130 Misc. 103 | N.Y. Sup. Ct. | 1927
The contention of the plaintiff is that the city of New York is the owner in fee of all the lands lying between high- and low-water marks on the island of Manhattan and that the property involved in this action is between these marks. The defendants urge that all the lands under the waters of Sherman’s creek were granted to the town of New Harlem by Colonial Governors and that the city never became seized thereof. During the years 1666 and 1667 Governor Nicolls of the Province of New York granted to the freeholders of the town of New Harlem certain lands “ eastward to the Town and Harlem River ” together with all the “ creeks * * * waters * * * in any wise appertaining ” to said land. In 1686 Thomas Dongan, Governor-in-Chief of the Province of New York, issued a charter to the city of New York granting to the city “ All the waste, vacant, unpatented and unappropriated lands ” within the city “ extending and reaching to the low-water mark in and by and through all parts of said City of New York and Manhattan’s Island aforesaid with all rivers, rivulets, coves, creeks, ponds * * * in the said City and Island.” There would appear to be some ambiguity as to whether the Nicolls grant conveyed to the freeholders of New Harlem title to the lands under the water of Sherman’s creek extending to the low-water mark. The Court of Appeals, however, in several cases has decided that the city of New York is the lawful owner of the lands under the water surrounding Manhattan island. (Mayor v. Hart, 95 N. Y. 443; Sage v. Mayor, 154 id. 61; Jarvis v. Lynch, 157 id. 445.) In each of these cases the court in considering the Nicolls grant held that the lands between the high- and low-water marks were not conveyed to the inhabitants of New Harlem by that grant but rather to the city of New York under the Dongan charter. It, therefore, follows that the question to be determined is: What lands under the waters of Sherman’s creek does the city of New York own and is the property described in the complaint included in such lands?
Numerous maps have been offered in evidence purporting to define the low, high and mean high-water marks. The plaintiff and the defendants agree that the mean high-water line is the only mark to which the city of New York can claim title to the lands in question. This line is the boundary between the private uplands and the public lands under water. The various maps offered by the plaintiff fail to define the mean high-water mark, nor does the testimony adduced from the numerous witnesses called establish with any degree of certainty the location of this imaginary line. The defendants, on the other hand, have offered in evidence a copy of a map (Defendants’ Exhibit A) prepared by