165 N.Y. 171 | NY | 1900
This appeal presents a case unfortunately lately of frequent occurrence (First Nat. Bank v. Miller,
From the opinion of the court it appears that the Appellate Division regarded the question of the plaintiff's record title and the defendant's claim of title by adverse possession as properly decided by the trial court. But it was of opinion that on the testimony the court below should have found that the defendant and her grantors had acquired by prescription the right to take ice from the pond as a profit a prendre or easement appurtenant to the farm owned by them. For this reason it reversed the judgment. While the evidence would have justified a finding of the Special Term that the defendant and her predecessors had taken ice from the pond for a period of more than twenty years, that was not conclusively established. The most that can be said is that the testimony presented a question of fact for determination by the trial court, a determination which the Appellate Division had the power to review and reverse if it was deemed erroneous, provided it saw fit to reverse the judgment for errors of fact. The state of the proof did not present a question of law either to the Appellate Division, or to this court. (National Harrow Co. v. Bement Sons, supra.) Our power is, therefore, limited to an inquiry whether there is any evidence to support the findings of the Special Term. For, if based on sufficient evidence, they unquestionably justify the conclusions of law and the judgment awarded thereon.
The only attack on the plaintiff's title which it is necessary to notice is the claim that under the patent to him, Killian Van Rensselaer, the original patentee, did not acquire title to Normanskill creek and the land forming its bed. This claim is based on the proposition that, under the civil law by which Dutch patents are to be construed, the waters and bed of a stream navigable in fact, though lying above the ebb and flow of the tide, like the beds of other highways, remain in the sovereign and do not pass under his grants. To this claim there are two answers: First, the Special Term has found that the Normanskill is not navigable. Second, Killian Van Rensselaer received a subsequent patent or grant from the Colonial government after the colony had passed into the *175
hands of the English. This patent, which must be construed according to the common law, granted to Van Rensselaer "all and every * * * rivers and creeks" on the premises, and undoubtedly conveyed the title to the streams and their beds. (Smith v.City of Rochester,
The order of the Appellate Division must be reversed and the judgment of the Special Term affirmed, with costs.
GRAY, O'BRIEN, HAIGHT, CULLEN and WERNER, JJ., concur; PARKER, Ch. J., and LANDON, J., not sitting.
Order reversed, etc.