116 N.Y.S. 532 | N.Y. App. Div. | 1909
This action was brought to enjoin a trespass,.but it was tried upon the stipulation of the parties as an action at law for damages. At the close of the evidence both sides moved for the direction of a verdict and the defendants’ motion was granted. The dispute is over the title of a strip of salt meadow and beach on the southerly side of Cold Spring Harbor in the town of Southampton, Suffolk county. The plaintiff is the owner of the uplands adjoining the strip in dispute. The plaintiff derives title from a deed made March 21, 1861, by the “ Trustees of the Proprietors of the Common and undivided lands and marshes or meadows in the Town of Southampton ” to Lewis Scottand others. It is conceded that the description in that deed includes the premises in dispute, but the deed contained an exception in the following words : “ And excepting from this conveyance all such meadows and marshes, within the aforesaid boundaries as have heretofore been allotted to and are now owned by particular individuals in severalty or otherwise,, and also further excepting from this conveyance all land covered with water where the tide ebbs and flows within said bounds. It being the intention of this conveyance and it shall be so construed as to- convey said
The plaintiff claims that the exception in the Scott deed is void for indetiniteness. It is true that an exception in a deed* must be taken most favorably to the grantee. (Jackson v. Hudson, 3 Johns. 375; Blackman v. Striker, 142 N. Y. 555.) If the language used is susceptible of more than one meaning, the grantee is entitled to the one most favorable to him; and if it is so vague as to identify nothing, nothing will be excepted. But deeds have to be construed the same as other contracts. The court, so far as it can, will put itself in the position of the parties and ascertain their intention from the words'used, their context, and the surrounding circumstances. (Blackman v. Striker, supra ; Clark v. Devoe, 124 N. Y. 120; Thayer v. Finton, 108 id. 394; Myers v. Bell Telephone Co., 83 App. Div. 623.) The contention of the plaintiff is that the exception is as indefinite as though, for the phrase “ such meadows ahd marshes within the aforesaid boundaries as have heretofore been •allotted to and are now owned by particular individuals/’ wei'e substituted the words, “excepting some of the meadowlánds within the aforesaid premises; ” but those two expressions have only to be put in juxtaposition to perceive the fallacy of that argument. .The meadows and marshes theretofore allotted, so far as anything appears on the face of the instrument, were capable of being; identified;
The records of the town of Southampton contain the entry of what a witness, who had made a special study of the old records of the town, said purported to be an allotment of the “ Seaponaek Division,” made in February, 1654. They also contain entries purporting to have been made during the seventeenth century, subsequent to 1654, of. sales and leases by individual owners of salt meadows in the Seaponaek division, "some of them described as being on Gold Spring pond. Said witness testified that the Seaponaek division included the meadows in dispute, and that there was no other division of the town to which the name could refer. That witness had been one of the trustees of the proprietors and the town clerk of the town for several years succeeding 1860. He had made a special study of, and had compiled, deciphered and published the old records of the town. Those records required explanation from one having special knowledge of the subject, and the witness qualified as an expert; indeed his competence was not questioned. The record evidence then tends to show that there was an allotment of the division of salt meadows, including those in dispute, to individual owners whose ownership continued to be unquestioned after the Andros and Dongan patents. One of the trustees of the proprietors testified that, in 1861, consequently about the time of the Scott deed, an arrangement was made between the trustees who owned the uplands and the owners of the meadows, whereby the latter were to have certain rights in the uplands in return for allowing the cattle and sheep, pastured upon the hills, to go upon the meadows. At that time there was a fence between the uplands and the meadow — how long it had existed did not appear — but there is now a well-defined ditch where it existed. The three other sides of the meadow in dispute are marked by natural boundaries. There is no pretense that the proprietors made any claim to the ownership of this meadow at the time of the Scott deed. On the contrary, the evidence is undisputed that,. as far
There seems to be no room to doubt from the evidence above outlined that the parties to the Scott deed understood that the premises in'dispute were a part of the meadows theretofore allotted to and then owned by individuals. However, thei language óf the exception requires that, both allotment to and ownership by individuals be shown. The defendants are unable to trace a paper title to one of the allottees, and of course cannot show, what possibly may be presumed, that the allottees took possession. The so-called Barrett patent of 1641 and the Indian deed of 1640 did not convey title; but titles to land in the town of Southampton have their origin in the Andros patent of 16<76, confirmed by the Pongan patent of 1686. Under those grants the title tó the uplands and meadows vested in the corporate body in trust for the original proprietors. (Town of Southampton v. Mecox Bay Oyster Co., 116. N. Y. 1.) However, both the Andros and the Pongan patents purport to be confirmatory of existing, rights, and the Andros patent contained the recital :* “ Whereas there is a certaiñe- Towne in the East Biding of Yorkshire upon Long Island commonly called and knowne by the name of South Hampton,5’- etc. : That charter was evidently granted to secure from the town, recognition of the authority of the Puke of York.. It appears that an order was made by the General Court .of Assizes under Governor Hicolls in 16Í0, requiring the towns of Southampton, Southold and Oyster-bay to give their reasons why they had delayed having their grants or patents renewed or Confirmed.: The rights of the original settlers were recognized and confirmed by the Andros, and Pongan charters, and any divisions of the common lands made prior thereto do- not appear thereafter to have been questioned. However, in view of the fact that under the Andros and Pongan charters the legal title vested in the body corporate ¡and' not in the equitable owners, it would seem that partition could not be made as among tenants in common, but that a transfer by the holder of the legal title- was necessary to vest title in the allottees (See Sanger v. Merritt, 120 N. Y. 109), and it may well be doubted
Moreover, the defendants’ evidence tended to show an adverse possession for twenty years under a claim of- title. While there are some cases in the Court of Appeals which seem to be opposed to this view, I think the defendants have made out a case of technical adverse possession under the statute. Wheeler v. Spinola (54 N. Y. 377); Price v. Brown (101 id. 669), and Mission of the I. V. v. Cronin (143 id. 524) involved somewhat similar land but not the same facts, if I rightly understand those cases. The first case involved the annual removal of a load or two of what was called “ thatch ; ” the second case involved what was characterized by the court as “ an occasional foray” for thatch; and in the last case the one claiming title had only surveyed the land, marked boundaries and from time to time cut trees. In McRoberts v. Bergman (132 N. Y. 73) the owner of the upland, who had removed sand from the beach and cut grass from the salt meadow, was allowed to maintain ejectment
, The judgment should be affirmed.
Hirschberg, P. J., Gaynor, Burr and Rich, JJ., concurred.
Judgment and order affirmed, with costs.