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(46 S. Ct.)

(271 U. S. 65)

COMMONWEALTH OF MASSACHUSETTS v. STATE OF NEW YORK et al.

territory, or reservation to state of sovereign rights in grant of land to be held in private ownership by one state within the limits of another, carries with it, as an incident, title to

(Argued March 4, 1926. Decided April 12, lands under navigable waters.

1926.)

No. 14, Original.

1. Public lands 188-People of states became sovereign as result of Revolution, acquiring rights of crown in public domain.

As a result of the Revolution, the people of each state became sovereign, and in that capacity acquired rights of the crown in the public domain.

2. States

6-In ascertaining meaning of grant or reservation of sovereign rights over lands in early treaty between states, regard must be had to technical significance of words used, interpreted with a view to public convenience and avoidance of controversy, and object ought not be defeated by technical perplexities.

In ascertaining meaning of grant or reservation of sovereign rights over lands in early treaty between states, regard must be had to technical significance of words used in grants, interpreted with view to public convenience and avoidance of controversy, and the great object, where it can be distinctly perceived, ought not be defeated by those technical perplexities which sometimes influence contracts between individuals.

3. Navigable waters 36(1)-Title to soil under navigable waters is in sovereign, except as to private rights acquired by grant or prescription.

Title to the soil under navigable waters is in the sovereign, except so far as private rights in it have been acquired by express grant or prescription.

4. Navigable waters 37(4)-In construing grants of lands to be held in private ownership, there is presumption against separation of dominion over navigable waters from sovereignty.

Dominion over navigable waters and property in soil under them are so identified with exercise of sovereign powers of government that a presumption against their separation from sovereignty must be indulged, in construing grants by the sovereign of lands to be held in private ownership.

5. Navigable waters

37(6)-All grants by sovereign government must be construed so as to diminish public rights only so far as is necessary by unavoidable construction.

All grants by or to sovereign government, as distinguished from private grants, must be construed so as to diminish public rights of sovereign only so far as is made necessary by an unavoidable construction.

6. Navigable waters 37 (7)-Grant of title of sovereignty over specified territory, or reservation to state of sovereign rights, carries title to land under navigable waters.

Grant by state of the rights and title of government and sovereignty over a specified

7. Navigable waters

36(1)-Treaty of Hart

ford, granting land within New York state to Massachusetts, but reserving sovereignty and jurisdiction to New York, held to give to New York title to all lands under navigable waters.

Treaty of Hartford, granting to commonwealth of Massachusetts land within New York, to be held in private ownership, but granting and reserving the right and title of sovereignty and jurisdiction to New York, held to give to New York, as incident of its sovereignty, title to all lands under navigable waters. 8. Navigable waters

36(3)-"Seashore"

is area between high and low water mark.

The "seashore" is that well-defined area ly

ing between high-water mark and low-water mark of waters in which the tide daily ebbs and flows.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Seashore.]

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grant extending to "shore" of sea carries only to high-water mark.

Generally, grant whose boundaries extend to the shore, or along the shore of the sea, carbut word ries only to high-water mark; "shore," even in its application to tidal waters, is subject to construction by terms of deed and surrounding circumstances, and may mean water's edge at low-water mark.

and Phrases, First and Second Series, Shore.]

[Ed. Note.-For other definitions, see Words

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setts, under grant of lands described as extending to shore of lake, held not entitled to benefit of accretion, particularly in view of acquiescence in construction of grant (Laws and Res. 1786-87, c. 135, p. 900; Laws and Res. 1788-89, c. 23, p. 35).

Where commonwealth of Massachusetts, by acts of its Legislature approved April 1, 1788 (Laws and Res. 1786-87, c. 135, p. 900, and Laws and Res. 1788-89, c. 23, p. 35, approved November 21, 1788), granted lands described as extending to shore of Lake Ontario, held that Massachusetts was not entitled to benefit of accretion to shores of Lake Ontario, particularly in view of long-continued acquiescence in construction of grants as not reserving any interest in shores or land under water.

12. States 13-Long acquiescence in possession of territory and exercise of dominion and sovereignty over it may have controlling effect in determination of disputed boundary.

Long acquiescence in possession of territory and the exercise of dominion and sovereignty

For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

13. Public lands 155-Treaty of Hartford, granting lands in New York to Massachusetts, does not affect interpretation by Massachusetts of her own deeds as evidence of correctness of construction placed thereon.

over it may have controlling effect in determi- as to the amount of damages to be paid for nation of disputed boundary. the property if taken by eminent domain. The land in dispute is a narrow strip of about 25 acres fronting upon Lake Ontario within the city limits of Rochester. By the Treaty of Hartford, entered into between New York and Massachusetts December 16, 1786, land within the territorial limits of New York was granted to Massachusetts in private ownership. The title to the land in controversy depends upon the meaning and effect of this treaty, and upon the construction of a subsequent conveyance by Massachusetts of a part of the land thus acquired, through which conveyance the several defendants other than the state of New York derive their title.

That treaty of Hartford, granting to Massachusetts lands in New York, provided that no adverse possession should be adjudged a disseisin, does not affect interpretation by Massachusetts of her own deeds and acts, and longcontinued acquiescence in that interpretation as persuasive, if not conclusive, evidence of correctness of construction placed on deeds.

Original suit in equity by the Commonwealth of Massachusetts against the State of New York and others. Decree for defendants.

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*Messrs. Anson Getman, of Albany, N. Y., and Albert Ottinger, Atty. Gen., for the people of the state of New York.

Mr. Charles L. Pierce, of Rochester, N. Y., for defendant city of Rochester.

Mr. Eugene Van Voorhis, of New York City, for defendants commissioners of appraisal.

Mr. Harry Otis Poole, of Rochester, N. Y., for defendants McIntyre and others. Mr. Harry C. Miller, of New York City, for defendant Granger.

Mr. Clarence P. Moser, of Rochester, N. Y., for defendant Bartholomay Co.

Mr. Daniel M. Beach, of Rochester, N. Y., for defendants New York Cent. R. Co. and

another.

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located in the city of Rochester, and to enjoin the city from taking it by eminent domain, or in the alternative, to have the amount of compensation for the taking determined by this court. The case was heard upon bill and answer and the report of a special master appointed to take proofs and to make an advisory report upon the questions of fact raised by the pleadings, except

Before 1786 Massachusetts and New York claimed, under conflicting royal grants, both sovereignty and title of a large area of what is now western New York. The controversy was settled by the Treaty of Hartford by which Massachusetts gave up all its claim to sovereignty over the territory, and its claim to private ownership in part of it, and New

York ceded to Massachusetts

"the Right of pre-emption of the Soil from the native Indians and all other the Estate, Right, Title and Property (the Right and Title of Government Sovereignty and Jurisdiction excepted) which the State of New York hath * in or to all the Lands and Territories within the following Limits and Bounds that is to say, BEGINNING in the north boundary

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Line of the State of Pennsylvania in the parallel of forty-two degrees of north Latitude at a point distant eighty-two miles west from the north east Corner of the state of Pennsylvania on Delaware River as the said boundary Line hath been run and marked by the Commissioners appointed by the States of Pennsylvania and New York respectively and from the said Point or Place of beginning running on a due meridian north to the boundary Line between the United States of America and the king of Great Britain thence westerly and southerly along the said boundary Line to a meridian which will pass

one mile due East from the northern Termination of the Streight or waters between Lake Ontario and Lake Erie thence South along the

said Meridian to the South Shore of Lake Ontario thence on the eastern side of the said

Streight by a Line always one mile distant from and parallel to the said Streight to Lake Erie thence due west to the boundary Line between the United States and the king of Great Britain thence along the said boundary Line until it meets with the Line of Cession from the State of New York to the United States thence along the said Line of Cession to the northwest corner of the State of Pennsylvania and thence East along the northern boundary Line of the State of Pennsylvania to the said place of beginning."

Article 10 of the Treaty provided that Massachusetts might grant the right of pre-emption in the lands thus acquired, "to any person or persons who by virtue of such Grant shall have good right to extinguish by pur

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(46 S. Ct.)

chase the claims of the native Indians," by | Phelps and Gorham having failed to pay the compliance with certain conditions not now purchase price stipulated in the Resolve of important. April 1, 1788, a settlement of the contract or agreement between them and the commonwealth of Massachusetts was effected. By this they retained the easterly one-third of the lands which had been released and confirmed to them by the Five Tribes and later conveyed to them by the commonwealth of Massachusetts, and they released and quitclaimed to the commonwealth all their right and title in the remainder of the land.

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By act of the Massachusetts Legislature, approved April 1, 1788 (Laws and Res. 1786-87, c. 135, p. 900), it was provided that "this Commonwealth doth hereby agree, to grant, sell & convey" to Oliver Phelps and Nathaniel Gorham, for a purchase price stated in the act, "all the Right, Title & Demand, which the said Commonwealth *has in & to the said Western Territory" ceded to it by the Treaty of Hartford. On July 8, 1788, the Five Indian Nations (Mohawks, Oneidas, Onandagas, Cayugas, and Senecas) executed a deed or treaty extinguishing the Indian claim to the territory described in it and conveying that territory to Phelps and Gorham. The description embraces approximately the east one-third of the territory ceded to Massachusetts by the Treaty of Hartford, and begins at a point "in the north boundary line of the State of Pennsylvania in the parallel of forty-two degrees north latitude at a point distant eighty-two miles west from the northeast corner of Pennsylvania on Delaware river." The description proceeds by various metes and bounds to a point on the Genesee river from which, so far as now material, it reads as follows:

66 # * * Thence running in a direction due west twelve miles, thence running in a direction northwardly, so as to be twelve miles distant from the most westward bends of said Genesee River to the shore of the Ontario Lake thence eastwardly along the shores of said Lake to a meridian which will pass through the first point or place of beginning. * *

It is established that since the grant to ing of the shore line of Lake Ontario, and Phelps and Gorham, there has been a shiftthat the land now in dispute, which certainly in 1803 and probably at the time of the Phelps and Gorham grant, was under water,

north of the shore line of Lake Ontario, is now above water and south of the high-water mark of the lake. Whether the change in of the land in question was due wholly to acthe shore line and in the physical condition cretion, or partly to accretion and partly to view we take of the case is not material. filling, does not clearly appear, and in the

Massachusetts is that the legal effect of the The argument of the commonwealth of Hartford Treaty was to release and convey to Massachusetts within the limits of the description in the grant, the bed of Lake Ontario as it then existed, and that by the treaty it acquired title to the land now in dispute; that its grant to Phelps and Gorham, bounding the land conveyed by a line running "to the Shore of the Ontario Lake;

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thence eastwardly *along the Shores of the said Lake," carried only to high-water mark; and that title to all the land below high-water By legislative act (Laws and Res. 1788-89, mark as it then existed remained in Massac. 23, p. 35), approved November 21, 1788, the chusetts. Even though this contention that commonwealth of Massachusetts granted to the bed of the lake vested in Massachusetts Phelps and Gorham the land which had been be decided against it, Massachusetts neverconveyed by the deed or treaty with the Fivetheless takes the position that the land in Tribes, the description of the land conveyed being, so far as it is now material, identical with that in the conveyance from the Five Tribes, which we have quoted. By treaty between the Six Nations and the United States, executed November 11, 1794, known as the Pickering Treaty (7 Stat. 44), the Indians formally disclaimed any rights in the land lying east of the west line of the Phelps

and Gorham tract.

The several corporate and individual defendants who are in possession of or claim

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dispute was due to accretion, and that all the benefits of the accretion accrued to Massachusetts, because it did acquire title to the shore of the lake by the Treaty of Hartford, and did not part with the title to the shore by its grant to Phelps and Gorham.

The first question which must receive our consideration is whether Massachusetts acquired any title to the bed of Lake Ontario by the Treaty of Hartford. That treaty contained three principal clauses of cession. One granted to New York "all the claim right and Title which the Commonwealth of Massachusetts hath to the Government Sovereignty and Jurisdiction" in all the lands in controversy between the two states. The second granted to Massachusetts "the right of preemption of the soil from the native Indians and all other the estate, right, title and property (the right and title of government, sovereignty and jurisdiction excepted)" of the state of New York in that part of the land, After the Act approved November 21, 1788, the description of which has already been set

an interest in land now in *controversy, derive their title, through mesne conveyances, from Phelps and Gorham, who took under the grants last described, from the Five Tribes and from the commonwealth of Massachusetts, and Massachusetts is not entitled to relief in this suit unless title in the locus quo was acquired by it by the Treaty of Hartford and remained in it after its grant to Phelps and Gorham.

forth in detail, and which included that part of the bed of the lake lying within the east and west boundaries of the tract ceded, and south of the international boundary. By the third, with which we are not now concerned, Massachusetts gave up and ceded to New York its claim to private ownership in the remainder of the land in controversy.

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feated by those technical perplexities which may sometimes influence contracts between individuals". Marshall, C. J., in Handly's Lessee v. Anthony, 5 Wheat. 374, 383, 384, 5 L. Ed. 113. The applicable principles of English law then well understood, the object of the grant, contemporaneous construction of it and usage under it for more than a century, all are to be given consideration and weight. Martin v. Waddell, supra.

[1] The English possessions in America were claimed by right of discovery. The rights of property and dominion in the lands The grant made by New York to Massachudiscovered by those acting under royal au- setts embraced a vast domain extending more thority were held to vest in the crown, which than 140 miles from east to west, and from under the principles of the British Constitu- the northern boundary of Pennsylvania to the Canadian line, comprising about 6,000,tion was deemed to hold *them as a part of 000 acres of land, largely an unsettled wilthe public domain for the benefit of the na- derness inhabited by Indians, to which the tion. Upon these principles rest the various navigable waters of Lake Ontario were the English royal charters and grants of territo- principal means of access. The purpose of ry on the continent of North America. John- it was, while reserving and securing to New son v. M'Intosh, 8 Wheat. 543, 577 et seq., York its rights as a sovereign state in the 595, 5 L. Ed. 681. As a result of the Revolu- granted territory, to confer upon Massachution, the people of each state became sover-setts the right of pre-emption of the soil from eign, and in that capacity acquired the rights the Indians, and to enable it to make sale of of the crown in the public domain (Martin v. the lands to settlers by conferring on it the Waddell, 16 Pet. 367, 410, 10 L. Ed. 997), and power to grant this right of pre-emption. it was by the exercise of their sovereign power as states that New York and Massachusetts undertook to make disposition of a portion of their public domain by the grants contained in the Treaty of Hartford.

The effect of the grant made to Massachusetts in the treaty, so far as concerns the question now presented, depends upon the interpretation of the restrictive language excepting from the operation of the grant the "right and Title of Government Sovereignty and Jurisdiction" of New York, and of the cotemporaneous grant by Massachusetts to New York of "all the claim right and Title which the Commonwealth of Massachusetts hath to the Government Sovereignty and Jurisdiction" over all the lands in controversy. We have to decide whether the grant and reservation to New York of sovereign rights vested or reserved in New York the title to the bed of the navigable waters lying within the exterior limits of the grant made by it to Massachusetts in the same instrument.

The question is not the vexed one argued at the bar whether there was power in New York to grant the soil beneath its navigable waters in private ownership. Compare Martin v. Waddell, supra, page 410. We need not consider here whether, in such circumstances, there is a limitation on the power of a sovereign state to grant its public domain, nor the nature and extent of the limitation if it exists, for in our view the meaning of the grant itself determines the principal question which we have to decide.

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[2] *In ascertaining that meaning, not only must regard be had to the technical significance of the words used in the grants, but they must be interpreted "with a view to public convenience, and the avoidance of controversy," and "the great object, where it can be distinctly perceived, ought not to be de

It does not appear that the Indians ever had or claimed any rights to the soil under the lake, or that any attempt was made by Massachusetts or those claiming under it to exercise the granted right of pre-emption with respect to the bed of the lake. Nor is there anything to indicate that either party to the treaty contemplated grants of the soil under the water, or intended any such limitation upon the sovereign rights of New York over navigable waters within its territory, as necessarily would have resulted from the grant in private ownership of lands under

water.

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*It would be difficult to suggest any purpose which the high contracting parties could have had in mind which would have been furthered by a grant to Massachusetts of a fee in the bed of the lake. The right of Massachusetts and her grantees to use the waters of the lake was amply secured and protected by a clause of the treaty, which provided that:

"Citizens of the Commonwealth of Massachusetts shall ** ** have and enjoy the same and equal Rights reat all times hereafter specting the navigation and fishery on and in Lake Ontario and Lake Erie and the Waters communicating from, one to the other as shall from time to time be had and enjoyed by the Citizens of the State of New York.

*

On the other hand, a grant of the soil under water in private ownership would have set material limits on the free exercise of the sovereign control of New York over the navigable waters of the state and on the free use of the principal waterway of the newly settled territory. All these considerations lead to the conclusion that the grants in the Treaty of Hartford did not convey to Massa

(46 S. Ct.)

chusetts, which took in private ownership, | vation to the grantor state of these sovereign any title in the bed of the lake, unless the rights, the grant or reservation carries with technical language employed in the grants it, as an incident, title to lands under navicompels us to take an opposite view. gable waters.

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The fact that the northern limit of the grant to Massachusetts was described as the international boundary, and not the edge of the lake, is not inconsistent with our view of the general purpose of the grant with respect to the lands under water. A map in evidence antedating the treaty shows numerous islands in Lake Ontario within the described area. It was unquestionably the purpose to grant the right of pre-emption of all the is-ferred to 24 individuals, the proprietors of lands and, in order to include them, it was necessary to extend the description to the international boundary line. Moreover, it was the avowed purpose of the treaty to settle all controversies with respect to the area described, and these included conflicting claims

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of sovereignty as well as *disputes with respect to proprietary rights. It was necessary, therefore, to make the international boundary a descriptive term in the grants and reservations whereby sovereignty and jurisdiction over the entire tract were being adjusted.

*The precise question now under consideration was before this court in Martin v. Waddell, supra. That case involved the title to lands under tidal waters within the territorial limits of New Jersey, which were embraced within the territory granted by royal charters to the Duke of York. By successive conveyances, these lands had been transEast New Jersey, who were invested with the plenary rights and powers of government and ownership which had been conferred on the Duke of York by the original grants. In 1702 by formal instrument, the proprietors surrendered to the crown all their rights and powers of government, retaining their rights of private property in the granted territory.

[7] It was held, in an opinion by Chief Justice Taney, that the relinquishment by the proprietors to the crown, of the rights and powers of government vested in them, carried with it as an incident the title to land under tidal waters; that that title and ownership had passed to the state of New Jersey as an incident to its sovereignty over the ter

cluded all claims of title to lands under nav

[3-6] It is a principle derived from the English common law and firmly established in this country that the title to the soil un-ritory embraced in the royal grants, and exder navigable waters is in the sovereign, except so far as private rights in it have been acquired by express grant or prescription. Shively v. Bowlby, 14 S. Ct. 548, 152 U. S. 1. 38 L. Ed. 331. The rule is applied both to

igable waters by those claiming under grants by the proprietors. The reasoning of the opinion was addressed wholly to the proper interpretation to be placed upon grants or reservations of rights of sovereignty with rethe territory of the United States (Shively v. Bowlby, supra) and to land within the con- spect to their operation to transfer title of fines of the states, whether they are original lands under navigable waters; and it is decisive of this case. It compels the conclustates (Johnson v. M'Intosh, supra; Martin v. Waddell, supra) or states admitted into sion, which is supported by every considerathe Union since the adoption of the Constitution that could throw light upon the purpose tion (United States v. Holt State Bank, 46 S. and intent of the Treaty of Hartford, that Ct. 197, 270 U. S. 49, 70 L. Ed. 465). The the proper construction of the technical landominion over navigable waters and property reserved to New York the right and title of guage of the treaty (which both granted and in the soil under them, are so identified with sovereignty and jurisdiction over the area dethe exercise of the sovereign powers of gov-scribed) gave to New York, as incident to its ernment that a presumption against their sovereignty, title to all lands under navigaseparation from sovereignty must be in- ble waters. See Pollard's Lessees v. Hagan, dulged, in construing all grants by the sover-3 How. 212, 11 L. Ed. 565; Coxe v. State, 39 eign, of lands to be held in private owner-N. E. 400, 144 N. Y. 396, 406. ship. Martin v. Waddell; Shively v. Bowlby, supra. Such grants are peculiarly sub- *We pass now to the contention of Massaject to the rule, applicable generally, that all chusetts that, even if it did not acquire title grants by or to a sovereign government as to the bed of the lake, it did acquire title to distinguished from private grants, must be the shore of the lake by the Treaty of Hartconstrued so as to diminish the public rights ford, and that it is entitled to the benefit of of the sovereign only so far as is made nec-all accretion to the shore because it has nevessary by an unavoidable construction. er parted with its title. This contention deCharles River Bridge v. Warren Bridge, 11 pends upon the interpretation of the language Pet. 420, 544, 548, 9 L. Ed. 773; Shively v. of its grant to Phelps and Gorham, of lands Bowlby, supra. It follows that wherever bounded by a line described as extending "to there is a grant by a state having plenary the Shore of the Ontario Lake; thence eastpower to make it, of the rights and title of wardly along the Shores of the said Lake"; government and sovereignty over a speci- and it can be sustained only if we conclude fied territory, or where, in a grant of land to that notwithstanding the nature of the grant be held in private ownership by one state and the circumstances under which it was within the limits of another, there is a reser-made, Massachusetts, after its execution, re

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