151 N.Y.S. 714 | N.Y. App. Div. | 1915
Plaintiff, in possession of certain land originally below high-water mark in Flushing bay, brings this action against the city of New York, as successor to the town of Newtown. (Laws of 1897, chap. 378, §§ 1, 8.) It- alleges that defendant unjustly claims an interest in said land and seeks to quiet its own title thereto. On September 30, 1897, the Commissioners of the Land Office of the State of New York adopted a resolution to the effect that about twenty and one-half acres of land lying between uplands fronting on Flushing bay, then belonging to John Clarke, plaintiff’s predecessor in title, and the pier head line as established by law, and under the waters of said bay, should be granted to said Clarke. On August 27, 1898, letters patent were issued under the great seal of the State, purporting to grant said land to him, and subsequently thereto the same has been substantially improved by the driving of spiles, the construction of crib work and the erection of a dock thereon. The parties stipulated that Flushing bay was a tide water bay. There is no dispute that the locus in quo is within the bounds of Clarke’s patent. Defendant’s counsel concedes that plaintiff’s title to the land in question is valid, provided that at the date of said grant the State had title to the lands therein described. But it contends that by earlier and colonial charters such land was granted to the town of Newtown, to whose rights it has succeeded. As this question is answered, this action must be determined.
Defendant has offered in evidence as sources or muniments of its title, first, a patent dated in 1645 purporting to be made by Willem Kieft, Director-G-eneral and Council of New Netherland, to “ Francis Doughty, and companions, their heirs and
So far as the instrument executed by the Indian sachems is concerned it may suffice to say that “ The Indians had no title which they could grant and which would be recognized in the courts of this country.” ' (Town of Southampton v. Mecox Bay Oyster Co., 116 N. Y. 1.) If, however, we turn to the language of this instrument as a possible aid to- the construction of subsequent patents we find that the line there runs northeastward to a certain creek called “ Sackhickneyah, where Wessel’s mill stood; so bounded by the Bay side till it come to the mouth of Flushing creek, so commonly called; so running towards the south-east bounded by the creek side, till it extends itself to the south side of the hills upon the line. ” It is not entirely clear whether this instrument makes a distinction between Flushing bay and Flushing creek as we now know them, or whether the words “so bounded by the- Bay side” do not refer to the body of water sometimes spoken of as the East river and sometimes as the sound. If we assume that the entire body of water, a portion of which is now known as Flushing bay, and the stream running
If we pass next to the Nicoll patent, it appears by the recitals therein that its purpose was “ for a confirmation unto the said freeholders and inhabitants in their enjoyment and possession of the premises-” of which they had “heretofore made lawful purchase.” If Flushing creek, as the word is employed in the instrument executed by the sachems in July, 1666, includes therein Flushing bay, it is natural that in the Nicoll patent, in March of the same year, the words should be employed with a similar meaning The Nicoll patent bounds the land granted on the “east by Flushing Creek; north by the Sound.” There is no distinction therein between the creek and the bay. If we then construe the words “Flushing Creek ” as comprising the entire body of water on the east and northeast side of the upland, no portion of the land in question was included therein. The words in the Dongan patent of 1686, that the land was bounded on “the east by Flushing creek and a line to be drawn from the head thereof due south, extending to the south side of the hills ” and “ on the north by the Sound,” can only under the circumstances permits asimilar construction. Thus construed, we have a fixed and definite boundary line, to wit, high-water mark on the easterly and northeasterly line of the land granted for its entire distance, and until the course of the boundary is changed by an east and west line running along the sound to the north of the upland. Otherwise construed, we are left without definite information as to where Flushing creek ends, where Flushing bay begins, where it terminates, and whether, if the east line is projected north, it is a projection of the east, west or center fine of Flushing creek proper. If. the southerly extremity of the pier line, established by law as shown by the map in evidence, might be considered to be where Flushing creek ends and Flushing bay begins, a projection of either of these lines in a direct course would exclude from the territory of Newtown a large portion of upland between such line so projected and the shore of the sound. Such a construction is neither justified nor permissible. But there are other difficulties in the way of defendant’s contention. The learned corporation counsel- contends
Beginning with 1833, we find various legislative acts either inconsistent with the claim of Newtown to ownership of lands under water in Flushing bay, or wholly unnecessary if such claim was well founded. (Laws of 1833, chap. 41; Laws of 1833, chap. 140; Laws of 1835, chap. 146; Laws of 1848, chap. 211; Laws of 1849, chap. 127; Laws of 1884, chap. 375; Laws of 1885, chap. 469; Laws of 1913, chap. 62.) We find further that beginning with the year 1853, and'extending down to December, 1897, applications were made in thirteen separate instances to the Commissioners of the Land Office for grants of land under the waters of Flushing bay, and that these applications were subsequently granted. In most instances notice of the application was served upon the town clerk of the town of Newtown, and in many instances the town officers actively participated in- procuring the grants sought for. After consolidation of the town of Newtown and the former city of New York, and in 1902, another application was made by the owners of abutting upland for a grant of land under the waters of Flushing bay. Notice of such application was given to the mayor of the city and the commissioner of docks. The corporation counsel, appearing for the city, requested that in the grant to be made two provisos should be inserted, the first excepting “ the right, title and interest of the City of New York in the lands under water in front of projected streets ” (See Laws of 1901, chap. 466, § 83), and the second to the effect that the “ City of New York may at any time hereafter acquire title to the premises herein granted upon payment to the patentee, his heirs, successors and assigns, the amount paid by such patentee to the State for said premises, together with the value of the improvements thereon.” Beyond this no objection was made to the granting of the patent. These' suggestions were acted
The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.
Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.