Rose v. Bunn (21 N.Y. 275, 1860)

Denio, J.

It is the most favorable position for the defendants, to assume that the lease of 1703 inured according to *its terms and obvious intention; to ,the use of the Shinnecock Indians, in perpetuity, or, at least, during the long term granted, as though they bore a corporate character which would authorize them to take and hold and as a6 tribe; and I shall accordingly so assume. It might be difficult, however, to maintain that they possessed such a capacity in respect to private grants and conveyances, if the case turned upon that question.

. The controversy" must,- therefore, depend upon the proper construction of the instrument given in evidence, and its legal effect. It contains general words of grant and demise of the whole of the premises contained within the boundaries specified; but these are greatly qualified by what follows. The meadows and marshes were excepted; and they' were proper subjects of ah exception, according to the technical rules referred to by the defendants’ counsel; and so with the timber, stone and highways. It is objected, that the “ grass, herbage, feeding and pasturage,” which are also excepted in terms, being the annual profits of the land, cannot be excepted or reserved to the grantees, such reservation being, as it is argued, repugnant to the grant; and, moreover, that being things not in existence at the time of the grant, they cannot be the subject of an exception. But, I am of opinion, that the restriction, whether it be called an exception or a reservation, is an effectual qualification of the grant, by which* the lessees, by accepting the deed, are bound. The right of the grantors, and those whom they represent, to enter with their cattle to depasture the land (assuming the general title to pass to the lessees) Was such a servitude or easement as may be legally created by the acceptance of a deed reserving such rights. (Hills v. Miller, 3 Paige 254; Child v. Chappell, 9 N. Y. 246, 253.) Besides, servitudes, or easements as they are now called, may be established by prescription; and it Avas shoAvn that the rights Avhich the deed professes to create in favor of the lessors, had been continually exercised by the inhabitauts of Southampton, for a great length of time. The evidence renders it probable that they had been, from the time of the execution of the lease.

Enough has been said, to sIioav that the plaintiff, as an ^"inhabitant of Southampton, had a 'right to turn his sheep upon the premises, and that he Avas not a trespasser in so doing. But, consistently Avith this privilege, the Indians had a right to ploAv and plant the arable parts of the land, provided they threAV doAvn their in closures in the autumn, and suffered them thus to remain until spring. The respective rights of the parties then Avere as folloAvs:—The plaintiff had the general right of pasturage upon the Avhole of the premises, during the Avhole year, subject to the defendants’ right to inclose and cultivate the arable portions, during seven months; these arable parts Avere the hill sides, Avhich seem to have been interspersed among the meadoA\rs, marshes, and pasture lands. It aauis for the lessees to elect Avhether they Avould cultivate, .and upon Avhat portion they Avould thus exercise their rights. This relative situation of the parties, points out very plainly avIio were to be at the trouble and expense of securing the crop against the .intrusions of the animals, Avhose oAvners had a general right to turn them upon the premises. The party Avhose right it Avas to .select the parts he wanted .cultivated, Avag tlje one Avhose duty it Avas to protect the portion so selected from the intrusion of the animals, A^ho, until such selection, .had a general right-to be upon every portion of the premises.

The case has no analogy to that of persons OAvning adjoining lands, .where, by the common law. each proprietor was obliged to keep his domestic animals on his own land, and Avhere, by the statute, the fences are to be divided. The provision .by which the Indians were alloAved to take fencing timber, and that by which they were forbidden to maintain inclosures during a part of the year, confirms the view I have taken of the case. I am satisfied, that the supreme court Avas right in holding that it was for the lessees to secure the portions of land Avhich they chose to cultivate, against the cattle of the lessors, lawfully be-upon the remainder of the premises, and that the taking of the plaintiff’s sheep, as a distress, cannot be sustained. The judgment must be affirmed.

Judgment affirmed.