2 Barb. 126 | N.Y. Sup. Ct. | 1848
The important question for our decision in this case is, whether the island passed under the description, and as a part of lot 39, of Petrie’s patent. Passing over the proposition that the Mohawk river has been made an exception to the general doctrine of riparian ownership by the action of the government asserting a right to the bed of the stream by grants and acts of legislation for more than a century past, which proposition has been supposed by some to have been established by the court for the correction of errors in The Canal Appraisers v. The People, (17 Wend. 572,) we are nevertheless of the opinion that it was not the intention of the parties to the patent, under which the plaintiffs claim, that any
The facts in the case may raise a fair question as to possession, and the rights of the parties derived from that source. If any such question had been raised on the trial, it should have been submitted to the jury. We, however, are inclined to believe that the evidence of possession was not given with the view of raising a question of possession independently of that of title. No such object can be collected from the opening of the plaintiffs’ counsel; and it is quite clear that the judge did not dispose of the case upon any such principle. His decision was obviously founded on the idea of a title derived under the principle of riparian ownership; for he held the plaintiffs entitled to recover only “ that part of the island which lies opposite to lot 39.” Whereas, had he disposed of the case upon a question of possession, he would have directed a recovery of the whole island.
There must be a new trial, costs to abide the event.