1 Johns. Ch. 166 | New York Court of Chancery | 1814
The foundation of the bill is the legal right of the plaintiff to the three islands in dispute; and his claim to the assistance of this court arises from the peculiar state of the property, and the oppressive nature of the litigation which it involves. His case states a proper ground of equitable jurisdiction, and if the title he sets up was sufficiently established at law, before he came here, or was
I have accordingly been led to direct my first and principal attention to the testimony bearing on the plaintiff’s title.
His title rests upon the construction and location of the patent of 1688, to William Nicoll, his ancestor. There was no possession of the islands by any person, except occasional entries, and these were not so exclusive, steady, and certain, as to amount to evidence of right, and to supersede the necessity of paper title.
The words of the patent are easily and obviously satisfied according to the present physical state of that part of the country, without resorting to the pretensions of the plaintiff. Indeed, it is impossible to cast the eye upon any modern and accurate map of Long Island without being struck with the impression, that the plaintiff’s construction of his patent is violent and unnatural; and nothing can reconcile us to it, but satisfactory proof that the beach on the south side of that island has undergone some great change since the date of the patent. There is a cluster of low islands, or small isles, which are separated by water, when the tide is full, but not so when the tide is down, and which are called ' Fire Island, or Fire Islands, and they lie between a very noted and large inlet, or gut, and the lands of Nicoll. It is admitted, on all sides, that they are included in the patent; and if that gut was in esse, at the time of the patent, it would seem, very naturally, to have been the one intended.
The plaintiff has, however, proved affirmatively, by seve- ~ Tal witnesses, as Garret Kettletas, Isaac Howell, David Willet, John Arthur, and Epenetus Wood, that there was -formerly a gut to the westward of the islands in dispute, and now filled up, which was called Huntington Gut. On the other hand, it is proved by Caleb Saxton, Gilbert Wickes, Joseph Ketcham, and Richard Udall, that Gilgo Gut (and which now appears on the maps to be west of the town of Huntington) was anciently known by the name of Huntington West Gut, or Huntington Gut ; and one of them said it had been called Huntington West Gut by old whale-men, who have been dead forty years; and another said, that the temporary gut, opposite Cedar Island, was called Huntington West Gut, as contradistinguished from Fire Island Inlet, which was called Huntington East Gut.
With respect to this intermediate gut, between Fire-Island Inlet and Gilgo Gut, (the two plain and noted inlets, which, and none other in that quarter, are known to modern times and modern maps,) it appears to have been very temporary, and soon disappeared. The whole testimony concerning it, is loose tradition, and involved in darknes and fable. Jacob Seaman says, that about fifty years ago, the ocean broke through the beach, between Fire-Island Gut and Gilgo Gut, with great violence, and formed what was called Cedar-Island Gut, but which in a few years was filled up, and gone. Isaac Thompson speaks, also, but loosely, of a gut called Huntington Gut, between Cedar and Oak Islands, now disappeared ; and he says, that within his memory, the water has several times broke through the beach, and that the inlets afterwards closed up.. Though several of the plaintiff’s witnesses have designated one of these intermediate and temporary guts, as, having been
But it is contended, that even Fire-Island Inlet, though now nine miles wide, did not exist at the date of the patent. If this be really so, we are then reduced to the necessity of exploring in the dark for the inlet in question. The bill admits, that it is now difficult to ascertain the one intended. To prove the commencement of Fire Island Inlet since 1688, the testimony of John Arthur and Richard Udall, is relied on. The first witness says, that he always understood, from a boy, (and as he said this in 1770, and was then seventy-four years old, he must refer back to within thirty years of the patent,) that Fire-Island Inlet broke through after Nicoll settled there, and that it used to be called the New-Gut. The other witness says, that old Mr. Willis told him, that he had been informed by his ancestors, that Fire-Island Gut broke through in the winter of 1690, or 1691, in a storm. This, at best, is improbable, and rests on foundations too weak. The sudden existence of such a grand inlet as that, known in the memory of the oldest witnesses by the names of the Great Gut and the Nine Mile Gut, and which was a passage for privateers durihg the revolutionary .war, must have been ascertained with much greater historical certainty; for it would have been regarded as a remarkable phenomenon in the natural history of the country. The inlet may, probably, have extended itself gradually towards the west Several of the witnesses attest to this, and the fecM
The patent to William Smith, in 1693, is a most important item of testimony, in the consideration of this question of fact; with me, it has all the preponderance so justly due to written, over parol proof, especially when we are referring to times far beyond the memory of man. That patent was 1 for lands bounded west on East Conetqunt river, and east on Mastick river, and down on each side to the main sea, with the islands in the bay, “ from a certain gut, or inlet, westward, commonly called Huntington East Gut, to a place on the beach, eastward, called Cuptuange, being the west bounds of Southampton; the beach and bay being twenty-four miles east and west.” The present Chief Justice, who tried the feigned issue heretofore awarded in this cause, on the point whether the title of the three islands was in the plaintiff, certified, that this patent to Smith was offered in evidence upon the trial, and was located by parol proof; and that it appeared that the gut, in the patent to Smith, called Huntington East Gut, was the same with the one mentioned in the pleadings and testimony in this cause, by the name of Fire-Island Inlet; and that running west from the west bounds of Southampton, the twenty-four miles would terminate some distance to the east of Fire-Island, making the probable width of the gut, at the date of the patent, from three and a half to five miles, being nearly the width of -NicolPs land on Long-Island. He further certified, that he told the jury, if Huntington East Gut, in the patent to Smith, was the same with ‘Huntington Gut, in the patent to Mcoll, the islands in question were not included in his
From this view of the case, I am perfectly satisfied that the patent to Nicoll does not extend to Captree, Oak, and Grass Islands, and there is no need of any further issue to inform and satisfy my judgment. I have given the plaintiff the benefit of the testimony excluded on the issue; for I have taken it all into consideration in forming my conclusion.
I have not placed reliance on the evidence which the plaintiff has given, of the use and possession of the islands, because, as I have already observed, (and the fact appears abundantly in. the testimony,) the islands are not capable of any other, possession, occupancy, or real use, than occasional and periodical entries to cut the grass and sedge; and the testimony as to this use, is quite as strong, if not much stronger, in favour of the defendants.' Several witnesses have testified to the claim and use of the islands, by the plaintiff and his ancestors, from the time of the lease to Howell and Smith, in 1768, down to the time of filing the bill; but as many, and, perhaps, more witnesses, testify to a similar claim and occupancy, during the same period, by the defendants, and those claiming under the town of Huntington, the result is, that possession must be adjudged to belong to, and to be in, the party who has the right; and as the plaintiff has no title, he has no lawful possession. The equity of his bill has totally failed.
It cannot be material whether the title set up by the defendants be good or not, as to the point of the dismissal of
In the present case, it strikes me that the plaintiff had probable cause to come here. His ancestors had maintained a long and steady claim to the islands in dispute, and had leased one of them as early as the year 1768. He had also succeeded at law in an action of trespass, tried at the Suffolk circuit, in which he had alleged a seisin in himself, and the defendant had alleged a freehold in Huntington, and on the traverse of the defendant’s title, the issue had been found for the plaintiff. Other trespass suits between the parties were still pending; and, with respect to the merits of the case, as it appears before this court, the defendants, when brought in, deny the plaintiff’s title, and set forth the patents under which they claim an exclusive? title to the premises. The issue awarded here was upon the title of the plaintiff, but the defendants’ title was brought into view, and to the notice of
It is admitted that the last patent to Huntington does not touch the islands. If the defendants have a title, it is under their first patent, of 1666, and the terms of it are extremely vague as to the southern boundary, and the better opinion is, that it is limited, in breadth, to the “ nine several necks of meadow ground;’5 if that be so, the premises are excluded. These necks are undoubtedly to be taken in continuity. Ad proximum antecedens fiat relatio. It is a general principle, in the construction of written instruments, that a particular specification will exclude things not specified. But, whatever doubts might have existed under this patent, I consider them as removed by the last patent of 1694, which was granted on the petition of the inhabitants of Huntington, and was intended as a substitute for the preceding patents, “ so as that the limits and bounds of their town should not be as above mentioned, but as hereafter expressed.” The clear definition and location of the southern boundaries of their town, by this last patent, certainly concludes the inhabitants of Huntington from resorting to the vague and indefinite description of the former patents, even if we suppose, in opposition to the usage under our government, that there are technical difficulties in the way of a legal surrender to government of an estate in fee.
If, then, the plaintiff had probable cause for instituting his suit, and the defendants have been litigating against his claim, without any better claim or title on their part, I think it forms
Bill dismissed without costs.