55 N.Y.S. 14 | N.Y. App. Div. | 1898
The plaintiffs in this action are the owners, of a farm on the north side of Wickham’s pond (formerly Perry’s pond) in the town of Warwick, county of Orange. The defendant is the owner of a farm on the southwest side of the same pond, and this action is brought for the purpose of restraining the defendant from cutting ice and otherwise trespassing upon the lands covered by the waters of this pond, the plaintiffs claiming to own the said lands. Both parties assert title from the Waywayanda patent, granted to twelve patentees by Queen Anne in 1703, and, as the burden is upon the
The title to the farm now owned and occupied by the plaintiffs does not proceed from the same source as their alleged title to the pond, and it is important that this fact should be kept in mind in considering this question. It is conceded that the first conveyance of the property in dispute, after the granting of the patent, was made by Abraham Hasbrouclc and others, as commissioners appointed to apportion the property of the grant among the several owners, and to appropriate enough to pay for the expense of the survey and division, and that the property so conveyed consisted of what was known as the expense lot, containing 2,064 acres, including the pond now in dispute. This property was sold by the commissioners to John Wisner at public auction. At the time of this sale 'William Wickham was interested in the property by reason of an agreement between himself and the said John Wisner, and on the 8th day of September, 1766, about three months after the sale above mentioned, the said John Wisner conveyed by deed to the said William Wickham a one-third part of the expense lot of 2,064 acres, which was described as “containing the whole of said Perry’s Pond,” and which embraced a considerable part of the land now concededly owned and occupied by the defendant, who traces his title to the land to the same source. In a deed from John Wisner to Henry Wisner, 3d, dated July 20, 1771, lands “along the said pond” were conveyed, and it may be that the defendant, who is the successor in
From the date of the deed from John Wisner to William Wick-ham to the death of George D. Wickham, son of William Wickham, in 1845, there is no evidence of a conveyance of Perry’s pond, with the possible exception above mentioned, though the defendant’s predecessors in title appear to have had free access to the pond, both for the purpose of watering their cattle and for boating and fishing. William Wickham died about 1814, and the title to his real estate passed to his son George by will. George D. Wickham died about the year 1845, leaving a last will and testament, of which George F. Tallman and Ambrose S. Hurray were appointed the executors, and by which they were empowered to sell and convey his real estate. In 1847 these executors conveyed “ All that tract of land situate in the town of Warwick, aforesaid, called Wickham’s Pond, and the lands adjoining the same,” to Bridget Wickham. The said Bridget Wick-ham, in Hay, 1849, conveyed the greater part of Wickham’s pond to William F. Clark, the father and testator of the plaintiffs, to whom the same was devised. In the Hovember following she conveyed the remaining portion of Wickham’s pond to Hary Ann Wisner. In June, 1881, the said Hary Ann Wisner, having in the meantime married the father of the defendant, conveyed to A. Ruggles Holbert that portion of Wickham’s pond which she held under the deed of Bridget Wickham, and in 1892 the said Holbert conveyed his title to the plaintiffs. If this chain of title was not interrupted, we should be free to acquiesce in the judgment of the trial court; but it appears from the evidence in the case that Hary Ann Wisner (widow of Henry B. Wisner, who concededly held the title to the farm now owned by the defendant), who took title from Bridget Wickham to that portion of the Wickham pond not conveyed to William F. Clark, gave a deed of all her interest in the farm, as well as to a certain portion of the tract of land under water, to her children, in Hay, 1863. These children, Elizabeth, Phebe and Hary, took title to the premises under the will of Henry B. Wisner, subject to the dower right of Hary Ann Wisner; and after the marriage of Hary Ann Wisner to Thomas E. Durland, father of the defendant, and on the day on which Hary Ann Wisner (Dur
At this time (May 4, 1863) Mary Ann Durland was the owner of the portion of the pond conveyed in the above description, and the title she conveyed to her children. These children duly conveyed that title to Thomas E. Durland, unless the last clause quoted above is held to be an exception to the grant. The grantors, for and in consideration of $23,675, undertook to convey, not the lands above water, but “ all that certain other lot of land situated in said Town of Warwick, bounded and described as follows.” The deed then proceeds to bound and describe the farm “ containing four hundred and fifteen 13-100 acres,” with the line running across the lake. Without any words indicating an intention to limit the grant of the “ four hundred and fifteen 13-100 acres,” it is mentioned, by way of calculation, “and deducting therefrom 8 70-100 acres for land covered by the waters of Wickham’s Pond, leaving four hundred and six 41-100 acres of land.”
That this was not intended to be excepted from the grant is clearly indicated by the language of the conveyance which, in the very next sentence, declares that the grant is “ subject nevertheless to such right of uses
In applying this latter rule in the case of Newsom v. Pryor (supra), Chief Justice Marshall says: “ As in this case, the second line is to run south 894 poles to a stake crossing the river. This distance will not reach the river, and must be continued to 1,222 poles to cross the river. The distance must be disregarded, and this line so extended as to cross the river, or the distance must control the call for crossing the river. These difficulties have occurred frequently, and must be expected to occur frequently where grants are made without an actual survey. * * * The courts of Tennessee, and all other courts by whom causes of this description have been decided, have adopted the same principle, and have adhered to it. It is, that the most material and most certain calls shall control those which are less material and less certain. A call for a natural object, as a river, a known stream, a spring, or even a marked tree, shall control both course and distance. These decisions are founded on two considerations. Generally speaking,- it is the particular intention of the purchaser to acquire the land lying on the stream called for, as being more valuable than other land,” etc.
“ The deed,” say the court in the case of Blackman v. Striker (142 N. Y. 555), “ must be held to convey all the interest in the lands which the grantor had unless the intent to pass a less estate or interest appears by express terms or be necessarily implied in the terms of the grant.” The land under water was of no use to the grantors; they did not reserve to themselves any right of way over the premises which they conveyed, and there is no reason to think that they had any means of access to the land without becoming trespassers, while the amount of the consideration would indicate clearly that the purchaser intended to secure to himself all beneficial interest in the property. “An exception or reservation in a deed,” say the court in the same case, “ is to be taken most favorably to the grantee, and if there is uncertainty or ambiguity in the language, he should have the benefit of the doubt or the ambiguity. They should be taken most strongly and construed most strictly against the grantor whose words they are and against him who stands in his place, and if an advantage can be gained from an uncertainty or ambiguity in the words, the grantee or person standing in his place is entitled to the benefit of it.” With these rules in mind we are unable to find any theory on which the clause “ and deducting therefrom,” etc., can have the effect of limiting the interest purchased by the grantee in the deed to Thomas E. Durland. Such a reservation could be of no use to the grantors, unless to embarrass the grantee, and, in the absence of certainty in the language, it would be a perversion of justice to give effect to such a motive.
Thomas E. Durland having been seized of the fee to that part of Wickham’s pond lying west of the line passing through the pond, and embracing an area of something over eight acres, we are unable to agree with the 11th finding of fact by the trial court: “ That thereafter the said Mary Anne Wisner, having become by marriage
The defendant, whose title descends from Thomas E. Durland, . being the owner in fee of the lands under water in that portion of Wickham’s pond where the trespass is alleged to have occurred, and where the defendant has for a long series of years cut ice for storage, the plaintiffs have failed to establish their right to the injunction granted by the trial court.
We have not thought it necessary to go into the discussion of adverse possession, because it clearly appears that the defendant has a complete title to so much of the pond as is necessary for his own
The judgment should be reversed.
All concurred, except Hatch, J., absent.
Judgment reversed and new trial granted, costs to abide the final award of costs.
Sic.