made is found in the opinion there filed, and therefore it is not a direct adjudication. It seems to have been assumed that the tract, being within the limits of the bay, was south of the Sound, and therefore within the boundaries of the grant, and the question considered and determined was whether the grant carried the land under water, together with the exclusive right of fishing in such water, and it was held that it did.

A case also in point is Trustees of Brookhaven v. Strong, 60 N. Y. 56. That action was, as stated, one "brought to recover damages for taking oysters from the Great South bay, which extends along the south side of Long Island, separated from the ocean by the Great South beach, and to establish the exclusive right of the town of Brookhaven to the oyster fisheries in that portion of said bay lying between Huntington, East Gut, and Long Point.

"The bay is a sheet of water some fifty miles long, and in the widest part five miles wide. The tide ebbs and flows throughout its whole extent, and it is navigable for vessels drawing from seven to eight feet of water. Plaintiffs claimed to be the owner of the bay within the limits above mentioned, and of an exclusive right of fishery therein. Defendant admitted the taking of the oysters, but denied the exclusive right claimed by plaintiffs, and alleged that the place where they were taken was within the bounds of the town of Islip, and was part of the navigable waters of the state, and that he, being a resident of the town of Islip, had a right to take the oysters."

The south boundary of the grant made in 1666 to the town of Brookhaven was "the sea or main ocean," and it was held that the grant included this bay, the court saying: "Nor can the objection that the bay was not included in the grant be sustained. The general boundary is the ocean, which includes the beach, and of course the bay."

There is nothing in the case of Robins v. Ackerly, 91 N. Y. 98, 104, which makes against the conclusion we have expressed. In that case the question was as to oyster beds in Northport harbor, a body of water adjacent to Huntington bay. That harbor, as appears from the map, is landlocked, and

this fact was referred to in the opinion as among the matters indicating that it was within the grant to the town of Huntington. While the court refers to that as an additional reason for the conclusion reached, it does not make that the turning point. We quote its language:

"The northern boundary of the town is the Sound. This includes, we think, Northport | harbor, where the oyster beds in question are located. The language of the grant includes 'all havens, harbors, creeks,' as well as 'fishing, hawking, hunting, and fowling.' In the Brookhaven Case the south boundary was the ocean, and there was a sandy flat or beach between the ocean and the bay, and the question was raised that the South bay was not within the grant. This court held that this objection could not be sustained, and that the southern boundary, which was the ocean, included the beach, and of course the bay, etc. The patent under which the plaintiff claims is bounded on the north by the Sound, adjacent to the Sound is Eaton's Neck and Eaton's Neck beach, and south of this is Northport harbor. By analogy, both Eaton's Neck and Eaton's Neck beach are within the patents, and necessarily* the har bor also. The boundary by the Sound includes all the land south of the Sound. That this was intended is indicated by the use of the words in the grant, 'harbor, havens,' etc. That Northport harbor was included within the limits of the boundaries was proved by the undisputed evidence of the surveyor and others. It was also proved that Eaton's Neck beach was leased by the town. It should also be noticed that Northport harbor is landlocked, and has always been used and distinguished as a harbor."

Each of these three cases from the highest court of the state of New York treats that which is named as the boundary on the north or south-the Sound or the ocean-as referring directly to the body of water known by such name, and not as including waters opening into or connected with it.

Further, there is independent testimony tending to show that this Huntington bay was called indiscriminately "bay" or "harbor" at the time of the original grant. Thus, in the grant made by Gov. Nicolls, on June 22, 1667, of Eaton's Neck to George Baldwin, the description is "a Certain Parcell or Neck of Land Commonly called Eaton's Neck lying and being in the East Riding of Yorkshire upon Long Island on the North side of the said Island to the East of Huntington Bay where striking out into the Sound it is thereby bounded to the North East and South and on ye West with Huntington Harbour;" and in a conveyance of the same land made by Baldwin, on July 11, 1668, the description is "neck of Land commonly Called and known by the name of Easton Neck lying on the East side of Huntington Harbour bounded as is Specified in the patent granted for that Neck of Land." There is

also other testimony to the effect that this body of water has been known as "Huntington Bay" as far back as any memory extends, or any records are found; and, whether bay or harbor, it was a distinct body of water, always so known and called.

No question exists as to the validity of these ancient grants, or that they were broad enough to include oyster rights in the waters within them. The subsequent legislation of the colony and the state affirms their validity. Thus, on May 6, 1691,*the colonial legislature passed an act entitled "An act for settling, quieting and confirming unto the cities, towns, manors, and freeholders within this province their several grants, patents and rights respectively." The first section enacted:

"That all the charters, patents and grants, made, given, and granted, and well and truly executed under the seal of this province, constituted and authorized by their late and present majesties, the kings of England, and registered in the secretary's office unto the several and respective corporations or bodies politick of the cities, towns, and manors, and also to the several and respective freeholders within this province, are and shall forever be deemed, esteemed, and reputed good and effectual charters, patents, and grants authentick in the law, against their majesties, their heirs, and successors, forever."

And in the second section it was provided: "And be it further enacted by the authority aforesaid, that all the charters, patents, and grants made, given, and granted, as aforesaid unto all and every the several and respective corporations or bodies politick of the cities, towns, and manors, and their successors, and also unto all and every the respective freeholders, their heirs and assigns, forever, within this province, are, to all intents and purposes whatsoever, hereby ratified and confirmed."

Section 36 of the first constitution of the state of New York contained this provision: "And be it further ordained: That all grants of land within this state, made by the king of Great Britain, or persons acting under his authority, after the fourteenth day of October, 1775, shall be null and void; but that nothing in the constitution contained shall be construed to affect any grants of land, within this state, made by the authority of the said king, or his predecessors, or to annul any charters to bodies politic by him, or them, or any of them, made prior to that date."

A similar one is found in section 18 of article 1 of the constitution of 1846. See upon this question of validity, in addition to the authorities heretofore quoted, People v. Van Rensselaer, 9 N. Y. 291, 346.

Again, it is worthy of note that that fact is apparent from the testimony in this case, which was noticed by the court of appeals as significant in the case of Trustees of Brookhaven v. Strong, 60 N. Y. 56, 71, to wit,

a long-continued exercise and control over these submerged lands on the part of the town. Several entries taken from the records of the proceedings of the town were offered in evidence. One, dated June 1, 1795, is as follows: "Whereas sundry persons are making a practice of taking and carrying away clams and oysters from the harbors on the north side of the town of Huntington, for the prevention of which be it enacted and ordained by the trustees of the freeholders and commonalty of the town of Huntington, and it is hereby enacted and ordained by the authority of the same, that if any person or persons, after the 10th day of June, 1795, shall take and carry away out of any of the harbors of the north side of the township of Huntington any clams or oysters, he or they, or any of them so offending, shall forfeit the sum of 40s. for every offense contrary to the true intent and meaning of this act, and shall be prosecuted," etc.; one substantially similar, of date June 20, 1796. Subsequently, in 1803, 1810, 1818, 1823, 1828, 1833, 1838, 1844, and 1849, by-laws were passed, aimed with more or less directness of expression at restraint upon the "fishing, clamming, oystering,"-catching oysters, clams, and fish,-in the waters of the town of Huntington. It is not meant by this to imply that any of these by-laws specifically named Huntington bay as a part of the waters belonging to the town of Huntington. All that is meant to suggest is that there was during those years a continued assertion of the right on the part of the town to control the catching of oysters in the waters of the town. Obviously, the planting of oysters was not then a matter much thought of, but from 1855 the occupation of the submerged lands for the purpose of the cultivation of the oyster seems to have attracted the attention of the town authorities. Thus, on April 3, 1855, at a town meeting, this resolution was passed:

"Resolved, that all persons be prohibited from putting down stakes in any of the harbors of the town of Huntington to mark the lines of the oyster beds that will in any way obstruct fishing with nets, under the penalty of $12.50."

On April 7, 1857, at a town meeting, the trustees were authorized "to make rules and regulations for the planting of oysters, receive applications, and grant permissions to the inhabitants" of the town for planting oysters. On April 4, 1871, the town record contains this recital:

"At a town meeting, resolved, that the trustees of this town be authorized, empowered, and directed to lease the lands immediately suitable for oyster beds in the bays and harbors belonging under the waters of the town of Huntington. Before doing so they shall take proper counsel therein as to the best and safest manner of leasing said grounds. None but residents have the privilege to said lease, and those residents having oysters already planted be entitled to the first priv.