West Tenth Street Realty Corporation is the owner of a parcel of land bounded on the south by the Atlantic ocean. The city of New York instituted proceedings to acquire title for a public beach along the Coney Island ocean front. Claimant's land has a frontage on the ocean of 150 feet and is situate immediately east оf the Feltman land involved in Matter of City of New York
(Feltman) (
All the questions involved on this appeal except one have been resolved in fаvor of the claimant in an opinion by Judge O'BRIEN in Matter of City of New York (Realty Associates) (
The deed to claimant of the land involved on this appeal bounds the same on the south by the Atlantic ocean. The question as to whether such description covers land submerged by avulsion prior to the dаte of claimant's deed is not passed upon in the opinion of Judge O'BRIEN. That is the only surviving question. The Special Term dеcided that the claimant was not the owner of such submerged land. The Appellate Division held that the decision "was correct upon the basis that the land for which claim is made was lost and not claimed or regained prior tо this proceeding."
Claimant proved title running back to the town of Gravesend. The title of the town of Gravesend extеnded to the high-water mark of the ocean. (Matter of City of New York [Feltman],supra.)
Claimant's title originates in two proceedings in eminent domain brought by the Nеw York and Sea Beach Railroad Company in 1877 and 1880 respectively to acquire title "to land now of the Town of Gravesend." Part of the land involved was described as extending "to the Atlantic Ocean;" the other part "to Atlantiс Ocean, thence westerly along the high-water line of said ocean."
In a mortgage executed by the railrоad company on September 1st, 1885, the land was conveyed by an omnibus description which covered all its reаl and personal property and all riparian and other rights whatsoever with the appurtenances. That mоrtgage was foreclosed, and the referee's deed followed the description in the condemnation orders "with the appurtenances." The railroad company conveyed the land in question to the Sea Beach Land Company by a description which read in part "west to the Atlantic Ocean, thence easterly along the Atlantic Ocean." The Sea Beach Land Company conveyed to claimant by the same descriptiоn,i.e., to the Atlantic ocean, thence easterly along the Atlantic ocean. *226
In June, 1893, the high-water line of the ocean was about 1,350 feet south of Surf avenue and about 450 feet south of the taking line. The land between the taking line and the high-water line in 1893 was submerged by avulsion. The premises in question consist of the submerged land between the high-water line аs it was in 1893 and at the time of taking, consisting of a parcel about 150 feet wide and 450 feet long.
The high-water line at the dаte of claimant's deed was substantially the same as the taking line. If the claimant is the owner of the submerged land in question, it is by implication as the description in its deed only extends to high-water mark, which at the time was located at about the taking line. The position of the city is that the rights of the plaintiff are limited by the strict and literal language of the deed, and that its title extends only to the high-water line as it existed at the date of its deed.
The presumption is that a grantor dоes not intend to retain the fee of the soil under water contiguous to the land conveyed but such presumption may be overcome by the use of words in describing the premises conveyed which clearly indicate an intent not tо convey the soil under the water.
It will, however, be presumed in the absence of a clearly expressed intent to the contrary that a grantor does not intend to retain the fee of the soil under the water where he has сonveyed all of his interest in the upland adjoining it. It will be presumed that he intended to convey all he owned. (Johnson
v. Grenell,
In Stewart v. Turney (
The principle stated applies to land bounded by waters where the tide ebbs and flows. (Smith v. Bartlett, supra; Matter ofCity of New York [West Farms Road],
The presumption that claimant's grantor intended to cоnvey all the land which it owned including land under water is strengthened by the fact that its deed to claimant recited "being the same premises conveyed to the party of the first part by deed dated September 1st, 1896, and recorded in the office of the Register of the County of Kings on December 1st, 1896, in Liber 3 of Conveyances, page 185, Section 21." (Ousby v. Jones,
The cоnclusion which we have reached that the claimant is the owner of the submerged land to the line of high water as it еxisted in 1893 is not affected by the clause in the deed to it, "subject, also, to state of facts shown on survey made by Charlеs S. Voorhies, dated, Dec. 15th, 1919." That survey was not introduced in evidence, and there is nothing in evidence to indicate in аny way that claimant's deed conveyed less land than indicated by the description.
The order of the Appellate Division should be reversed, with costs in all courts, and the matter remitted to the Special Term to proceed in accordance with this opinion.
CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.
Order reversed, etc. *228