143 N.Y.S. 650 | N.Y. App. Div. | 1913
On December 21, 1880, the People of the State of New York, acting through its Commissioners of the Land Office, granted to William R. G-race by letters patent a parcel of land in the town of Northfield at Staten Island in the county of Richmond. The westerly and northerly boundary lines were thus described: “ Commencing at a monument where the westerly boundary of the premises hereby conveyed intersects the southerly shore of the Kill Von Kull and running thence north seventy-seven degrees fifteen minutes east one hundred and fifty feet; thence north fifty degrees twenty minutes east two hundred and ninety feet; thence due north seventy feet; thence north fifty-five degrees thirty minutes west two hundred sixty-four feet; thence north forty-six degrees thirty minutes east one hundred and fifty-two feet; thence due north eighty feet; thence north forty-six degrees thirty minutes west two hundred and seventy-five feet; thence north four degrees forty-five minutes east twelve feet six inches; to the northerly line of the pier and bulkhead line as established by the Legislature of the State of New York and thence along that line south eighty-five degrees fifteen minutes east six hundred and thirty feet.” This grant was recorded in the office of the clerk of Richmond county on January 19, 1883. Defendant has since purchased and is now the owner of such title as he thereby acquired. On March 8, 1887, the People of the State of New York, acting through said Commissioners] granted to William Dooley a parcel of land in said township the easterly boundary line of which was therein described as follows: “ Beginning at the easternmost point of the meadow of Wil
constitutes the locus in quo of this controversy. Commencing in the year 1906 and subsequently thereto, defendant constructed
At the date of the grant to Grace the statute defining the powers of the Commissioners of the Land Office was as follows: “ The Commissioners of the Land Office shall have power to grant in perpetuity or otherwise, so much of the lands under the waters of navigable rivers or lakes, as they shall deem necessary to promote the commerce of this State, or proper for the purpose of beneficial enjoyment of the same by the adjacent owner, but no such grant shall be made to any person other than the proprietor of the adjacent lands, and any such grant that shall be made to any other person shall be void.” (1 R. S. 208, § 67, as amd. by Laws of 1850, chap. 283.) “ The powers of the commissioners shall also extend to the lands under water, adjacent to and surrounding Staten Island.” (Id. § 69.) The physical facts conceded or established by proof, as they existed at that time, were as follows: Grace was the owner of the upland shown on said diagram marked thereon “ Defendant’s Upland. ” It does not appear who was the owner at that time of the upland marked “ Plaintiff’s Upland.” About 1875 the United States government had erected a dyke, as shown thereon, the westerly end of which was distant not more than fifty feet from the northwest corner of the upland now claimed by plaintiff. South of said dyke, before any structures were placed on the land under water, the water was not more than three feet deep at mean high tide, and at low tide the land was exposed and consisted of mud flats except where the creek shown on said diagram emptied into the Kill Von Kull, at which point the water did not exceed two or three feet in depth.
The cases principally relied upon by plaintiff (Lally v. New York Central & H. R. R. R. Co., 123 App. Div. 35; Town of Brookhaven v. Smith, 188 N. Y. 74; Rumsey v. New York & New England R. R. Co., 114 id. 423; 133 id. 79; Saunders v. N. Y. C. & H. R. R. R. Co., 144 id. 75; Barnes v. Midland R. R. Terminal Co., 193 id. 378) are without exception cases where the title of plaintiff or his predecessors to the upland,
Upon the present evidence this action may not be maintained, and the judgment appealed from must be reversed upon questions of fact as well as law, and a new trial must be granted, costs to abide the final award of costs.
Jenks, P. J., Thomas and Stapleton, JJ., concurred; Hirschberg, J., not voting.
Judgment reversed upon questions of fact as well as law, and new trial granted, costs to abide the final award of costs.