11 N.Y.S. 87 | N.Y. Sup. Ct. | 1890
Lead Opinion
The defendant claims the right to Hinckley pond, and has appropriated the same to its own use for thepurpose of gathering ice from its surface for commercial purposes, and two actions have been commenced against it by the plaintiffs, one for the recovery of the premises, and the other for the recovery of damages for their unlawful invasion. The pond is a small natural lake bounded on the east and west by mountains, and on the north and south by very low swamps. It is fed by two streams from the
It is now the insistance of the defendant that each of the deeds for the land bordering upon this water operated to convey the land to the center of the-pond, and, therefore, the plaintiffs have no title to the land covered by its waters. Pausing here for a moment, in view of such contention, it becomes appropriate to inquire whether the predecessors of the plaintiffs ever lost the title to the bed of this pond. The owners conveyed a portion of land by definite boundaries, and there is nothing in the deeds to denote an intention to buy or sell any land not included within the boundaries expressly defined, and there is no principle of law to justify the grantee in going béyond the boundary line and taking another parcel. He cannot claim by force of his grant, and, if the doctrine for which the defendant contends is to prevail, the acquisition by construction and operation of law might exceed what was obtained by express grant. It is a fundamental principle of law that one parcel of land not mentioned in a deed cannot pass as an appurtenant to another distinct parcel expressly granted by precise and definite boundaries. If all the parcels of land conveyed around this pond by the predecessors of the plaintiffs were protracted, according to the description in the deeds, all the land called for by his deed would be allotted to each grantee, and the pond would remain; and thus it is demonstrated that the premises in question were not embraced in the deeds, but are excluded therefrom by the terms of the descriptions, which manifests a plain intention to grant and receive a specified quantity of land specifically described. There is nothing in these deeds to indicate that the parties intended more than they said, and the presumption of lawis that the title remains in the original proprietors until such presumption is overcome. There is no rule of the common law that half of a stream shall pass by a grant of the adjacent land. All the law does is to indulge a presumption in favor of a shore owner, in the absence of evidence. The claim of the defendant is interposed by virtue of the common law, butthatsystem of jurisprudence has been much modified in its application to our lakes, because in England it was confined to navigable rivers, and the sea. We can indulge no inference for the purpose of enlarging the grants of the plaintiffs’ predecessors, for the law makes no intendment concerning such grants. The grantees take to the lines prescribed by the deeds, and their limits can be extended ho further by construction. Presumption is never entertained to enlarge an estate, and a deed cannot be made to operate on property which one party did not intend to purchase, and the other party did not intend to sell. We must not deceive ourselves because the land in question is covered with water. We aré dealing with private rights alone, unembarrassed by any questions of sovereignty. -We have a natural, unnavigable, fresh-water pond, in which the state has no rights, whose bed is private property, the owner of which has made grants of land on its borders bounded by the pond, and the naked question now under consideration is whether the grantees, by force of such grants, have acquired title to. the bed of the pond. The land so covered with water was owned by the an-, cestors of the plaintiffs, and it was the subject of private ownership, like other land. That proposition lies under the shadow of a great name, for Lord Hale, in his treatise De Jure Maris, said; “One man may have the river, and the others the .land adjacent.” Being such owners they might sell and convey the same, or they might sell and convey the land adjoining, and in neither case would the deed carry more land than it described. The water over this land does not change it in respect to its ownership. There were many lakes in the land included in the Philips patent, but the land which they covered all passed to the patentee, and the title to all the other land unconveyed
Thus far our examination has proceeded upon the legal effect of the grants of land around the pond, and our conclusion upon principle is that these deeds convey only the land which they described, and the title of the grantees therein extended to the water, and no further. But if the case is to be decided upon authority, the result will be the same. The case of Wheeler v. Spinola, 54 N. Y. 378, was so nearly like this as to be an authority, for there the land was bounded by the pond, and it was held that a boundary upon se natural pond carries title to low-water mark only, and Judge Earl, in delivering the opinion of the court, said: “Neither can the rule as to riparian ownership be applied to this pond which is applied to ordinary fresh-water streams. A boundary upon it does not carry title to its center, but only to low-water mark. Such is the rule as to boundaries upon natural ponds and lakes.” Such is the doctrine of the court of appeals at this time, so far as any expression of that court has reached the public. The case of Smith v. Rochester, 92 N. Y. 463, depended upon many questions and considerations not involved in Wheeler v. Spinola, and this latter case was not referred to, and the inference is that the court did not intend to take any departure from the law as there laid down. The head-note in the Rochester Case is unsupported and misleading. In the Massachusetts case of Waterman v. Johnson, 13 Pick. 265, Chief Justice Shaw said: “A large natural pond may have a definite low-water line, and then it would seem to be the most natural construction, and one which would be most likely to carry into effect the intent of the parties, to hold that land bounded upon such a pond would extend to low-water line, it being presumed that it is intended to give to the grantee the benefit of the water, whatever it may be, which he could not have upon any other construction.” In the case of Commissioners v. People, 5 Wend. 447, Chancellor Walworth, in his opinion, said: “The principle itself [the common-law rule] does not appear to be sufficiently broad to embrace our large fresh-water lakes and inland seas, which are wholly unprovided for by the common law of England.” In the ease of Bradley v. Rice, 13 Me. 201, it was held that where the 'land in a conveyance was bounded by a pond of water the grant extended only to the margin of the pond, and expressions of thesame purport are found in Kingman v. Sparrow, 12 Barb. 206, and Railroad Co. v. Valentine, 19 Barb. 491. “When land is conveyed bounding upon a lake or pond, if it is a natural pond, the grant extends only to the-water’s edge. ” Ang. Water-Courses, § 41. “Where the. boundary given is a natural pond or lake of fresh water, the boundary line will, it seems, run along-the low-water mark of the pond, though other cases speak only of the water’s edge.” 3 Washb. Real Prop. p. 443, § 47. The writer refers to many cases in Massachusetts, New Hampshire, Maine, and Vermont as authority for the-statement in the text. In the case of Child v. Starr, 4 Hill, 382, Chancellor Walworth lays down the following rules respecting the bed of a river, and they .are also applicable to a fresh-water natural pond. “The bed of a private-river is a substantive matter of grant, and can only pass as such. It can never pass as incident or appurtenant to a grant. It is land, and land cannot be incident or appurtenant to land. A conveyance of one acre of land can never be made by any legal construction to carry another acre by way of incident or appurtenance to the first. That land, and that land only, which, is expressly embraced in and forms the subject-matter of a grant, passes under it.” Again he said in the same opinion: “But there is no presumption against direct proof, nor any prima facie intendment in the presence of an express grant; such grant fixes it°s own limits, and determines the rights of
The second defense introduced by the defendant is less meritorious than the first. Assuming what is very doubtful,—that the deeds upon which the claim to an adverse possession is founded are sufficiently definite and certain to form a basis for such a claim,—there has been no possession or occupation under them such as the law requires to constitute an adverse possession. There has been neither cultivation nor improvement, and no protection by inclosure, and there has been no use for the supply of fuel or fencing timber for any purpose. Neither was there any improvement of any part of the premises so that the other portions can be deemed to have been occupied for the same length of time as the part improved, and without some or one of these the land is not deemed to have been possessed for the purpose of constituting an adverse possession. Code Civil Proc. § 370. The rule of law respecting partial occupancy applies to land used in one body, according to the custom of the country, but has no application to this case. No part of this land was inclosed or occupied, and such use as was made of the shore at the south-west corner was neither permanent nor continuous. Moreover the procurement of deeds from persons not shown to be the owners, and an entry such as was made under them in this case, is entirely insufficient to initiate a claim to an adverse possession. Beach v. Mayor, etc., 45 How. Pr. 368; People v. Livingston, 8 Barb. 255; Sharp v. Brandon, 15 Wend. 597.
Again, the predecessors of the plaintiffs, being the owners of the land, were at all times constructively in the possession thereof, unless it was in the actual hostile occupation of another, under a claim of title, (Bliss v. Johnson, 94 N. Y. 242,) and the defendant shows no occupation of the land at any time. Taking ice from the surface of the water was no occupation of the land. It was akin to a profit taken from the soil of others, and even that was repeated but once a year; but the claim of a right to take ice from the pond can only be sustained by a prescription, and such a claim cannot be sustained as a prescriptive right, because it cannot exist separately from an ■estate, to which it is attached. Roe v. Strong, 107 N. Y. 360, 14 N. E. Rep. 294; Pearsall v. Post, 20 Wend. 123; Ang. Tide-Waters, 272; 2 Greenl. Ev. § 540; Gould, Waters, § 25. In the case of Wheeler v. Spinola, supra, it wtas held that the cutting of salt grass, annually, upon an uninclosed lot for 20 years, was insufficient to constitute a possession adequate to confer title, and that was manifestly a much stronger case than this. In the pa§9
Another principle of law is that a fee will not be implied from user where an easement would secure the privilege enjoyed. Roe v. Strong, 107 N. Y. 359, 14 N. E. Rep. 294; Gould, Waters, § 22. In no respect, therefore, have the acts done upon the premises in dispute responded to the requirements of the statute, or been sufficient to constitute a possession which can be deemed adverse.
Neither are the plaintiffs estopped from the assertion of their legal rights, because they were never aware of the expenditures of money upon or near the premises, and neither the defendant nor its predecessors have been influenced by any conduct of the plaintiffs, or those under whom they claim. Moreover the trial judge has found that no considerable expenditures for permanent improvements were made upon the premises in question. Our examination has proceeded far enough to show that the judgment appealed from is erroneous, although there are other important and interesting questions involved which we do not examine or decide. The judgment should be reversed, and a new trial granted, with costs to abide the event. '
Cullen, J., concurs.
Dissenting Opinion
(dissenting.) These two actions depend upon the same ques tian. One of them is in ejectment, and the other is for trespass. The primary inquiry in each is whether or not the plaintiff owned the premises in question at the commencement of the actions. The Zooms in quo is a pond in Putnam county, sometimes known as “Hinckley Pond,” and again as “Croton Lake,” and there is ground in the evidence for the statement that the pond was sometimes known as “Muddy Brook, ” although the latter name has for many yeará been applied exclusively to the outlet. The learned trial judge, upon conflicting evidence, has found that there is a slig t current running through this so-called pond from its inlets to its outlet; It is a natural basin,—a widening of two small streams at and below their confluence; but the evidence, we think, justifies the inference that it is and must be classed as a water-course, and our conclusion is that it was properly treated as such. It is non-navigable except for small row-boats or skiffs. The plaintiffs’ ancestors undoubtedly owned the land about this so-called pond, and by various conveyances, bounded in part by the pond, have conveyed away the whole, or substantially all, of the adjacent upland. They say, however, that because these various conveyances run “to the pond,” or to some monument on the land at the water, and thence along the pond, sometimes by given courses and distances, and sometimes without any, but generally to some other monument on the bank, and thence away from the water, and so about to a place-of beginning, the water edge is therefore a boundary on that side, so that the water and the land under water have never, as they claim, been conveyed, and are still owned' by them. The learned trial judge, in view of all the facts submitted to him, has held that these conveyances run to the center or thread of the stream, of which the pond is only a part. We conclude that this is the correct view. It has been so clearly put in the opinion delivered at the trial-term, that, notwithstanding the exceedingly ingenious, exhaustive, and plausible argument of plaintiff’s counsel, it is unnecessary to do more than express-our concurrence in the conclusions there expressed. The plaintiffs are undoubtedly correct in the position that, generally speaking, fixed monuments-are conclusive when referred to in grants. But the case of a monument on the bank of a stream seems an exception to that rule, unless it clearly and affirmatively appears that it was the purpose to exclude the water, and land under it, to the thread of the water-course. The authorities cited, and tliosetherein referred to, clearly show that, where a grant of land is bounded by a