119 N.Y. 316 | NY | 1890
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This case is here for the second time. On the former appeal we reversed the judgment in favor of the plaintiffs, rendered after a trial of the issues, for the reasons stated in the opinion then given. (
The present appeal is from a judgment affirming a judgment entered upon a dismissal of the complaint at Special Term, at the conclusion of the plaintiffs' evidence, no evidence having been given on the part of the defendants. The sole questions upon the present appeal are whether the case as made by the plaintiffs,prima facie established, or tended to establish, that the Floyd Homestead lot was bounded on the east by high-water mark of Setauket harbor; and, second, whether the evidence now presented on the part of the plaintiffs justifies a presumption of a grant by the town or freeholders of Brookhaven, to Joseph Brewster or his ancestors, of the soil under water in front of the Floyd premises described in Brewster's deed to Andrew Seaton, dated June 21, 1768.
It is not questioned but that the plaintiffs have succeeded to whatever title was originally vested in Richard Floyd to the homestead lot, and to the title of Brewster to the land under water, embraced in his deed to Seaton, or to whatever right he had in the locus. It is also undisputed that the structure erected by Strong, the removal of which is the object of the *321 present action, extends several feet above high-water mark of the harbor, in front of the Floyd homestead lot, and also across the land under water described in the Seaton deed. It is not now a question whether, assuming title in the plaintiffs to the locus upon which the bridge is built, the defendants have acquired, notwithstanding, a right to maintain the bridge. Their title or right, if any, was not disclosed, and if the plaintiffs have title to the soil on which the bridge is built, presumptively the erection is an invasion of such title, and a trespass.
In respect to the boundary of the Floyd homestead lot on the east or harbor side, it was held on the former appeal that the evidence then presented rendered it doubtful whether the title of Richard Floyd, the owner of the homestead lot, antedated the Nicoll patent to the freeholders of Brookhaven, of 1666, and assuming that it did not, but was acquired subsequent to that patent, it was held that there was some evidence in the case, introduced by the defendants, tending to show that in the allotment of town lands under that patent, the cliff, and not high-water mark, was the boundary of the allotted lands on the water side, the town retaining a strip between the cliff and the shore for public use. As the case now stands there is no evidence of such reservation and no ground for a presumption that the lots laid out upon the water were not bounded by high-water mark, or that they extended only to the cliff. It was said in the opinion in the former case, speaking of the Floyd homestead lot: "The fifty acres is adjacent to the harbor, and, in the absence of evidence to the contrary, it cannot be supposed that the person from whom Richard Floyd derived title reserved a strip a few rods wide along the shore, thereby cutting him off from access to the water over his own land." Upon the evidence now appearing there is nothing to overcome the presumption that the Floyd lot was bounded on the east by the water, and, assuming that the water was the boundary, the bridge, so far as it extended above high-water mark, was upon the land of the plaintiffs, and they were entitled, upon the evidence now appearing, to have it removed.
The other question in the case, relating to the alleged title *322
of the plaintiffs to the land under water embraced in the Seaton deed, depends upon the evidence given on the former trial, supplemented by additional and, as it seems to us, important proof. The town of Brookhaven, under the colonial patents, acquired a proprietary interest in the soil of the bays and harbors within its limits. (
It now appears, therefore, that the town, as early as 1693, had conveyed most of the land under water in the harbor of Setauket to a private person. What remained was the small part included between the western boundary of the Smith patent, and the shore at high-water mark, and this was the part conveyed by Brewster to Seaton in 1768. It does not seem to be an unreasonable presumption, under the circumstances, that the title of Brewster also originated in a grant from the town.
Upon the case as now presented we are of the opinion that the plaintiffs made out a prima facie title to the locus upon which the bridge was erected, and that the court erred in dismissing the complaint.
The judgment should, therefore, be reversed and a new trial granted.
All concur.
Judgment reversed.