142 N.E. 437 | NY | 1923
Cayuga lake is thirty-eight miles long and from one to three miles wide. Lying east of the Massachusetts pre-emption line it is no part of the state's boundary. Not far away are ten other lakes of considerable size. Some — Canaderaga, Cazenovia, Onondaga, Otisco and Cross — are but a few miles long and from one-half to two miles wide. Others — Otsego, Owasco and Skaneateles — are larger. One — Oneida — has more water surface than Cayuga. Further east are similar lakes — Lake George, Saratoga lake, Cranberry, Saranac, Tupper, Schroon and others.
All these lakes are alike in some respects. At irregular intervals the water level is raised by spring freshets or heavy rains. Again in time of drought it is lower. So along each is a strip of land sometimes free of water — sometimes covered. On each also are points or beaches of gravel or sand washed up by the waves, lying between the line of inland vegetation and the water and covered, if at all, only in times of extreme floods. All are in fact navigable, although in none does the tide ebb and flow. In a few instances title to the land about them is derived from colonial grants. Usually, however, its source is the state. Often, perhaps in most instances, the description of the land granted is of a lot represented on a certain *121 map and a reference to the map shows the lot running down to the water.
Such was the grant under which the plaintiffs claim. It was of "Farm Lot 86, Late Cayuga Reservation which lies on the east side of Cayuga lake." The map of the reservation referred to shows this lot abutting upon the lake. The photographs in evidence give us an idea of the lake shore at this point. Stretching eastward from the water is a beach of gravel and boulders for some thirty feet. It terminates in a rise covered with vegetation. Beyond is said to be a marsh. The gravel beach for much of the year is free from water. When the lake is high, however, it is overflowed. So in extreme high water is the rise to the east and small boats may pass over it directly to the marsh.
Upon this beach the defendants entered and did the acts which are claimed to be trespasses. Such they were in fact if title to the beach is vested in plaintiffs' lessor. This is the question for our decision for we do not think under the findings as made that any purely riparian rights which the plaintiffs may have possessed were interfered with. If, however, their lessor owned the fee to the beach in question it is not disputed but that an injunction should issue.
Our answer to this question depends primarily upon the meaning and effect of the grant from the state. In deeds from an individual owning to the center of a highway or a non-tidal stream or a lake or pond of land said to be bounded by such highway, stream or lake or simply of a tract with reference to a map showing the tract to be so bounded, the grantee takes title to the center of the highway or to the thread of the stream or lake. A presumption founded originally upon the assumed intent of the parties it has now become a rule of property. If the grantor desires to retain his title to the land in the highway or underneath the water the presumption must be negatived by express words or by such a description as clearly excludes it from *122
the land conveyed. And, at least, ordinarily the same rule applies to grants from the state except as to the Hudson and Mohawk rivers which, because of historical reasons, are governed by special rules. "What then was the extent of the premises thus granted by the state? In the terms of sale, and in the terms employed in the patent, a phraseology has been adopted, which, as between private individuals, would convey an interest to the middle of the river. And is the doctrine to be tolerated which shall assign one construction to a contract between private citizens, and a different one between an individual and the government? Would not the adoption of such a rule of construction operate as a fraud upon a purchaser who should pay an enhanced price for land adjacent to a stream of water upon the faith of a contract, which, as between private individuals, would have given him valuable hydraulic privileges? It seems to me that but one answer can be given to these questions." (Varick v. Smith, 9 Paige, 547, 552; Ex parte Jennings, 6 Cowen, 518; Smith v.City of Rochester,
While admitting, however, the general rule, it is said that it should be limited in the case of a lake the size of Cayuga. Based as it is on presumption as to what grantor and grantee intended, this presumption may be rebutted, and the results flowing from its application in the case of this lake would be so remarkable that we should hold the physical situation to be such as to show no such intention could have been present. It cannot, it is argued, be supposed that the grantee of one hundred *123 square feet upon the shore has attached to his property a strip of land under water two miles in length.
Yet there is much authority to the contrary. (Bristow v.Cormican, L.R. 3 A.C. 641, 666; Johnston v. O'Neill, L.R. 1911, A.C. 552, 577.) These cases deal with Lough Neagh, eighteen miles long and eleven wide. (Johnston v. Bloomfield, Irish Rep. 8 C.L. 68.) Lough Erne is slightly smaller. (Cobb v.Davenport,
In this state the question has never been determined. In Cityof Geneva v. Henson (
Were it necessary we would hold, however, that with regard to a grant of land on Cayuga lake an exception should be made to the common-law rule. We are aware of the statement of Judge BRADLEY in Hardin *124
v. Jordan (
We will assume, therefore, that the grant of lot 86 did not carry title to the center of Cayuga lake. Even so, however, the question as to the title of the land in dispute remains unanswered. Precisely what did the state grant and precisely what did it reserve? Where is the precise line of demarkation between the land retained and the land granted?
In passing upon this question we must realize that there is no analogy between this lake where the water changes its level at uncertain and irregular intervals and the seacoast where daily the tide ebbs and flows; where the line of ordinary high and low tide is fairly definite. Even here the upper line is defined by "ordinary" high tides. High spring tides are not considered. Nor are extraordinary tides caused by storms. Nor are the tides which happen twice a month with the full and change of the moon. The line is governed by the neap tides (Hale De Jure Maris, chap. 6;Baird v. Campbell,
In speaking of such boundaries on lakes, courts have frequently said that they run to high or to low-water mark. Usually exactly what is meant by these terms is not defined. Often the statement is made casually without examination because not determinative of the case under discussion. Sometimes as in California, Washington, North and South Dakota and perhaps elsewhere it rests upon a local statute or constitution. Sometimes it is held that the bed of lakes is held by the state in trust for the people and may not be granted. Therefore, a patent is given a narrow construction. Many cases in the United States Supreme Court depend upon the law of the states in which the land is situated. (Hardin v. Shedd,
In fixing the boundary of such a grant as the present there are four possible choices. We may take the line of extraordinary spring floods. We find, however, no support for this position and we pass it by. We may take *126
the line of vegetation or erosion. We do not think this is satisfactory. No such rule prevails upon the seacoast where barren sands or rocks often lie above the reach of ordinary tides. So it is with beaches of sand or gravel on these lakes which do not support vegetation yet which are rarely or never covered with water. The support of such a rule seems to be rested largely on Howard v. Ingersoll (13 How. [U.S.] 381). In support of it are also cited Oklahoma v. Texas
(
In Houghton v. C., D. M.R. Co. the court, following the Iowa rule, held that an abutter upon the Mississippi took only to high-water mark and it defined this mark, not as determined by the highest point ordinarily reached by periodical rises in June and September, but by the edge of the bank — the portion of the earth which confines the river in its channel. The rises that came from storms and melting snows should be disregarded. They are temporary and uncertain. But the banks afford a certain line. They are impressed upon the earth itself by the attrition of the river current. Certainly what the river does not occupy long enough to wrest from vegetation is not river bed. All this is clearly true. A river with a defined current wears a bed which all may see. A lake does not. No more than the sea may it be said to have banks. In Matter of Lake Minnetonka what was said was entirely applicable to the case under consideration. Around the lake were places where the banks were steep and abrupt. Elsewhere were meadows where the land was but slightly above the ordinary water level and subject to periodical overflow. The court rejected the claim that the state might in aid of navigation raise the water so as to permanently cover these low lands. "While the property of a riparian owner," it is said, "on navigable or public waters extends to ordinary low-water mark yet it is unquestionably true that his title is not absolute except to ordinary high-water mark. As to the intervening space the title of the riparian owner is qualified or limited by the public right" of navigation and the state may prevent any use of it even by the owner of the land that would interfere with this right. The court then continues that high-water mark does not mean the limits of spring floods or freshets but only that point reached by the water for such a length of time and so *128 continuously as to wrest it from vegetation. This must be the principal test. In Diana Shooting Club v. Husting it was held that the public might fish or hunt upon any navigable stream below ordinary high-water mark and that mark was defined as that point on the bank up to which the presence of the water is so continuous as to leave a distinct trace either by erosion, destruction of vegetation or other easily recognized characteristics. No question of title was involved. Indeed, the court expressly declined to decide whether the public might enter below high-water mark upon a strip which by the recession of the water becomes unnavigable or is left uncovered. This was settled in the negative, however, in Doemel v. Jantz (193 N.W. Rep. [Wis.] 393), which case cites and explains the case to which we have referred. In Oklahoma v. Texas the controversy was again as to the meaning of a treaty which fixed a national boundary on the southern bank of the Red river. Here in most places there was a "cut" bank eroded by the water. This was the bank intended. Where no bank existed a level was to be taken of the height of the water when it washed the bank without overflowing.
None of these cases, therefore, aid us in the construction of the grant before us. At most some of them defined what is meant by high-water mark. A similar definition is given in decisions called to our attention in the courts of Maine, West Virginia, Arkansas, Oregon, Oklahoma and Iowa, but some of these cases do also hold that such a grant as the present takes only to high-water mark as so defined. All of them are immaterial, therefore, unless we are prepared to hold that the grant before us is limited by the high-water line. Then, indeed, they might assist us in deciding where that line should be drawn. So the substantial question remains as to what is the limit of such a grant in our state. Is it the line of ordinary spring floods or the line of low water reached in the dry season? *129
While this court has never definitely passed upon the question, the current of opinion is that it is low-water mark. In CanalCommissioners v. People (5 Wend. 423) appears a dictum by the chancellor that the common law does not apply to our large fresh water lakes but as to them such a grant as the present takes to low-water mark. Such was the express ruling in Champlain St.L.R.R. Co. v. Valentine (19 Barb. 484). The same ruling was made in Sweet v. City of Syracuse (60 Hun, 28, 38). While we reversed this case we made no criticism of this particular statement. So as to a private grant in Child v. Starr (4 Hill, 369). (See, also, Chism v. Smith,
In other states we think the weight of authority is in *130
favor of the same rule. (State v. Korrer,
In view, therefore, of these decisions, in view of the fair presumption that it was the intention to give the grantee the benefit of the water wherever it may be, in view of the fact that under the assumption we have made we find an exception to our general rule which so far as possible should be minimized, we hold that under the grant from the state the grantee took to low-water mark on Lake Cayuga. Whether in high water the public has not the right of navigation wherever a boat may float we do not decide. Nor do we decide whether "low-water mark" means that mark to which the water may sink in extraordinary seasons, or simply at its ordinary and usual low level. Here such a decision is not necessary.
The grantee from the state having acquired title to the line of low water on Cayuga lake this passed to one Gawger who in 1872 conveyed it by a description running *131
west to Cayuga lake and then "along the east shore" of the lake. This would carry the line to low-water mark in case the grantor has title to that line. (Child v. Starr, 4 Hill, 369;Gouverneur v. Nat. Ice Co.,
If this be so, concededly the defendants committed repeated trespasses upon the property held by the plaintiffs. What they did was done above ordinary low-water mark. The result, therefore, reached by the trial court was right.
The judgment of the Appellate Division must be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.
HISCOCK, Ch. J., POUND and McLAUGHLIN, JJ., concur; HOGAN, CARDOZO and CRANE, JJ., dissent.
Judgment accordingly.