(dissenting.) I think this case should turn upon the proper construction of the statute laws of this state relating to the cultivation of oysters, and certain other statutes, grants, &c., bearing upon the question of the jurisdiction of towns over navigable waters.
The statute in force in 1876 conferred upon the selectmen of East Haven special and exclusive authority to designate for the planting and cultivation of oysters “the navigable waters included within a boundary line commencing in the line of division between East Haven and Branford, thence on said line to the intersection of a line so drawn as to cross the centers of Stony Island and Southwest Ledge, thence westerly along said last mentioned line to Southwest Ledge, thence northwesterly by a direct line to a line of division between the navigable waters of East Haven and Orange, thence northerly along said last mentioned line of division to a point west of the southerly limit of Morris Cove, thence easterly by the shortest line to low water mark, and thence *453by the line of low water to the place of beginning.” The concluding clause of that section confers authority upon the selectmen of Orange to designate for a like purpose any portion of the navigable waters in said town not previously designated and occupied. Gen. Statutes, p. 213, sec. 1.
The second section of the same statute reads as follows: “Any other town may appoint a committee of not more than five electors of such town, to hold office one year, and until others are chosen in their stead, which shall designate suitable places in the navigable waters in said town for planting and cultivating oysters, &c.”
In 1877 the second section was repealed, and an act varying from it in some respects was enacted in its place, the waters to be affected thereby being described as “the navigable waters in said town.” Session Laws of 1877, p. 200. At the same time, being approved on the same day, the first section was amended by adding, after the boundaries given above, the words following:—“But the oyster ground committee of said town may designate for the same purpose any places in the navigable waters of this state which lie southerly of that portion of said line crossing the centers of Stony Island and Southwest Ledge, which is between the westerly boundary of Branford and the westerly boundary of the town of East Haven.”
Seven days later a special act was passed, (Special Acts of 1877, p. 107,) defining the boundary lines between the towns of New Haven and East Haven as follows:—“A straight line commencing at a point four hundred and thirty yards due west from the western extremity of the shore at low water mark, west of the southwest corner of the fortification aforesaid [Fort Hale], and running southwesterly through, and three-fourths of a mile below, a point two hundred and thirty yards due west of the western extremity of Southwest Ledge, &c.”
It appears from the maps in the case that the disputed premises are east of the line last described and south of the line crossing the centers of Stony Island and Southwest Ledge, so that they are included among the places assigned *454to the jurisdiction of East Haven by the act of 1877 amending the first section, and are there described as the navigable waters of this state.”
Pursuant to that act the plaintiff acquired his title. It is very clear that at” that time the authorities of East Haven had power to designate any unappropriated territory within the limits described. The plaintiff therefore acquired a good title unless the defendants acquired a title to the same premises by virtue of the action of the authorities of New Haven in 1875. That brings us to the question—what jurisdiction had the authorities of New Haven over the premises in 1875 ? Their jurisdiction, and all the jurisdiction they had, was derived from the second section of the statute quoted above, (Gen. Statutes, p. 214,) unless the claim of the defendants (which will be noticed hereafter) is good, that New Haven, by the patent of 1685, extended to the state line in the middle of the Sound. The question then may be stated in another form—were the premises in 1875 within the limits of New Haven, or were they “in the navigable waters in said town ?”
It will be noticed that there is a distinction between the special power conferred upon the authorities of East Haven, and the general power conferred upon other towns, including New Haven. In respect to the former the first section of the statute confers jurisdiction oyer the “navigable waters” within certain defined limits, not being limited to the navigable waters “in the town;” so that all the waters within those boundaries were within the jurisdiction of East Haven for oyster purposes, whether they were within the chartered limits of the town or not. And the amendment of 1877 extending jurisdiction further into the Sound, describes the waters as the “navigable waters of the state,” while the second section of the general statute and the act of 1877 amending it, give to New Haven jurisdiction only over the navigable watei’S in the town.
It may be that this difference is accidental, that the legislature did not intend to give to East Haven more extensive jurisdiction than is given to other towns, and that the *455expression “navigable waters in the town” should be construed as embracing all the waters between the towns and the state line—thus practically covering the jurisdiction of towns for enforcing the laws. But if so it is difficult to assign a reason for making East Haven an exception, specially defining its powers and jurisdiction, and when referring to waters which are clearly in the Sound and. outside the charter limits of any town, describing them as “navigable waters,” and “ navigable waters belonging to this state.”
If the expression, “navigable waters in the town,” as applied to other towns, gives jurisdiction to the state line, there is no significance in the fact that East Haven is made an exception, and no force in the difference in the language used, but both expressions mean practically the same thing. But if we distinguish between the “navigable waters belonging to this state” and “ navigable waters in the town,” holding the former to be without and the latter to be within the charter limits of towns, the meaning of the legislature is plain, and we give effect to its obvious intention.
It is true we may not be able to perceive why East Haven should be the object of special legislation in this respect, yet, if it is clearly so, we must give effect to it and presume that the legislature had good reasons for its action.
The question then recurs, was the disputed territory embraced within the navigable waters in New Haven prior to 1877 ? The defendants claim that it was, and the foundation of that claim ,is the one alluded to above, that New Haven by the grant or patent of 1685 extended to the state of New York. I do not think that claim can be sustained.
The patent of 1685 describes the southern boundary of New Haven as follows:—“On the sea or sound on the south, from the mouth of Oyster River to the mouth of Scotch Cap or Stony River.”
The general rule of the common law locates that line as follows:—beginning at Oyster River and following the shore on the line of high water easterly and northerly until it comes to New Haven harbor, at a point nearly opposite Fort Hale, where objects and actions can be discerned on the *456opposite shore, thence across this harbor to the shore near Fort Hale, thence southerly and easterly on the shore to Stony River. The learned counsel for the defendants admit that the common law rule will so locate the line, and that the General Assembly on several occasions has recognized that as-the true line.
The line thus described is a long distance to the north of the premises in question; and if that is the true line and it is to determine the limits of the navigable waters in the town, it is decisive against the defendants’ claim. I think the common law rule should prevail, unless there is something to relieve the case from the operation of 'the rule. I see nothing in the case that should have that effect. No act of the legislature, no judicial determination, or other fact, is brought to our notice, which will justify a departure from a well established rule of interpretation. On the contrary the rule has been applied, I believe, in every case where the question has been raised. In the patent granted to the town of Saybrook in 1685 the town is bounded “ upon the sea on the south, and on Connecticut River on the east.” In another patent granted to Saybrook in 1704 the eastern and southern boundaries are thus described:—“On the east or easterly with the great river of Connecticut, and on the south or southerly with the sea or sound.” It was held that the eastern boundary of the town was the west margin of the river. Pratt v. The State, 5 Conn., 388. The validity of the rule is again recognized in Church v. Meeker, 34 Conn., 421.
In Keyser v. Coe, 37 Conn., 597, the Circuit Court of the United States applied the same rule of interpretation to the Warwick Patent, granted in 1631, and also to the charter of Connecticut, granted by Charles II. in 1662. This point therefore is too well established to be seriously controverted.
The limit of individual proprietorship is more circumscribed. That includes only the upland, in no case extending below high water mark, except in those instances where the owners of the upland have exercised the right of building wharves to deep water. On the other hand towns have exercised jurisdiction for certain purposes beyond the charter *457limits. In the case of Pratt v. The State, (supra,) it was held that, while the charter of Saybrook extended only to the margin of Connecticut River, its jurisdiction for the service of process and enforcing the laws extended to the center of the river. In the same case and also in Hayden v. Noyes, 5 Conn., 391, it was held that the town of Lyme had jurisdiction for the same purpose to the center of the river, although its charter extended only to the east line of the channel. I suppose it also to be true that all the towns bordering on the coast have exercised similar jurisdiction over the shore and the adjacent waters. Indeed this must necessarily be so. And perhaps that jurisdiction extends to the state line, so as to bring every portion'of the state within the jurisdiction of some town for political purposes.
The quesLon then is reduced to this—did the legislature mean by the words “navigable waters in the town” the navigable waters within the charter limits, or navigable waters within the jurisdiction for the administration of civil and criminal law? I think the words were used in the more resfrie sed sense. Such is their ordinary and obvious meaning. Ho one ten miles or more from the shore on the Sound off New Haven would suppose that he was in the town of New Haven in the ordinary sense of the term. “In the town” by itself means within its territorial limits. If it had been intended to embrace more, apt words would have been used expressive of that intent.
If used in the latter and broader sense their meaning is vague and indefinite. The charter limits of every town can be ascertained with reasonable certainty and with comparative ease, but the boundaries of the jurisdiction outside of those limits and over navigable waters for the purpose of executing the laws have never been determined with any degree of certainty, and are not easily ascertained. The extension of town lines into the sea is necessarily attended with considerable difficulty. A continuation of the course of those lines at the point of intersection would in many cases cause them to cross each other, and would be attended with much confusion and uncertainty. If they are to be extended *458on meridian lines it must be done without precedent and without principle to sustain it. The legislature may do so, but it has not done so as yet. Hitherto in the history of the state we have experienced no practical difficulty in this respect in exercising jurisdiction for the purpose of enforcing the laws, but as soon as an attempt is made to divide up the waters of the Sound by town lines for the purpose of designating oyster grounds, the difficulties are not only apparent but serious. No data have as yet been given by which it can properly be done. The remedy should come from the legislature.
Again—this enlarged and implied jurisdiction is for the purpose of discharging certain duties devolving upon the state and not upon the towns. The state itself enforces its laws, and that fact is in nowise changed or modified by the fact that it does so through the agency of officials elected by the towns. They are the arms of the state for that purpose. The town as such has no privilege or duty which requires it to assume jurisdiction beyond its charter limits; so that when we say that towns exercise jurisdiction' beyond those limits it is not strictly accurate; it is more correct to say that the state exercises jurisdiction through its agents appointed town-wise. The town as such has nothing to do with the service of civil process nor with the administration of criminal law. The election of officers in the several towns for those purposes is simply a convenient method of distributing those offices throughout the state; and the people in the» towns electing them are. acting more as a part of the sovereign power of the state than as inhabitants of the towns.
But again—this jurisdiction, such as it is, rests upon “ ancient, invariable, and undisputed usage.” Pratt v. The State, (supra). Now a jurisdiction acquired by usage is limited, not only in its nature and extent, but also in its object and purposes, to the usage creating it. There is no pretense that the usage had any other purpose than that of enforcing the laws. It had no reference whatever to the municipal affairs of the town.
*459The origin of this jurisdiction, its nature, its purposes, and the difficulty of defining its boundaries, afford a strong argument against the claim that the legislature had it in mind when it limited the jurisdiction of oyster committees to places in the town.
1 think therefore that the oyster committee of the town of New Haven in the year 1875 had no jurisdiction beyond the ordinary and legal limits of the town. If so they had no jurisdiction over the premises in controversy, and their designation, under which the defendants claim title, is invalid.
It has not escaped my observation that some of the later statutes assume that town lines extend into the sea, and in some cases they expressly establish such lines. I think however that it will be found that they all have reference to the oyster business, and were enacted after it was discovered that it was desirable to cultivate oysters in deep water. It seems to me that those statutes clearly show that where the legislature intended to give towns jurisdiction over waters outside of their charter limits, they have said so. When they have not said so the inference is that they did not intend it. These statutes, therefore, instead of supporting the position of the court, seem to me to afford a pretty strong argument against it.
I am of the opinion, therefore, that the verdict was just and should not be disturbed.