160 N.Y.S. 813 | N.Y. App. Div. | 1916
The action is in ejectment. The appeal is from a judgment entered upon a dismissal of the complaint at the close of the trial. The case has been three times tried. It has been once before the Court of Appeals (210 N. Y. 198), and twice heretofore before this court (138 App. Div. 715; order amd., 140 id. 885; 150 id. 893).
In 1893 the Lake George .Camp Association acquired from one Seelye a ten-acre tract of land situated in the county of Warren, N. Y., described as bounded on the west by the shore of Lake George at low-water mark as it winds and turns. The association laid out the tract into streets, avenues, blocks and lots. The conveyances made by the association granted a right of way over the streets and avenues, but reserved title thereto in itself. About 1898 the association became insolvent and the unsold portion of the tract was sold under execution. It was bought by one Griffin to whom conveyance was made by the sheriff in 1898. The plaintiffs in 1900 became the owners by conveyance from Griffin of blocks 10 and 13 which bordered upon the lake. The blocks were separated by White avenue which was thirty feet wide and ran westerly to the lake. In 1900 the defendant became the owner by conveyance from Griffin of four lots in the tract, no one of which abutted either upon the lake or upon White avenue. In 1900 the defendant, against the protests of the plaintiffs, erected a boathouse and dock on the shore of the lake. The boathouse and dock extended about twenty-three feet crosswise of White avenue and about seven feet in front of block 13, This action
Upon the first trial of the action the concession was made, and the court found, as stated in the prevailing opinion, that the waters of Lake George were public waters with the title to the bed of the lake up to low-water mark in the State, and with the title down to low-water mark in the owners of the upland. Upon appeal it was held by a closely divided court that the right of access of the owners of the upland was an incorporeal hereditament, and that ejectment did not lie in favor of the owners of the upland by reason of defendant’s interference below low-water mark with plaintiffs’ access to the waters of the lake. (138 App. Div. 715; order amd., 140 id. 885.) The court accordingly affirmed the judgment so far as appealed from by the plaintiffs, and reversed it so far as appealed from by the defendant, and granted a new trial.
Upon the second trial the court dismissed the complaint as not stating a cause of action. Upon appeal to this court the judgment was affirmed. (150 App. Div. 893.) Upon appeal to the Court of Appeals the judgment was reversed, and a new trial granted, the court holding that the action related to the upland as well as to the boathouse and dock.
Upon the third trial of the action the court found upon new evidence then offered that a substantial portion of the boathouse and dock was above low-water mark, but wholly below high-water mark; that the plaintiffs were the owners in fee of the portion of White avenue in question; that the defendant had no interest in the lands of the plaintiffs except the right to pass over the portion thereof known as White avenue; and that the lands of the plaintiffs were bounded on the west by high-water mark, and hence that the defendant was not in possession of nor withholding from the plaintiffs any lands belonging to them. The court thereupon dismissed the complaint. From the judgment entered thereon this appeal was taken.
We think the holding of the trial court that the plaintiffs’ title extended only to high-water mark was contrary to the
The State is not disputing plaintiffs’ claim of ownership to low-water mark. The defendant was not shown to have been in any way privy to the rights of the State. The State, if possessed of the title to the bed of the lake, unquestionably had the right to convey its rights to the plaintiffs’ predecessor in title. This proof of upwards of twenty years’ record title and possession was prima facie sufficient for the maintenance of the action, especially as against the defendant, a stranger to the title. (9 R. C. L. 844.) While the defendant claimed that the title below high-water mark was in the State he offered no proof whatever to that effect. The finding of the courseems to have been based upon the legal conclusion that the State was possessed below high-water mark of the title of all fresh water navigable lakes. In the case of Oakes v. De Lancey (133 N. Y. 227, 231) the plaintiff sought to recover the sum paid by him to the defendant for about four acres of land situated between high and low-water mark on Long Island Sound and embraced in the lands purchased by the plaintiff from the defendant, the plaintiff claiming that the defendant’s title did not in fact extend below high-water mark. Finch, J., in writ
As to a stream, its navigability in fact had, under the common law of England, no relevancy to the question of the title of. its bed. (Fulton Light, Heat & Power Co. v. State of New York, 200 N. Y. 400.) The prerogatives of the several States over land under water depends upon the law of each State. (Hardin v. Jordan, 140 U. S. 381; cases cited in Kean v. Calumet Canal Co., 190 id. 482.) The cases cited by the respondent as authorities for the contention that the State is possessed of the title to the bed of Lake George to high-water mark, nearly all relate to waters where the tide ebbs and flows, as to which concededly the common law of England, subject in some instances to grants by predecessors in title, applies. Neither are decisions relating to grants of lands bordering on the Hudson and Mohawk rivers applicable, as under the Dutch grants the beds of those rivers did not pass to the grantees, but were reserved to the Crown, and passed from the ownership of the Netherlands to that of England, and at the close of the Revolution to the State of New York. (Fulton Light, Heat & Power Co. v. State of New York, 200 N. Y. 400, 413.)
The ownership of the bed of Lake George to high-water mark is probably susceptible of proof by reference to grants by the State or by its Dutch or English predecessors in title. This' can very likely be satisfactorily established upon the retrial of the action. In general the right of access of a riparian owner to waters forming a boundary of his land is stated in Gould on Waters (3d ed. § 149), as follows: “Riparian rights exist on the banks of navigable waters as well as of unnavigable streams * * *. But a littoral proprietor like a riparian proprietor has a right to the water frontage belonging by nature to his land, although the only practical advantage of it may consist in the
The judgment should be reversed and a new trial granted, with costs to the appellants to abide the event.
All concurred.
Judgment reversed on law and facts and new trial granted, with costs to appellants to abide event. The court disapproves of the finding that the plaintiffs’ title extended only to high-water mark.