18.1 II. History

• Jurisdiction: New York

II. History

Prior to July 4, 1776, title to all lands under tidal and navigable water in New York State, not previously duly granted, belonged to the crown of England. These lands included major arms of the sea such as bays. This title could be divested only by royal grant or charter by (1) direct and special act of the king, or (2) special act or charter of the royal governor.

The nature and extent of title of the king to navigable waters is sometimes broken down into the terms jus privatum and jus publicum—the former being such title as a private owner would hold and the latter such title as would be held in a sovereign capacity for the benefit of the public. This distinction between jus privatum and jus publicum is addressed in many of the cases as an underlying factor in the determination of the respective rights of the title holder and those of the public in navigable waters that have become privately owned.

The most comprehensive royal grant was that granted by King Charles II to his brother, the Duke of York, on March 24, 1664, which included all of what was known as New Netherlands from the Delaware River to Cape Cod. It also embraced the whole of Long Island and the Hudson River Valley.

The northern and western parts of the province of New York had been acquired by the Crown through conquest after war between the British and the French and Indians. The king and the Duke of York ruled the colony by royal governors, who had the power and authority to issue charters to inhabitants of various settlements, or by specific royal grants to certain individuals.

In order to determine whether title to any specific body of tidal water has passed out of the crown to a municipality by charter or to an individual or group by royal grant or patent, the boundaries of such grants or patents must be carefully read and traced. For example, if the boundary runs “along the Sound” and the grant also includes “all lands, waters, creeks, etc.” therein (referring to the land granted), it has been held that a bay or large harbor forming a substantial indentation of the shoreline is included in the grant.³¹⁴¹

Subsequent to July 4, 1776, the state of New York succeeded to the right, title and prerogative of the English crown in the tidal and navigable waters of the former colony.³¹⁴² Thus, the title to the land under water, i.e., the land outshore of the high-water mark, vested in the new sovereign (i.e., the state), which held it for the common benefit.³¹⁴³ However, under...