126 N.Y.S. 910 | N.Y. App. Div. | 1910
Lead Opinion
Plaintiff is the owner of certain uplands, situated upon a neck of land known as Cove neck, which lies between two-, bodies of water, one of which is known as Oyster bay and the other as Cold Spring harbor, sometimes called Cold Spring bay. Plaintiff’s lands are adjacent to the last named waters. On the 30th of March, 1905, by letters patent dated on that day, the People of the State of New York granted to him the land under water in front of his uplands. These letters patent contained a recital that they were issued to him for the following purposes: “To erect on the land under water herein granted the following permanent structures, docks or buildings, to wit: Boat houses and bathing houses, jetties, bulkheads and other structures for the protection of the adjoining uplands, and a dock or docks for access between said uplands and the waters of said Cold Spring Bay, and by filling in said lands where necessary.” Thereafter he erected and maintained a boathouse and bathhouse, certain jetties, bulkheads and breakwaters for the protection of the adjoining uplands and the creation of havens and harbors, and docks for access between said uplands and the said waters. Subsequently the defendant the Town of Oyster Bay, acting through its officers and agents, tore down and demolished a part of these structures, and notified plaintiff that he must not attempt to restore or maintain the same, or any other structure between high and low-water mark in front of his uplands. Thereupon this action was
The town asserts its right to interfere with plaintiff’s use of said land, and to compel the removal of the structures thereon, upon thé ground, first, that there was a legally existing public highway along the foreshore-of Cove neck, and that' plaintiff’s structures constituted an interference therewith, and, second, that'1 by ' virtue of a patent from Edmund A'ndros, seigneur of Sausmarz, lieutenant and governor-general under the Duke of York, in 1677, the land under water and below high-water mark, abutting upon plaintiff’s uplands, was granted to certain freeholders therein named for the benefit of the said town, and that consequently the subsequent grant to plaintiff by the People of the State in.1905 was void. The learned court at Special Term found that there was no highwáy over plaintiff’s lands and that the Andros patent above referred to did not describe or include any part of the premises granted by the State of New York to plaintiff.
We-think that the evidence fully warrants these conclusions. If there ever was a highway along any portion of the foreshore of Cove neck, the evidence respecting its location and boundaries is too vague and indefinite to warrant the court in holding that plaintiff’s rights are affected thereby. The physical characteristics of the immediately adjoining property render it exceedingly improbable that there could have been such public highway across plaintiff’s lands. It was. conceded upon the. trial that the town had never done any work thereon. It is quite probable that from time to time people passed back and forth along the beach when the state of the tide permitted; that they dug clams there, and crossed the same to reach the waters of the harbor for purposes of fishing. But all this user was just such as might result from license.of the owners of the land, and was not of a character to establish a highway by prescription and user. (City of Buffalo v. D., L. & W. R. R. Co., 68 App. Div. 488; affd., 178 N. Y. 561.)
The other question of fact .is the more difficult one, but we are convinced, after careful consideration, that the Andros patent did not include within its metes and bounds the waters and the land under water of Cold Spring harbor, between Cove neck and Lloyd’s
Woodward and Jerks, JJ., concurred; Thomas, J., read for reversal, with whom Carr, J., concurred.
Dissenting Opinion
(dissenting):
The general description given in the Andros patent bounds the land “on the North by the Sound, on the East by Huntington Limmitts on the South part by the Sea and part by Hempstead Limmitts, and on the west by the Bounds of Hempstead aforesaid,” and the patent includes “all the Necks of Land and Islands within the afore described Bounds and Limmitts.” An examination of the map át once shows that these boundaries include Cold Spring harbor and the land in dispute. The above description follows, as if explanatory, a preceding description, which the plaintiff" would unnecessarily construe in direct violation of the second description. The plaintiff’s construction has three results: First, it deflects.the northerly boundary from a directed easterly line so that it will run southeasterly, and probably south southeasterly, along*the whole westerly side of Cold Spring harbor, and, on such course, finally reach the technical point of beginning; second, it takes away from the easterly boundary, given in the general description, so much thereof that the portion of the town that lies north
While I concur in the conclusion respecting the highway, it is considered that, for the reasons above given, the disputed land falls within the Andros patent, and that the judgment should be reversed.
Caer, J., concurred.
Judgment affirmed, with costs.