18 Barb. 14 | N.Y. Sup. Ct. | 1853
The judge was clearly right in holding that the deed of 1688 to Wilhelmus Demeyer; the ancestor of the plaintiff, carried a title to the center of the stream. The law is well established, that when lands are bounded by a stream or river not navigable or above tide water, the grantee takes usque filum. aquae, unless the stream or river be expressly excluded from the grant by the terms of the deed. (Canal Com'rs v. The People, 5 Wend. 423. Luce v. Carley, 24 Id. 451.)
Nor did it need any proof, in terms, that the stream was not. navigable or above tide water. The fact sufficiently appeared from the existence of the fall and dam, and the uses to which
Whether the judge was right in charging that the defendant had failed to show title out of the plaintiff, to the north half of the stream or fall, depends upon the legal effect to be given to the recitals in the deed from the trustees of the corporation of Kingston to William Demeyer and Abram Van Gaasbeek Chambers, in 1709, and to the evidence tending to show that William Demeyer had reconveyed the premises in question to the trustees. If such a reconveyance was made, then the defendant obtained a perfect title to the property in controversy, through the deed from the trustees to Baltus Kieffer, in 1805, independ- • ent of any adverse possession. By the deed of 1709, the trustees conveyed to Demeyer and Chambers certain other falls and water privileges and four acres of land further down said creek, and the consideration of said deed was stated in the following words; “ Whereas said trustees, for divers good causes and considerations them thereunto moving, but more and especially for and in consideration of a certain fall, situate and being in y= Esopus kill or river, betwixt ye lands of William Demeyer and y‘ wh did belong unto Hendrick Alberse, together with jd run or course of water for ye driving of mill or mills wh was upon y° 25th day of February, 1694-5, conveyed unto y= sd Wm. Demeyer by y= trustees of sd corporation, wh sd fall, run or course of water y= sd Wm. Demeyer doth by these presents for himself, his heirs, executors and administrators forever release and acquit, and to be and forever to remain in common, have bargained,” «fee. This deed was satisfactorily proved. It was read in evidence from the book of records kept by the trustees, where it was recorded by William Demeyer, the grantee, who was
Two important facts are stated in the recital of this deed. The first is, that on the 25th of February, 1694-5, the trustees conveyed to William Demeyer the falls in controversy. By the deed of 1688, Demeyer took only to the center; that is, he acquired by it the northerly half of the stream. If a further conveyance of the falls was made to him in 1694-5, he must have taken, under it, the southerly half, and thus have become the owner of the entire falls. The second fact appearing by the recital is, that the principal consideration for the deed of 1709 was the reconveyance to the trustees, by Demeyer, of the falls in question.
These recitals are evidence of the facts thus stated, as between the parties to the deed and those deriving title under them. In Torrey v. The Bank of Orleans, (9 Paige, 659,) Chancellor Walworth said, “A recital of a,fact in a deed is, as against the grantee in such deed, and all persons claiming under him, through that deed, evidence of the facts recited therein, so as to save the necessity of further proof thereof by the grant- or or those who claim under him. The acceptance of the deed operates as an estoppel upon the grantee and those who claim under him, as against the grantor and his assigns or representatives.” This rule is well settled. (See Carver v. Jackson, 4 Peters, 83, 88, and Sinclair v. Jackson, 8 Cowen, 586.) The latter case recognizes the principle that a man who admits the existence of a fact or deed, either by reciting it in an instrument executed by him, or by acting under such instrument, shall not be received to deny its existence. This principle is applicable to the recitals in the deed under consideration. The plaintiff, who claimed title under the deed, and asserted and
These facts being established, it is shown that the property in question was purchased from William Demeyer, and paid for by the trustees, in 1709. It also appears that no claim was ever afterwards made to the property by William Demeyer, or his descendants, until this action was brought—a lapse of about 140 years; that in 1805 the party who had thus re-purchased the property, conveyed it by deed to Baltus Kieffer, whose father had been in possession of the southern half of the stream, under a deed, for 20 acres .bounded by the creek on the south side, since 1756; and that the defendant succeeded to the rights and possession of Baltus Kieffer, in 1836.
It was not controverted but that the defendant, and those under whom he claimed, had been in possession of the southern half of the stream since 1756, and had used it for milling purposes since 1784. It was not contended that the plaintiff, or those under whom he claimed, ever had any actual occupation of the northern half of the stream, at the falls, or had ever made any use of it, but the plaintiff rested his right to recover upon his paper title alone. It was denied that the defendant’s dam had been extended across the stream till within 20 years, and so the jury found; though it appeared that the defendant, and those under whom he claimed, had, long before, occasionally done some act north of the center of the stream, for the purpose of securing the benefit of the water, at their will.
A grant of land will never be presumed, unless the lapse of time is so great as to create the belief that it was actually made; or unless the facts and circumstances in the case show that the party to whom it is presumed to have been made was legally or equitably entitled to it. (Jackson v. Moore, 6 Cowen, 725. 1 Cowper, 102. Bull. N. P. 74. 3 T. Rep. 157.) It is enough if this case comes within either of these alternatives. I think it comes within both. The lapse of time, and the absence of claim or 'occupancy, is sufficient to warrant the belief that a counterpart or separate grant was actually executed; and certain it is that the trustees were legally and equitably entitled to such conveyance.
When there is a contract to sell land, and the vendee has entered into possession, and paid the purchase money—this being a case in which a court of equity would at once decree a specific execution—a court of law will, after a great lapse of time, presume a conveyance, and that the legal title is in the vendee. (5 Cranch, 262. 2 John. 221, 226. 7 Id. 5. 3 Wend. 149,152. 2 J.J. Marsh. 436. 4 Wash. C. C. R. 356, 367. 1 Leigh, 183. 1 Cowen & Hill's Notes, 369, 370.) It is only necessary that the contract should be fulfilled by payment on the part of the vendee, and a rightful possession, so that the mere form of conveyance only is wanting. (Harp. Eq. Rep.
The principle upon which these decisions are founded is of great importance to the public and to individuals, in quieting titles to land. Presumption in favor of a probability, and to protect the equitable right of an occupant, is made to supply the place of positive proof, when an ancient title deed has happened to be lost, or where a fact is to be established which occurred at so remote a period that no cotemporary is living to testify to its existence. I think this principle is applicable to the case before us, and that it fully warrants the presumption of the executing of a counterpart, or of a grant, from William Demeyer to the trustees of the corporation of Kingston, in pursuance of the agreement and conveyance of 1709. Whether the defendant and those under whom he claims had or had not kept a dam extended across the whole width of the creek, over twenty years, it is certain they had owned and occupied on the easterly side of the creek, and to the center of it, for ninety-four years, and they had used the water at the falls as a mill privilege for sixty-six years, without being disturbed or questioned; and while so using it they had held a deed covering the whole property in controversy, for forty-five years, under which they claimed to own it. At the time that deed was executed, the counterpart of the deed of 1709, or the deed then executed by William Demeyer, was probably in existence and in the possession of the trustees, and it may well be supposed that upon that evidence of their title before them they executed the deed of
If I am right in this conclusion, the judge erred in holding that the defendant had failed to show title out of the plaintiff to the north side or half of the stream; and the exception to such part of the charge was well taken. For this reason the judgment at the circuit must be reversed, and a new trial ordered.
Watson, Parker and Wright, Justices.]