73 N.Y.S. 617 | N.Y. App. Div. | 1901
The action was brought to recover the possession of two lots of land on the east side of First avenue, between One Hundred and Third and One Hundred and Fourth streets, in the city of Hew York. The complaint alleges that one John Baird was, from the 25th of July, 1878, and down to the 17th of October, 1891, seized in fee simple and in lawful possession of the premises in question, and that he died on or about the 17th of October, 1891, leaving a last will and testament, whereby he devised the said real estate to certain trustees named-in the will upon certain trusts therein specified; that two of the trustees thereafter resigned and two of the plaintiffs were duly appointed trustees in their place, and that the plaintiffs are now trustees under the said will and entitled to the possession of the property in question ; that on or about the 6th of September, 1892, the defendant Mary A. Campbell unlawfully entered into and upon said premises, and has ever since continued therein, and the complaint asks to recover the possession of the' property and damages for withholding the same. The defendant Mary A. Campbell answered, denying each and every allegation of the complaint, and upon the issue thus framed the action was brought on for trial and the case submitted to a jury, who found a verdict in favor of the plaintiffs upon which judgment was entered, and from which judgment the defendant Mary A. Campbell appeals.
Hpon the trial it appears to have been conceded that the appellant had no title to the property, that she held possession under a bargain and sale cieed made by John Allen, her father, dated September 6, 1892, the consideration of which is not stated. There was also in evidence what purported to be- a bargain and sale deed
In examining plaintiffs’ title to the premises, we start with the concession made by defendant upon the trial, that the plaintiffs’ predecessor in title was the grantee in a deed from one Boyd, dated July 25, 1878, which purported to convey the premises in question in fee simple, being a full covenant warranty deed, and that under this deed he remained in possession of the premises until the time of his death; and also with the fact, which was testified to by the appellant and her sister, that their father entered into possession under this forged deed, and that prior to the date of this forged deed he had had nothing to do with the property. The plaintiffs’ predecessor in title being in possession under the deed from Boyd, before mentioned, Boyd’s title to the premises at the time he executed the deed to Baird will now be considered. The premises in question were a portion" of a large marsh which originally extended from the high land which ran down to the waters of the East or Harlem .river at about Ninety-third street north to about One Hundred and Fifth street and westerly to what is now Third avenue. At the north of this marsh there was a strip of upland that ran down to the river which seems to have been about 400 or 500 feet wide, bounded on the north by Mill creek, which extended .westerly beyond Fifth avenue. The physical condition of this marsh prior to the time that First and Second avenues and Avenue A were filled in would seem to have been low, wet land, at times covered by the tide flowing in from the East or Harlem river, upon which grew salt grass or sedge, and which from the very earliest times had been used by the owner of the upland to cut sedge or salt hay and for such other uses as were suitable to the character of the land. This marsh was intersected by several creeks into which the water' flowed and from which it would appear the marsh was overflowed. The evidence on the part of the plaintiffs tended to show that this marsh was only covered with water at times- of extraordinary high tides, generally caused by a strong east wind
There was considerable evidence introduced upon the trial as to the character of this land and of the extent to which the ordinary ebb and flow of the tide covered it. Mr. McGrown, a son of the owner of the upland prior to 1833, was called as a witness for the plaintiffs. He testified that his parents had lived in a house on the strip of upland just north of these marshes, which subsequently came to be known as the “ Red House,” and his testimony extends much further back than that of any of the other witnesses called in this case, His parents left this property in the year 1833, and he describes the conditions existing prior to that time. From his testimony it would appear that this marsh upon which grew salt hay and sedge was covered with water at the extraordinary high tide which occurs in the spring equinox, or such high tides as were caused by strong easterly winds, but that the daily ordinary tides did not cover these marshes;- that during all the time .that his parents occupied the premises they claimed the exclusive right to these marshes, prevented others from using- them for any purpose, and used them for the ordinary purposes for which they were available, cutting the salt grass and sedge. This testimony was-somewhat confirmed by the recollections of others who had lived in the neighborhood before the land was filled in.
Hone of the witnesses called by the defendant went back to the
At the time of the conquest of the province of Hew York by the British there was located upon the lower end of the island of Manhattan a city called Hew Amsterdam, and upon the upper end of the island a village called Hew Harlem. There is no record of any charter having been granted to the village of Harlem prior to the occupation by the British, but shortly thereafter a village was incorporated and a grant made to its inhabitants by the Royal Governor. The question as to the rights acquired by this village thus incorporated and its inhabitants has been the subject of considerable discussion in the courts of this State, but it is now established that by the original Harlem patent a town or village was formed. This original patent was granted by Governor Hicholls in May, 1666. It recites the existence of the town or village of Hew Harlem, “ now in the tenure or occupation of several freeholders and inhabitants who have been at considerable charge in building as well as manuring, planting,
This patent was confirmed by two subsequent patents; one by Governor Nicholls in the year 1667, and one by Governor Dongán in March, 1686. (Id. pp. 159, 162.) Prior to the conquest by the British, it would appear that the farm, of which this marsh was a part, was in possession of, or claimed by, one J ohn de La Montagne, and in the year 1672 the inhabitants and freeholders of Harlem granted to John de La Montagne a piece of land with the meadows thereto annexed, named “ Montagné’s Point;” with the meadows in the bend of Hell Gate, and it was under this grant that the heirs and grantees of de La Montagne have held and claimed title to the upland and the meadows in question. ■ Subsequent to this grant by the inhabitants
The effect of these two grants to the inhabitants and freeholders of Harlem and the city of Hew York was discussed by the Court of Appeals in Mayor v. Hart (95 N. Y. 443). The property, the title to which was in question in that case, was a piece of land at the foot of One Hundred and Twenty-ninth street and the Third avenue, and included the strip of land between high and low-water marks on the Harlem river. It was there held that at the time of the conquest of Hew York by the British the common law of England entered with them, and that under the common law the grant to the inhabitants and freeholders of Harlem ended at high-water mark along the river; that the tideway upon the river between the high and low-water mark had not passed under the Harlem patent, but had passed to the city of Hew York under the Dongan charter. The question settled by that decision was as to the strip of land along the river between high and low-water mark. The question here presented is as to a large tract of meadow or marsh land extending along the river for upwards of a half mile and of nearly the same depth, distinctively a marsh upon which grew grass and sedge. It would seem that such a piece of land came directly within the description contained in the Harlem patent. To the village of Harlem or to its inhabitants and freeholders is granted all land to the north and east of a line drawn across the Manhattan island, together with all the soils, creeks, quarries, woods, meadows, pastures, marshes, waters, fishing, hunting and fowling. Within this description would certainly be included these marshes. Ho more apt terms could be devised to describe this particular piece of marsh land along the river, intersected by creeks upon which salt hay and grass grew, valuable to the farmer as appurtenant to his farm. It is well settled that surrounding circumstances and the construction given to them by the parties may be considered to reach
The limit of the property granted by the Harlem patent to the inhabitants and freeholders of Harlem was also considered by the Court of Appeals in Sage v. Mayor (154 N. Y. 61); Jarvis v. Lynch (157 id. 445) and Matter of City of New York, (168 id. 134). The result of these cases, applying the rule established in Mayor v. Hart (supra), has been to confirm the title of the city of New York to the tideway between high and low-water mark upon the Harlem river, extending the property granted to the inhabitants and freeholders of Harlem to the high-water mark upon the river. In Sage v. Mayor (supra) attention is called to the confirmation ■ by the first Constitution of this State of “ grants of land within this State made by the authority of the said King, or his predecessors ” (see Const. 1777, §§ 35, 36); arid it was held that the right of the people to improve the tideway between high and low-water mark reserved in the grant to the inhabitants and freeholders of Harlem permitted the State, or its substitute, the municipal corporation of the city of New York, to improve the tideway for the purpose of navigation or commerce, notwithstanding that it thereby inflicted injury upon the riparian rights which attached to the property abutting on the river which had been acquired under the grant to the inhabitants and freeholders of Harlem. These cases all refer to the tideway, strictly speaking, namely, to that strip of land abutting upon the river which was included between the ordinary high and low-water mark.
The rule for the construction of grants where the property granted is bounded upon the sea or an arm of the sea is founded upon the treatise “De Fore Maris'' by Sir Matthew Hale, which was published in 1787 in a collection of tracts by Francis Hargrave. Chapter 6 of that treatise relates to the ownership or propriety which a subject may have in the seashore, and in it there are recognized three sorts of tides. There are: Fvrst, high spring tides, which are the fluxes of the sea, at those tides which happen at the two equinoxes; but the line embraced within these tides does not belong to the crown, “ for such spring tides many times overflow ancient meadows and salt marshes, which yet unquestionably belong to the subject.” Second. “The spring tides which happen twice every month at full and change of the moon, and the slioar in question is by some opinion not denominated by these tides neither, but the lands overflowed with these fluxes ordinarily belong to the subject prima facie, unless the King hath a prescription to the oontrary.
We have in this case a grant to the inhabitants and freeholders of Harlem, which within its terms would include these marshes. We have a cotemporaneous construction of the grant, by which the grantees conveyed the marshes as a part of a farm which included the upland adjacent, and we have the continued occupation and use of these marshes by the owners of the upland for many years, with the fact that the city of Hew York, the subsequent grantee from the crown óf all the land not included within the Harlem patent, makes no claim to the property and has made none for over 200-years from the date of the patent, and during all that period has-recognized the title of the grantees; taxing and assessing the land, and refusing to make claim thereto. I think that this cotemporaneous construction by the parties to these grants to the village of' Harlem and by the city of Hew York, coming down to the present time, and the use of the property to which attention has been called, would resolve any doubt, if doubt there be, in favor of including these marshes within- the grant to the inhabitants and freeholders of Harlem, so that they never passed under the subsequent charters to the city of Hew York. .
■ If we are right, therefore, in our construction of the Harlem patent and that those meadows and marshes passed under it to the inhabitants and freeholders of Harlem, it would seem to follow that the plaintiffs have shown a good title to the premises in question.
There is no question presented upon this appeal, except as to the plaintiffs’ title, and it follows that the judgment and orders appealed from should be affirmed, with costs.
Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., ■concurred.
' Judgment and orders affirmed, with costs.