After the absolutism of the King was destroyed by Magna Chacta, at all events, it became a settled principle tenaciously clung to until it became undisputed, that public rights, like that of navigation in the navigable waters of the realm, were inalienable by the King, being vested in him not individually, but in the crown or sovereignty in trust for the people at large. The crown grant under which the plaintiff’s lessors derive whatever title they have to Great South Bay is subject to this principle, if there were need to invoke it. But the terms of the said grant do not purport to grant in whole or in part, or to impair in any way, the public right of navigation. The grantees took subject to such public right (Moore’s History of the Foreshore [3d ed.], pp. 446, 533). This the learned counsel for the plaintiff admits, but seeks to reduce the servitude to the navigation of the- bay in its natural state at the time of the grant, and as it should thereafter be at any given time from generation to generation, unchanged except by wind and tide. These are the words of his brief: “We do not claim the absolute owncrshiji of these lands under water and fishing rights subject to no servitude whatever; they are subject to the public right of navigation. But this servitude is the navigation of the bay in its natural state ”. On the contrary, the public right of navigation always included the right of government to facilitate and improve navigation, by the erection of beacons, the removal of obstructions, the cutting and deepening of channels, etc., which latter right in this country is vested in the national government by the provision of its constitution for the regulation of commerce with foreign countries and among the states (Gilman v. Philadelphia, 3 Wall. 725; State of Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. [U. S.] 421; South Carolina v. Georgia, 93 U. S. 4; Shively v. Bowlby, 152 id. 1; Gibson v. U. S., 166 id. 269). And the grantees from the crown in this case took subject to this measure of the public right of navigation. It could hardly be contended that the government could not appropriate an acre of these lands under the waters of this bay to *577set a lighthouse and its appurtenances on it without compensating the plaintiff and his lessors for the use thereof they would thus be deprived of. The right of such public use existed when the sovereign grant under which they claim was made, and was in no way impaired thereby. Whatever right the plaintiff and its lessors may have to deposit oysters, or hides for the tannery, or any other chattels, on the bottom of this bay, is subject to such public use, and therefore an obligation to remove such property and surrender possession of the land for such public use at any time. The same is the case in respect of the government keeping or providing a sufficient depth of water to meet the necessities of navigation from generation to generation as channels shift or fill up, or the draughts of vessels are made deeper.
Notwithstanding the said admission in the plaintiff’s brief, the contention seems to be mooted that the express grant of the right of fishing being made, it excluded every other right in the crown to the extent that they should be inconsistent with each other. • The rule in "respect of public grants is the reverse, i. e., that nothing is granted thereby unless expressly. They are construed strictly against the grantees (Moore’s History of the Foreshore [3d ed.], p. 782). Moreover, the contention could only be applicable where the thing claimed is something the crown could grant. It may also be well to note that the plaintiff is not exercising a right of fishery in this bay. He is only using it as a depository of. oysters brought from elsewhere to be improved in size and flavor by its peculiar bottom and mixture of salt and fresh water.
If the government or the defendant should enter upon the plaintiff’s oyster beds and destroy or take up the oysters without giving the plaintiff reasonable opportunity to take them up and remove them, an entirely different question would be presented.
The judgment should be affirmed.
Woodward, Jenks, Hooker and Miller, JJ., concurred.
Judgment affirmed, with costs.