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Does a 1686 Charter Create a Right to Jet Ski in the Hamptons?:
In 1686, the charter that King James II gave to settlers of the eastern tip of Long Island gave inhabitants of the area the right to "enjoy without hindrance" recreational activities like "fishing, hawking, hunting and fowling." 320 years later, jet-skiing enthusiast John Lagana is arguing that this term of the charter makes it illegal for the town of East Hampton, New York to ban jet skis. The New York Times has the story here.

  I have absolutely no background in this area, but I would imagine that the Declaration of Independence severs any binding effect of contractual conditions in such charters: the Declaration states that "these United Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do." I would think that this means that the state and its municipalities are not required to follow the terms of the King's charter (assuming it applies here, which is at best uncertain).

  Are any VC readers familiar with this area of law? If so, chime in in the comment thread.

  Hat tip: Above the Law.
bradleyjg:
I think Dartmouth College v. Woodward (Of "It's a small college yet there are those that love it" fame) controls and the charter is valid.
12.12.2006 1:45pm
A2 Reader:
I also don't know nuthin' about this area, but didn't the resolution of Dartmouth College depend upon the rights granted in a royal charter?

If so, why doesn't that undermine the Declaration = Tabula Rasa argument?
12.12.2006 1:47pm
RBG (mail):
Doesn't this depend on how the charter is characterized? If it's a grant of an easement or other real-property-like interest, why should the Declaration of Independence have any effect whatsoever on its legitimacy? Presumably most of the land in the colonies was initially granted by the English crown in one form or another.

An example of this is Trinity (Episcopal) Wall Street, which still owns acres of prime real estate in south Manhattan by virtue of a grant from Queen Anne in the early 18th century. This grant, too, has been repeatedly challenged in the courts, but to no avail.

It seems unlikely that the (very much propertied) authors of the Declaration of Independence intended to completely upend settled property interests, even if they did derive from the Crown. Insofar as the Long Island charter is analogous to a property interest, why should it be treated any differently?
12.12.2006 1:50pm
OrinKerr:
Bradley, A2,

Could you explain a bit more? I'm not familiar with this area, so just saying the name of a case and saying that it controls isn't very helpful. As we law professors like to say, show your work.

More broadly, in Dartmouth (as I read it now) the issue was whether a state could change the terms of a charter that regulated the right of a private party who was a recipient of rights in the original charter. The court read the contracts clause to say no. However, is it different if the charter regulates a governmental function that the state has assumed? Who are the parties to the contract whose rights are being impaired? And hasn't contract clause jurisprudence changed a lot since the Dartmouth College case?
12.12.2006 1:54pm
BruceM (mail) (www):
I think it depends on whether the charter was or was not dissolved by the Revolution. The Dartmouth case clearly points out that "The charter was not dissolved by the Revolution." Thus it is a valid contract. But I doubt all contracts/charters precedent to the Revolution granted by the Crown remained in effect thereafter. This one was probably special for some reason, and expressly not voided.
12.12.2006 1:56pm
ralph:
Why doesn't he have the right to use his vessel under the "right to navigation"? Does this locale say that no one has the right to navigate on their waters? I wonder what the Coast Guard has to say about this. It might be one thing for them to impose, say speed limits, but I have heard that some local Florida laws that are supposed to limit the ability of cruisers (boating enthusiasts) to anchor, have been overturned.
12.12.2006 2:06pm
rbj:
Rather than the Declaration, I think the Treaty of Paris would control.
12.12.2006 2:10pm
Rich B. (mail):
Is the Declaration of Independence precedential/ controlling?

Put another way, has there ever been a case that was decided based upon parsing the meaning of the Declaration of Independence?

I don't think there has.
12.12.2006 2:13pm
OrinKerr:
Rich B.,

I'm not sure, interesting question. Perhaps the relevant law is the New York state constitution?
12.12.2006 2:26pm
AdamSteiner (mail):
Rhode Island used their royal charter as the state constitution under the Dorr Rebellion in 1841 (see http://en.wikipedia.org/wiki/Dorr_Rebellion)

I don't know much about this area of law, but might one be able to differentiate the Dorr Rebellion by saying that the charter had been reaccepted post RI's entry to the union? The charter for the Hamptons may not have such evidence.
12.12.2006 2:28pm
Gump:
Wasn't there a Supreme Court case recently between Maryland and Virginia that turned on riparian rights granted under their original royal grants?
12.12.2006 2:36pm
J. F. Thomas (mail):
I did a paper on the border dispute between Georgia and South Carolina (where in the Savannah River the border between the two lay) in law school. That dispute was solved by a federal special master in 1987 or so and it predated the Declaration and the constitution (1743 was when the border was originally set although Oglethorpe was kind of sneaky, so the actual document in question might have been a bit later).

But isn't this a textualist or originalist question too.
12.12.2006 2:46pm
Craig Oren (mail):
The charter grants what we property teachers call a "profit" -- a right to take something from the land of the grantor (we don't have land here, but the sovereign is considered to town the ocean, according to Blackstone). Such a property right runs against successors to the land of the grantor, and so it can still be enforceable.

More generally, Orin's theory suggests that the Declaration of Independence, by annulling charters, put the new nation in something like a state of nature. If the royal charters fall, then could there be a free-for-all among the states for each other's land. Would property rights recognized by colonies created pursuant to grant still be recognized?
12.12.2006 2:48pm
Craig Oren (mail):
sorry, I had forgotten that this grant concerned land, not water. But the point is the same. The King made a grant, and that grant now runs against the successor, the state of New York.
12.12.2006 2:50pm
So White I'm Hot:
The case was between Delaware and New Jersey. Wikipedia gives a nice little summary of the riparian dispute here and the two Supreme Court opinions are linked in the "References" section.
12.12.2006 2:53pm
Bill Woods (mail):
Unless he's using his jet ski to run down sitting waterfowl or surfacing fish, is he really covered by a right to "enjoy without hindrance" recreational activities like "fishing, hawking, hunting and fowling"?
12.12.2006 2:53pm
another anonVCfan:
Unless he's using his jet ski to run down sitting waterfowl or surfacing fish, is he really covered by a right to "enjoy without hindrance" recreational activities like "fishing, hawking, hunting and fowling"?
That's a good point. Whatever happened to ejusdem generis
12.12.2006 2:59pm
OrinKerr:
Craig,

My extremely vague recollection is that each state avoided this problem by making explicit recognition of charter rights (although of course these rights need not be absolute -- there could be exceptions and limitations withoiut returning us to a state of nature). The article suggests that New York had this in its constitution at first, but then cut that part out.
12.12.2006 3:04pm
bradleyjg:
The Freeholders and Commonalty of the Town of East Hampton acting through their Trustees made a contract with the crown and now have exclusive rights under the charter in perpetuity.

There may be newer case law, but AFAIK this is still good law.

From Dartmouth (17 U.S. 518, 651)

By the revolution, the duties as well as the powers, of government devolved on the people of New Hampshire. It is admitted that among the latter was comprehended the transcendent power of Parliament, as well as that of the executive department. It is too clear to require the support of argument that all contracts and rights respecting property, remained unchanged by the revolution. The obligations, then, which were created by the charter to Dartmouth College were the same in the new that they had been in the old government. The power of the government was also the same. A repeal of this charter at any time prior to the adoption of the present Constitution of the United States would have been an extraordinary and unprecedented act of power, but one which could have been contested only by the restrictions upon the legislature, to be found in the constitution of the State. But the Constitution of the United States has imposed this additional limitation -- that the legislature of a State shall pass no act "impairing the obligation of contracts."
12.12.2006 3:45pm
Randy R. (mail):
If the charter is held as controlling, and the courts determine that the plaintiff is within his rights to jetski, and the Town still wants to ban him from doing so, would this mean that the Town would have to petition the Queen to change the terms of the charter?

In other words, can the terms ever be changed, and if so, how?
12.12.2006 3:56pm
Randy R. (mail):
The King gave the charter "to the inhabitants." Can they collectively change the terms of the charter, or is a grant from the king set in stone and can never be changed?

From the principles of property that I recall, you cannot tie up property forever with restrictions. If so, it should cut both ways -- you cannot forever decree how property may or may not be used.
12.12.2006 3:58pm
arbitraryaardvark (mail) (www):
http://en.wikipedia.org/wiki/Dorr_Rebellion
(earlier link didn't work for me.)
I would have thought that charters were part of the common law adopted by the new states, but that's a guess.
This page discusses the legal status of the Declarartion. I cite that page for its information, not its conclusions.
12.12.2006 4:08pm
Bryan DB:
Even without resort to the Declaration or powers of a King, it seems like Langan has at least two problems:
1) The canon of ejusdem generis (mentioned by another commenter) supports pretty clearly that riding a jet ski is not a "recreational activity like 'fishing, hawking, hunting and fowling.'" If he wants to go back in time to use the "enjoy without hindrance" language, then it seems like he's going to have to take the context that goes with it.
2) Even if one has a grant of land, one cannot always use it any way one likes. The states have police power over land use, and if the local authority wants to regulate jet skis in the name of safety, I'm not sure that the argument of "hindrance" is going to carry much weight.
12.12.2006 4:08pm
bb:
One instance of a royal charter/grant that comes to mind is in Puerto Rico, where there are certain properties exempt from taxation by virtue of a grant by the Queen of Spain back when it was still a Spanish colony. They were intended as set asides for the poor. A friend's father took the Puerto Rican government to court arguing that he didn't have to pay property taxes. He won.

The other odd one that comes to mind is Nahant, MA where there is a tradition of a perambulation day on which the public walks old rights of way to keep them public.

I don't recall if the rights of way were pre-Revolution or not, but it certainly is a very English custom in regards to property rights and public access. Many of the rights of way go through what are now houses, back yards, etc.
12.12.2006 4:13pm
Greg S. :
I don't suppose anyone can conjure up the text of the letters patent. I don't really see how we can make heads or tails out of this without it.

The NY Times piece has few clues but they don't fit well together. There's some mention of rent/tax. That would probably distinguish if from Dartmouth, which I seem to recall was a more akin to a charitable endowment.

If the nature of the grant looks like a municipal/public corporation then this is probably an entirely different kettle of fish (or perhaps fowl). I'm guessing that the king/parliament had the power to regulate it (or dissolve it outright), and that power would vest in his successors (the state I presume).

But for the mention of a board of trustees in the article, it seemed more like a recreational easement at first glance. Maybe this is really a royal park?

Regardless, I doubt the answer is in the DoI. The answer is probably in the charter itself.

In any event, it's pretty obscure.
12.12.2006 5:00pm
BobH (mail):
There may be no answer to this, but boy oh boy, it has led to an interesting -- if rather obscure -- discussion.
12.12.2006 5:38pm
John (mail):
There isn't really a good way to analyze this without the actual words that were used.

I do not think, for example, that the document said, "recreational activities like" fishing, hawking, hunting and fowling.

Yet, what it did say just before "fishing, hawking, hunting and fowling" is exactly what is needed here, and we are all flumfing around in the dark without any inkling of what was said.
12.12.2006 5:43pm
alkali (mail) (www):
Is this the document?
12.12.2006 6:09pm
Greg S. :
I may have to file a civil action against Orin for creating an attracitve nuisance here...

I managed to dig up what appears to the patent in question (as well as a prior one referenced in the 1686 letter patent). I can't vouch for their provenance, but solely for your amusement:

East-Hampton Pattent - 1686 (Dongan)

and

East Hampton Pattent, 1666 (Nicolls)
12.12.2006 6:12pm
alkali (mail) (www):
On further review, it appears that the montauk.com site was set up by the plaintiffs in this dispute. It's got a lot of the court papers available as PDFs.
12.12.2006 6:12pm
SabreRedleg:
12.12.2006 6:24pm
Thief (mail) (www):
One case that may be tangentially related: The Mattaponi indian tribe down near Newport News, VA, has been challenging a planned reservoir, in part, on the basis of one of these royal documents. The treaty in question is a 1677 treaty signed between three Virginia Indian tribes and the British Crown (at the time, King Charles II), which promised, among other things, that each indian village would have a three-mile boundary around it where settlers could not build homes or plant crops. Fast forward 300 years: the tribe is now claiming that this treaty is still valid, and would thus block the city of Newport News from building the reservoir, which would come within three miles of an Indian village. A quick search on Westlaw has found no definitive ruling on the case from the Virginia Supreme Court, but in their last decision the VSC seemed to say that treaty still did give the tribe some rights, though the claim was still denied. The case is Alliance to Save the Mattaponi v. Com., Dept. of Environmental Quality, 270 Va. 423 (2005). (Other provisions of the treaty, however, are enforced, including an annual required tribute of game paid to the Governor every November and the tax-free status of the two Indian reservations in VA.)

Hope this is useful.
12.12.2006 6:24pm
Greg S. :
I only skimmed the letters patent (really must get back to work now). They look like they establish a mostly unremarkable municipal coporation that operates under the law of England.

There's a couple of twists and turns, but this may be much ado about nothing. Particularly if the Boart of Trustees has bowed out of the fracass.
12.12.2006 6:29pm
Antinome (www):
Following up on what Orin said above about the amendment to the New York Constitution, according to a note on this copy of the New York Constitution:

Article I Section 15:


[Section 15 which dealt with certain grants of lands and of charters made by the king of Great Britain and the state and obligations and contracts not to be impaired was repealed by amendment approved by vote of the people November 6, 1962]


Still looking for the text of what it did say before repeal.
12.12.2006 7:46pm
Been There:
I'm only a humble law student, but as I recall, titles that come down to people via royal grants are still valid. This is an issue in some of the original 13 states where landowners are held to own the river bottoms adjacent to their property. (Trout fishermen have been arrested for trespass while wading in Virginia's Jackson River, for instance.)

On the other hand, if this patent is a grant of power to create a local government, I'd think it became extinct when New York organized as a state under its own laws, and would be entirely subject to repeal by the state.
12.12.2006 9:43pm
Greg S. :
I have no idea why I'm so enthralled with this odd story, but I did just slog through the grants.

They clearly established a municipal corporation, "Trustees of the freeholders and commonalty of the town of East-Hampton," with named officers. The crown granted to the trustees (and successors, assignees etc.):

all the aforesaid tracts and necks of lands within the limits and bounds aforerecited, together with all and singular the Houses, Messuages, Tenements, Buildings, Milnes, Milndams, Fenceings, Gardens, Orchards, Fields, Pastures, Woods, Underwoods, Trees, Timber, Feedings, Common of Pasture, Meddows, Marshes, Swamps, Plaines, Rivers, Rivulets, Waters, Lakes, Brooks, Streams, Beeaches, Quarries, Mines, Mineralls, Creeks, Harbours, Highways and easements, fishing Hawking, Hunting and Fowling, (silver and gold mines excepted,) and all other Franchises Profits, Commodityes and hereditaments whatsoever

So, this isn't by any stretch of the imagination just a grant of recreational enjoyment (fishing etc.) to the inhabitants and their successors in perpetuity. That might be an enforceable private interest.

What's more telling, I think (not really knowing anything about this area of the law), were some of the other aspects of the grant. It does require an annual rent be paid to the crown in a precise amount, time, and place. It prescribed the election of the trustees and that officers exterior to the town could convoke the board of trustees. That their "acts and orders be in no ways repugnant to the laws of England and of this province, which now are, or hereafter may be established…" It's a grant of some autonomy, as is true of any municipal corporation, but it doesn't look that novel.

I wouldn't be surprised if some crown patents still have effect, despite the change in the NY Constitution. But I just don't see how Dartmouth or even the Indian grants are much use to the particulars here. Without knowing any of the particulars, I suppose the repeal of the apparently relevant section the constitution might lend weight to the notion that municipal corporations no longer enjoy unusual autonomy by virtue of the crown.

I suppose if the state tried to tell the town that it couldn't go clam digging in its own waters, there might be still an issue. But I'm finding it hard to see how the town cannot regulate the operation of motorcraft on public waterways from anything in this grant.

The NYT article suggested some minor tension between the town trustees and town board (I assuming the later was erected by the state or county). If that's what this is all about, then the key grant was "waters, lakes, … harbors" etc., not fishing and fowling.

Puzzling.
12.12.2006 10:59pm
Lev:

freeholders and inhabitants of East-Hampton, hereinafter erected and made one body corporate and politique, and willed and determined to be called by the name of the Trustees of the freeholders and commonalty of the town of East-Hampton


sounds to me that the grant was not made to individuals as individuals, but was made to the specified individuals in their capacity as Trustees of the towne of East-Hampton. In which case, aren't


all the aforesaid tracts and necks of lands within the limits and bounds aforerecited, together with all and singular the Houses, Messuages, Tenements, Buildings, Milnes, Milndams, Fenceings, Gardens, Orchards, Fields, Pastures, Woods, Underwoods, Trees, Timber, Feedings, Common of Pasture, Meddows, Marshes, Swamps, Plaines, Rivers, Rivulets, Waters, Lakes, Brooks, Streams, Beeaches, Quarries, Mines, Mineralls, Creeks, Harbours, Highways and easements, fishing Hawking, Hunting and Fowling, (silver and gold mines excepted,) and all other Franchises Profits, Commodityes and hereditaments


the towne's, administered in trust by the trustees current trustee successors?

Additionally


TO BE BEHOLDEN to his said Majesty, his heirs and successors, in free and common soccage, according to the manour of East Greenwich, in the County of Kent, within his Majestye's realme of England, yielding, rendering and paying therefor, yearly and every year from henceforth unto our Soveraigne Lord the King, his heirs and successors, or to such officer or officers as shall be appointed to receive the same, the summ of one Lamb, or the value thereof in current money of this province upon the five-and-twentyeth day of March at New-York,


Have the towne's trustees been paying the lamb per year?
12.12.2006 10:59pm
Jay Myers:
Finally, that class in Constitutional History of the United States is going to pay off! At that time in England "fishing, hawking, hunting and fowling" were all actions reserved for those with express permission from the Sovereign. Thus, a commoner looking to add some meat to his diet would be executed for "poaching the King's deer/fish/birdie". Even if you were given patent to a tract of land, the King would retain that right unless expressly transfered. Likewise, in land grants the Sovereign also retained exclusive rights to scarce resources like gold and silver mines (they were still hoping to hit it rich in the new world like the Spanish had) and "The King's Oaks", which were large hardwood trees suitible for framing large warships. (England had already squandered her own supply of such lumber)

Reading the actual document, the grant of "fishing hunting hawking fowling and all other profits Comodityes Emoluments &hereditaments to said tract of land" is clearly in the section laying out what lands and property rights are included as part of the town. In terms of hunting, fishing, etc. that means that the town could then exercise the power to grant or deny permission that had previously been wielded by the King. I can't imagine anyone reading this and construing it to be the grant of an individual perquisite.
12.13.2006 4:22am
Nathan Tucker (mail):
The following is part of my post on The National Appellate Journal yesterday:

The Dagen Patent (links provided earlier in the comment thread) appears to establish a municipal corporation acting under the laws of England.

Consequently, since it established a government entity, than, as an initial matter, the American Revolution would have left the new government free to ratify its old obligations or pursue a new course of action. See generally State of New Jersey v. State of Delaware, 291 U.S. 361 ("In 1783, when the Revolutionary War was over, Delaware and New Jersey began with a clean slate. There was no treaty or convention fixing the boundary between them.")

According to the New York Times story, the New York Constitution ratified after the Revolution contained a provision protecting "grants of land made by the authority of the king." Under that provision, therefore, Mr. Lagana would have a plausible claim that New York had ratified the restrictions and obligations imposed on it under royal grants and, consequently, the Dongan Patent would still be enforceable today.

However, the New York Constitution was amended in 1962 to remove that provision. Since a sovereign, post-revolution state would be free to change its mind and disavow its pre-revolution obligations, it appears that Mr. Lagana would be out of luck.

The Supreme Court's decision in Dartmouth College is inapplicable in this scenario, as it only applied to state-private contracts as opposed to contracts between the colonies and their pre-revolution sovereign. The Treaty of Paris of 1783 also offers no assistance, as it only (among other things) safeguarded British property in post-revolutionary America.
12.13.2006 8:34am
NickM (mail) (www):
Jay Myers is right - except for one thing. For enough money, you can find a lawyer to construe a document however you want it.

Nick
12.13.2006 12:47pm
abb3w:
I fear that the charter argument can easily be turned back against the litigant, even presuming (as seems) it remains valid. The town can easily argue that the noise from jetskiers interferes with the enumerated rights to "fishing, hawking, hunting and fowling," (especially the first) and that the regulation is intended to preserve the freedoms explicitly granted by that charter.

I'm not even a law student; can I have a gold star anyway? =)
12.13.2006 3:22pm
Harry Eagar (mail):
When I lived in Virginia, a dispute arose about riparian rights. I no longer recall the details, but to answer Professor Kerr's original question, I do recall that some owners ended up with enforceable rights and others didn't, based on 17th century charters, which varied.

That was nearly 40 years ago, but old charters were at that time not held to have been extinguished.

My brother's father-in-law owns an oyster bed in Virginia, similarly established, although without a charter right, other natural oyster beds are public property.

I live in Hawaii, where Kingdom rights were not extinguished by the US takeover. In particular, hunting and gathering rights to Native Hawaiians are established in the state Constitution, even on private property.
12.13.2006 3:42pm