145 N.Y.S. 346 | N.Y. App. Div. | 1913
Lead Opinion
This action is in ejectment, plaintiff alleging that she is the owner and entitled to the possession of a small parcel of land that formerly constituted a part of the bed of the Mohawk river and now situate within the corporate limits of the city of Utica. The defendant, the City of Utica, is in possession of the lands claimed by plaintiff, said city claiming title thereto and the right to the exclusive possession thereof. Plaintiff claims title and bases her right to possession of the disputed premises upon a certain grant made in 1734 by King George the Second of Great Britain, through the English Colonial Government in the Province of New York to Joseph Worrell and others, by deed or letters patent, dated January 2, 1734. This grant was known as Cosby’s Manor, taking its name from the then English Colonial Governor of New York, and prefixed to the grant is the certificate of Governor Cosby and the other officers of the Colonial Government recommending the grant and describing the lands so to he conveyed as a part of a larger tract or parcel of land. The larger tract or parcel of land is referred to as follows: “ All that Tract of land in the Mohawks Country on both sides of the river between the Great Fflat or Plain above the fall and the Land granted to the wife & Children of Johan Jurck East as also another Tract of land hegiryiing on the West side of the Granted Lands on both sides of the said River running up Westward to a certaine Creek Called Sadahqueda and in breadth in the woods on both sides of the said River Six English Miles.”
The tract or parcel of land conveyed is described in such certificate and also in the grant or letters patent proper in substantially the same words and the following is the description as recited in the letters patent: “A Certaine Tract or Parcel of Land Scituate lying and being in the County of Albany on both sides of the Mohawks River beginning at a Certain place ■ on the South side of the said Mohawks River and the West side of a brook called Sedaghqueda where the said Brook falls into the said River and runs thence South thirty-eight Degrees West two hundred and thirty-eight Chains then South fifty-two Degrees East four hundred and eighty-three
Then following the usual words of a grant the tract or parcel of land conveyed is described as follows: “ All the said Tract or Parcell of Land so set out as aforesaid and so abutted Bounded and Described as is above Expressed Concerning the same Containing in the whole twenty-two thousand Acres of Land besides the usuall Allowance for Highways together with all and Singular the woods and underwoods Trees Timbers feedings pastures Meadows Marshes Swamps ways waters water Courses Rivers brooks Rivulets Runs and Streams of water Ponds Pools fishings fowlings hunting and hawking Mines & Minerals whatsoever (except Gold Mines and Silver Mines),” etc.
The plaintiff traces her title from said Cosby’s Manor grant through various mesne grantors to herself.
As before stated, the disputed territory formerly was a part of the bed of the Mohawk river and became valuable as land only upon the course and channel of the said river being recently changed, and through certain legislative enactments whereby it is claimed that the abandoned bed of the Mohawk river, including the disputed parcel, became the property of the city of Utica.
Prior to March 20, 1891, the disputed premises were within the bounds of the town of Deerfield,- Oneida county. On said last-mentioned date chapter 92 of the Laws of 1891 became effective bringing the said premises within the corporate limits of the city of Utica. On the same date chapter 93 of the Laws of 1891 was enacted and became effective straightening the Mohawk river and thereby changing its course to a location about half a mile northerly from the locus in quo, thus leaving the old channel, including the disputed premises, dry land. By virtue of the aforesaid legislation and through chapter 579 , of the Laws of 1901 and chapter 131 of the Laws of 1907, the city of Utica succeeded to whatever title and interest the State
Upon the trial of this action the learned trial justice held that at the time of the grant of Cosby’s Manor by King George the Second of Great Britain the jus privatum or title to the bed of the Mohawk river reposed in the king, subject to the jus publicum or right of the public to use the same and the water for all proper purposes of navigation, and, therefore, that the king had the clear right to include in his grant the bed of the river subject to the public use of the stream flowing over said bed. To that extent the learned trial justice sustained the contention of the plaintiff, but denied her the relief which she seeks by this action upon the sole ground that said Cosby’s Manor grant, under the interpretation and construction of the learned trial justice, did not convey the bed of said fiver, and that the same eventually ¿ame to the People of the State of New York, who succeeded to all the rights of Great Britain at the close of the Revolutionary war.
It, therefore, seems to me that this appeal presents two questions for our determination: First, was the title to the bed of the Mohawk river on January 2, 1734, in King George the Second of Great Britain, with power to grant and convey the same; and, second, did the king, by the letters patent above referred to, convey the bed of said river, including the parcel in dispute, to Joseph Worrell, plaintiff’s predecessor in title ?
In the orderly disposition of this case we will consider these questions in the order named.
As to the title of the Crown of England to the bed of the. Mohawk river, it will be observed that at the time of this grant and for more than sixty years there had been no dominion or sovereignty over any of the territory through which the Mohawk
The Mohawk river is a fresh-water stream, and while to some extent navigable it is not an arm of the sea, nor does the tide ebb or flow therein. It is difficult to appreciate how the king at the time of granting these letters patent could have regarded the Mohawk river as being an arm of the sea or navigable river where the tide ebbs and flows. If it did not occupy the status of such waters in England then the public had no rights therein and the bed of said river passed to the patentee under said grant as the bed of a fresh-water stream within the bounds of the grant. (Rogers v. Jones, 1 Wend. 237; Trustees of Brookhaven v. Strong, 60 N. Y. 56.)
At an early day the courts of our State gave to the Hudson river above tide water and the Mohawk river the character of navigable waters and extended to such fresh-water streams the law applicable to arms of the sea and navigable rivers of England where the tide ebbs and flows. Assuming the soundness of such doctrine, the title to the bed of such navigable waters was, at the time of this grant, in the king as jus privatum, subject to conveyance by him, while the use of the waters remained with the public as jus publicum and was inalienable.
The cases of People ex rel. Loomis v. Canal Appraisers (33
Thus it seems clear to me that the Crown of England, having obtained by the Dutch cession the bed of the Mohawk river, thereafter held the same as his individual property and had a cl'ear right to grant and convey the same. If he did by the Cosby’s Manor grant convey to plaintiff’s predecessor in title the bed of said stream, then the People of the State could never have received title thereto, because the same had been cut off by said grant long prior thereto.
Indeed, many of the decisions holding that the title to the bed of the Hudson river above tide water and of the Mohawk river was in the People of the State were in cases arising under Dutch grants. The grant of Cosby’s Manor was an English grant made long after the termination of Dutch rule in New York, and it seems to me that the common law of England should govern rather than the civil law. Nor do I believe
I am, therefore, of the opinion that at the time of the grant in question the King of Great Britain had the right to grant the bed of the Mohawk river.
Under the construction given by the courts of this State concerning conveyances of land along the Mohawk river, it is to be presumed that the title to the bed of the stream does not reside in the riparian owner unless it appears from the original grant or patent under which such owner claims that it was the clear intention of the sovereign to convey the bed of the stream. (Canal Appraisers v. People, 17 Wend. 571, 574.)'
And in such event the public are deemed to have the full right to enjoy the waters of the Mohawk river for the purposes of navigation, including the right to divert the waters of the stream for navigation outside of its natural bed.
I have found no case which presumed to take from an owner having a clear grant of the bed of the Mohawk from the English Crown the title thereto. Even in the case of People ex rel. Loomis v. Canal Appraisers (33 N. Y. 461, 500) Judge Davies recognizes the validity of a positive grant of the bed of a navigable river, as against the State, and in discussing Commissioners of Canal Fund v. Kempshall (26 Wend. 404), involving the bed of the Genesee river, concededly a navigable stream, makes use of this significant language: “There was evidence of a positive grant, such as would convey the fee of the bed of a navigable river where the tide ebbed and flowed. Such being the fact in that case, it, beyond all dispute, carried the case in favor of Kempshall.” Kempshall was claiming through a grant which included the bed of the Genesee river.
In the absence of an absolute grant and with regard to such portions of the beds of the Hudson below and above tide water and of the Mohawk river as had not been actually granted by
But regardless of the suggestion last made I am of the opinion that the Crown at the time of granting the letters patent in question had ample power to convey the bed of the Mohawk river, including the locus in quo, and that if the letters patent actually granted the bed of said stream along with other lands conveyed, at no time thereafter did the People of the State have or acquire any interest therein».
This brings us to the construction of the grant under which plaintiff claims. In the grant the lands are described as follows: “ A Certaine Tract or Parcel of Land Scituate lying and being in the County of Albany on both sides of the Mohawks River beginning at a Certaine place on the South side of the said Mohawks River and the West side of a brook called Sedaghqueda where the said Brook falls into the said River and runs thence South thirty-eight Degrees West two hundred and thirty-eight Chains then South fifty-two Degrees East four hundred and eighty-three Chains then North thirty-eight Degrees East four hundred and eighty Chains then North fifty-two Degrees West four hundred '& eighty-three Chains and then South thirty-eight Degrees West two hundred and forty-two Chains to the place where the same Tract began Containing twentyffwo thousand Acres of Land and the usual Allowance for Highways,” etc.
It will thus be noted that the land described is in form
Following the usual words of a grant, the lands conveyed are described as follows: “All the said Tract or Parcel! of Land so set out as aforesaid and so abutted Bounde4 and Described as is above Expressed Concerning the same Containing in the whole twenty-two thousand Acres of Land besides the usual. Allowance for Highways together with all and Singular the woods and underwoods Trees Timbers feedings pastures Meadows Marshes* Swamps ways waters water Courses Rivers brooks Rivulets Runs and Streams of water Ponds Pools fishings fowlings hunting and hawking Mines & Minerals whatsoever (except Gold Mines and Silver Mines),” etc.
Considering the acreage conveyed and upon a fair interpretation of the language of the grant, I am convinced that the grantor intended to include in his conveyance the bed of the Mohawk river.
The courts, morever, have long since set at rest any question as to lands under waters included within the bounds of a grant
It, therefore, seems that not only, by a reasonable construction of the language used in the grant, the Crown intended to convey the bed of the stream along with the lands described as “on both sides of the Mohawks River,” but having included said river within the bounds of the grant under the decisions mentioned the grant must be deemed to have conveyed the bed of said stream. I am, therefore, of the opinion that the plaintiff is entitled to the relief which she seeks in this action, and that the judgment of the court below should be reversed. In conformity with the requirements of section 131Y of the Code of Civil Procedure (as amd. by Laws of 1912, chap. 380), the findings of fact found by the trial court, numbered II to IX inclusive, should be stricken out and in place thereof the order of reversal should contain findings of fact substantially conforming to those contained in plaintiff’s proposed decision numbered from 1 to 9 inclusive; the order to be settled on two days’ notice.
The judgment should be reversed and judgment directed in favor of the plaintiff, with costs in this court and the court below to the plaintiff. The findings of fact numbered II to IX inclusive, as found by the trial court, are disapproved and stricken out and in place thereof findings are made by this court substantially conforming to those contained in plaintiff’s proposed decision numbered from 1 to 9 inclusive.
All concurred, except Kruse, P. J., and Robson, J., who dissented in an opinion by Kruse, P. J.
Dissenting Opinion
I concur with Mr. Justice Merrell that if the Mohawk river bed is included in the Cosby Manor grant, the city of Utica acquired no title thereto from the State; but I am of the opinion
While I might reach a different conclusion if the question were an open one, it seems to me that the Loomis case is controlling. I, therefore, vote for affirmance.
Robson, J., concurred.
Judgment reversed and judgment directed in favor of the plaintiff, with costs in this court and the court below to the plaintiff. The findings of fact numbered H to IX inclusive, as found by the trial court, are disapproved and stricken out and in place thereof findings are made by this court substantially conforming to those contained in plaintiff’s proposed decision numbered from 1 to 9 inclusive. Order to be settled before Mr. Justice Merrell on two days’ notice.