148 N.Y.S. 840 | N.Y. Sup. Ct. | 1914
The above-entitled action is brought by the town of North Hempstead to recover two parcels of land described in the complaint at the easterly part of what is known as Mott’s Cove, Hemp-stead harbor, Nassau county, N. Y., and, by a separately stated cause of action, for damages for an al
Conceding that the rights of the parties depend upon the title to the lands under water; that is, below high-water mark, in what is known as Mott’s cove on the easterly side of Hempstead harbor, the main question to be determined in this action is whether the plaintiff is the owner and entitled to possession of the same.
The defendant, after conceding that parcels one and two described in the complaint are situated below high-water mark in Mott’s cove, and that he does not claim to have acquired title to any of the lands in question by adverse possession, contends that he is entitled to a direction of a verdict in his favor on two separate and distinct propositions:
First. Assuming the town of Hempstead acquired title to Mott’s (Duck) cove by the Kieft patent in 1644 and the confirmatory Dongan patent in 1685, the town parted with its title by its allotments to Abel Smith, John Smith and Nathaniel Seaman.
Second. That the town of Hempstead did not acquire title to Mott’s (Duck) cove for the reason that it obtained the Dongan patent of 1685 upon its own express agreement that “ no person’s property be hereby taken away,” and at that time Mott’s cove was the property of the Indian Chief Runa suck, by an allotment made
The defendant’s contention is that if either of the two said propositions is decided in defendant’s favor he is entitled to a direction of a verdict as a matter of law; and that to entitle the plaintiff to a direction of a verdict both questions must be decided in its favor. In addition, the defendant makes a further point, inconsistent though it may seem with the foregoing, that the town of Hempstead never acquired title to the locus in quo. This point it seems should be first decided. For, if it be found that the town of Hempstead never acquired title to the same, it may be found that the plaintiff has no standing herein. There is no necessity for a historical review as to the effect of the Kieft patent of 1644 and the subsequent patents and claims affecting the premises therein referred to. Such have been recognized and established by a long line of decisions, and in the very recent cases of Town of North Hempstead v. Oelsner, 148 App. Div. 779; affd., 208 N. Y. 626, and in Town of North Hempstead v. Grace, Kings County Trial Term, April, 1914. Upon the trial, it appeared from the evidence that the locus in quo is within the boundaries of the Kieft patent, and, by the agreement between the town of Hempstead and town of Oyster Bay in 1677, the locus in quo was clearly brought within the bounds 'of the town of Hemp-stead. It also appears that the premises in question are within the bounds of the Dongan patent which refers to- the Kieft patent and does not purport to convey any lands below high-water mark in Hemp-stead harbor. It seems, too, that the town of Oyster Bay never claimed such. The plaintiff, therefore, contends that it is entitled to recover upon the strength of its own title, which is necessary in an action in
Defendant seeks to establish a chain of paper title not only to the locus in quo but to a large portion of what is known as Mott’s cove, including lands upon which the oyster ponds or “ drinks,” which defendant removed or destroyed, were located. Plaintiff argues that this claim of title by defendant to lands below high-water mark in this cove was a discovery since the commencement of this action for the purpose of making a defense, and that this expedient is clearly evidenced by the fact that neither in his answer nor in his answer in a previous action brought by plaintiff for an injunction to restrain him from destroying such oyster ponds or “ drinks,” which said action was discontinued by consent before the present action was brought, did the defendant allege or claim to have any title to any land below high-water mark in the cove, but that he justified his acts in destroying or removing said oyster ponds or “ drinks ” solely upon the ground that they constituted a nuisance.
A careful reading of the Kieft patent and subsequent patents and agreements convinces this court that
It seems clear, therefore, that if the defendant is to prevail he must establish: First. That the town parted with its title by allotment, or, Second. That the town did not acquire title to Mott’s cove for the reason that it obtained the Dongan patent of 1685 upon its express agreement that “ no person’s property be hereby taken away,” and at that time Mott’s cove was the property of the Indian Chief Bunasuck by an allotment made by the governor and subsequently confirmed by a formal patent. The second proposition should be first considered, and, it seems, can be readily disposed of. Defendant claims by reason of the Andros patent of 1677 and the Dongan patent of 1685 that certain property, including the locus in quo, was granted to, or reserved to, or recognized as the property of, the Indian Chief Bunasuck and that by the Dongan patent the patent to said Bunasuck was a valid exception to the grant to the town of Hempstead, and that the defendant succeeded to said Indian title; which said title, however, he claims was merged in and with the title by
It seems, therefore, that if defendant is to prevail, it must be by way of title to Mott’s cove acquired by allotments from the town of Hempstead to Abel Smith, John Smith and Nathaniel Seaman. It is extremely difficult to definitely locate the alleged primary grant from the town to one Abel Smith, which the defendant claims included the locus in quo. The premises are described as lying northward of Westbury near or adjoining to Bar of Beach line that divides Hempstead from Oyster Bay. As a matter of fact, it appears from the early maps and charts that Bar Beach juts out from the westerly side of Hempstead harbor and is a considerable distance from Mott’s cove. From an examination of subsequent alleged conveyances, it may be shown with some certainty the location and boundaries of premises that they purport to convey. However, none include or purport to include any lands below
As the defendant in this action relies solely upon paper chain of title, it is necessary to find that the locus in quo was included within all the conveyances constituting the chain, there being no claim by adverse possession. The court in this case is not permitted to speculate or surmise or infer as to the location of the premises alleged to have been conveyed by the deeds, which defendant claims furnished his chain of title, or whether or not the exact locus in quo is included therein. There seems to be no competent evidence upon which the court can find that the locus in quo is
A verdict is, therefore, directed in favor of the plaintiff town of North Hempstead as stated.
Judgment accordingly.