89 N.Y.S. 982 | N.Y. App. Div. | 1904
The plaintiff brings this action to restrain the defendant corporation, the trustees, etc., of Brookhaven (hereafter referred to as Brookhaven), and all persons claiming under them, from exercising acts of ownership over the eastern portion of Lake Ronkonkoma, Suffolk county, one of the principal fresh water ponds on Long Island, said to change the quantity of its water at periods of four years (14 Ency. Brit. [9th ed.] 865), and to have a lease of certain rights in the lake, made by the said corporation to the defendant Lucy McKittrick, declared canceled and void. The primary question, of course, is the strength of the plaintiff’s title, not the weakness of that of his adversary, and the learned court at Special Term having dismissed the complaint upon the merits, the presumptions are in favor of the judgment.
On the 3d day of March, 1665, Governor Nicolls granted to one Richard Smith a patent for Smithtown, “ bounded eastward with the line lately runne by the inhabitants of Seatalcott (Brookhaven) as the bounds of their town, bearing southward to a certain fresh pond called Raconkamuck; from thence south westward to the head of Nesaquake River.” On the 7th of March, 1666, Governor Nicolls issued a patent, in which it was recited:
“ Whereas, there is a certain Town in the East Riding of Yorkshire upon Long Island comonly called and known by the name of Brookhaven, and heretofore by the Indian name of Setaulcott, Now in ye Tenure or occupation of several freeholder and inhabitants who having heretofore made lawful purchase of the lands thereunto belonging, have likewise manured and improved a considerable part thereof, and settled a competent number of families thereupon : Now for a confirmation unto the said Freeholder and inhabitants in their enjoyment and possession of the premises, Know ye that by virtue of the commission and authority unto me given by his Royal Highness, I have ratified,1 confirmed and granted, and by
It is to be observed that this patent does not grant any land to tlie trustees of. Brookhaven; it merely confirms in the corporation the title to such lands as have been purchased or may/hereafter be purchased from the Indian proprietors or others within the political bounds of the town. In support of their title the trustees of Brook-haven present a deed from G-ie, Sachem, to themselves, which ratifies and confirms to them “all those parcels 'of land that have been bought of any of us, or our ancestors;; that is to say, From the west
The 'Dongan patent to Brookhaven creates a corporation under the name of the Freeholders and Commonalty of the Town of Brookhaven, and confirms to it all the tracts of land that had passed by the first patent from Governor Nicolls. It did not contain a grant of any additional land; such portions of the land granted by the first patent as had passed into the ownership of particular persons were confirmed to them and their heirs and assigns, and such portions as had not passed to particular persons were confirmed to the corporation, for the “ use and benefit of the present freeholders & inhabitants, their heirs, successors and assigns forever, in proportion to their several and respective settlements,” etc. Up to this time there had been no effort to convey any land south of the center of the island.
With matters in this condition Governor Fletcher granted a patent to Col. William Smith in 1693, for the manor of St. George, in the eastern portion of the general bounds of the Brookhaven patent, embracing lands “ not ever purchased by the said townsmen of the Indian natives,” and the northerly boundary of this patent is “the country roade near ye middle of the island afore sd, to a markt tree there, the whole hollow included, and soe bounded northward by ye sd country road to another marked tree,” etc. This is the first patent bounded by “ the country roade near ye middle of the island,” all the previous patents and grants running to the “ middle of the island.” Before the taking out of this patent, which bears date the 9th day of October, 1693, and on the 21st day of September of that year, Col. William Smith, who had previously purchased the Indian title,' entered into an agreement with the
Great stress is placed upon the use of the expression “ the now •country or common road” by those desirous of supporting the judgment in the case at bar, it being Urged that this indicates that there had been or were other country roads to which reference may have been made; but when we consider that this agreement was of a very early date, and that the highways remote from the larger settlements were merely paths in the woods, while the custom and demand of highways proper was of at least four rods in width (see 1 Col. Laws of N. Y. [Comp. Stat. Rev. Com.] 532, chap. 131), the reason for this agreement is made plain. It was the purpose of the parties to agree upon a line which would provide for a road four rods in width, and for this purpose it was agreed that the property should be “ bounded northward, within two poles (rods) of the Country road aforesaid.” That this is the true reason is made manifest by the subsequent provision“ that what shall be found by the present surveyor general within the east and west line, from South to North shall be bounded northward within two poles of the Country road aforesaid, by marking some tree, or setting up some stake, which shall be the certain bounds betwixt the said Smith and the town aforesaid, their heirs and successors forever, and that what land within the east and west bounds is southward of the path shall be to him, the said Smith, and what land is northward of the said path shall bee to the Town of Brookhaven, his and their heirs and successors and assigns forever, notwithstanding upon mesuringe the bredth of the Island aforesaid, the said path or country road shall not happen to be found to be the middle of the said Island.” The
There is testimony in the case which appears to us to warrant the -conclusion that the country road referred to in the above agreement, as well as in the patent to Col. William Smith, is the same highway known as the country road or post road to-day. There is no dispute, so far as we discover, that St. George Manor extended south' from the location of the present post road, and we shall presently point out facts,- of which we may take judicial notice, which will make this self-evident.
Four years from the granting of this patent to Col. Smith in the eastern portion of the town of Brookhaven, Governor Fletcher, the grantor, issued a license by order of the council to William Nicoll, by which the latter was permitted to purchase from the Indians “ a certain tract of vacant land in SufEolke County bounded north by the Country Road, * * * together with the pond called Raconckomy for his improvement.” On the 20th day of September, 1697, Governor Fletcher issued a patent to William Nicoll, “ of a Certaine Parcell of Vacant unimproved Land in the County of SufEolke in the Island Nassau Part adjoining to the Land of our said Loving Subject and of Andrew Gibb Bounded Easterly by a Brooke or River to the Westward of'a Point Called the Blew Point knowne by the Indian Name of Manowtassquott and a North and by East Line from the Head of said River to the Countrey Road thence along the said Road Westerly untill it Bears North and by East to the head of Orawake River and thence by a South and by West Line to the head of the said River and so Running Easterly along by the Lands of said William Nicoll and Andrew Gibb to the head of Connettquot and down the said River to the Sound and from thence along the Sound Easterly to the Mouth of Manowtassquott aforesaid together with a Certaine fresh Pond called Raconckomy Pond.” The words of grant are that “We have Given Granted Ratified and Confirmed and by these Presents Do
It is conceded that if -the highway running east and west through Long Island to-day, and known as the country or post road, is the country road referred to in this grant, the description embraces Raconckomy pond, and it determines the rights of the parties; for it is not claimed that any one.ever had a grant of this lake from the original Indian owners, unless it was purchased. by William Hicoll, to whom it was granted by name. The theory‘of the defendants is, however, that there was at some time, so remote that the learned trial justice does not attempt to fix thé time, another country road to which this description related, and that this road ran south of the lake. This theory is supported by' the learned court at Special Term, who suggests that “ the language of the Hicoll license and patent is very significant, in that the lake or pond is not included within the .bounds of the grant, for we see that the language is 6 together with a certain fresh pond called Raconckomy Pond,’ and
A careful examination of this case fails to satisfy us that the evidence supports this conclusion, and we are confirmed in this view by an examination of the laws relating to this subject, which, had they been called to the attention of the court, must have resulted in
“ And be it further Enacted by the. Authority aforesaid That there shall be Comon Highways Laid out, assertained, repaired & preserved
(Then follow provisions for punishing those who “ Stop up, Lessen, contract, narrow or Incroach on any Comon General or publick Road or highway; ” for placing the burden of amending and repairing upon the owners of the several townships, manors and lands by or through which any common, general or public road or highway shall be laid out (Id. 534), and for permitting the erection of good easy-swinging gates to be erected upon any of the common highways for the several towns, as distinguished from the common general public highways, which are to remain for free passage, the object of the gates being to permit cattle to run at large in these sub-highways.) (See 1 Col. Laws of N. Y. [Comp. Stat. Rev. Com.] 798, chap. 270.)
“ Provided always and it is the true Intent and meaning of this Act that all the Roads and publick Highways by this Act Intended shall be of four Rod at the Least in Such as are now already used and laid out and of the breadth of Six Rod at the least where any new Publick Rod or Highway shall hereafter by Virtue of this Act be laid out.” (Id. 537, chap. 131.)
The above act, with some unimportant amendments, was kept in force, in so far as it related to Suffolk county, during the entire colonial period, and up to 1785. (See Col. Laws of N. Y. [Comp. Stat. Rev. Com.] chaps. 131, 144, 154, 182, 270, 386, 404, 422, 459, 471, 536,- 575, 686, 795, 888, 1011, 1269, 1399, 1592 and 1709.) Provision was made for one common general public highway through each of the several adjacent counties and for “ Lesser Roads” (See 1 Col. Laws of N. Y. [Comp. Stat. Rev. Com.] 1024, chap. 372), and “ the country road ” was the main through highway from the ferry in Kings county to the town of East Hampton in the county of Suffolk; it belonged to the country at large,
Thus, within about six years of the date of the Nicoll patent, we find the Legislature providing for a permanent system of highways, and with this legislation in full force up to 1785, forbidding the destruction of any of the general or common highways, we are asked to believe that a wood road constructed upon a line of which there is no record until about 1797 was the country road referred to. This construction, appropriate enough for a deed of to-day, ignores the history of “ the country road ” as it existed, and as it was understood at the time of making the grant now under consideration. A country road at that time was not a road remote from a city, or a backwoods road, but a road which was for the common use of the country as a whole, as a nation; it was the main highway, connecting up the small communities and neighboring colonies, and was demanded by public policy, rather than by considerations of private convenience, this latter' bping served by the discretionary roads, with, their swinging gates and their cow-pasture 'conveniences. It ran the whole length of the island at approximately its center, from a practical standpoint, and it made a convenient and practical center boundary line. What more natural than that “ the country road,” a permanent monument created by public necessity, should become the boundary of the grant to William Nicoll; what more unreasonable than the theory that a permanent patent should be bounded on a remote wood road, not a trace of which remains upon any record which the defendants have been
In view of this legislation, extending from 1703 to and beyond the colonial period, as will be seen by a reference to the chapters of Colonial Laws above cited, the Hulse map of Brookhaven (Plaintiff’s Exhibit M) is most significant. This map was made in October and November, 1797, one hundred years after the William Nicoll patent issued, and is the first record of the Hart line, so often referred to in the case; and which the learned court at Special Term has found as the northern boundary of the patent. This line is undoubtedly the mathematical center of the island, measuring across
It is probably true, so. far as we are .able to trace the lines, that the William Nicoll patent overlapped the Smithtown grant to a certain extent, and there is some evidence in the case that some of the land embraced in the same patent has since been claimed under deeds from the town of Brookhaven, but these matters have no bearing upon the question at issue here, which involves merely the title to the lake. The grant, so far as it, overlapped the Smithtown grant, if it did, was void, under the rule that the king cannot grant the same thing in possession to one which he or his progenitors have granted to another. (Broom Leg. Max. [4th Eng. ed.] 64.) The fact that-the heirs of William Nicoll may have surrendered rights in real property, and have accepted a different line from that originally established as the northern boundary in some of their private deeds cannot be controlling here.
In 1731 the trustees of Brookhaven adopted a resolution in reference to lands lying south of the country road, and which embraced, undoubtedly,, some of the lands within the boundaries of the original patent to William Nicoll', through whom the plaintiff derives his title, but this resolution reserved “ for the use and benetite of the inhabitants of the Towne forever, all the Rivers, ponds and swamps and places where water usually stands. Also the Lands six rod wide round each River, pond and swamp where water usually stands.” It is clear, therefore, except by a- possible inference, there was no claim of ownership in the town to the lake, here in controversy, which in I8601 was found by the trustees of the town to be outside its jurisdiction, and all ponds were expressly reserved out of the operation of the resolution, so that even this action has no bearing upon the title to Raeonckomy pond, the record title of which is clearly in the plaintiff,-as shown by the conveyances in evidence.
The judgment appealed from should be reversed and a new trial granted, costs to abide the final award of costs.
All concurred, except Bartlett, J., not voting.
Judgment reversed and new trial granted, costs to abide the final award of costs.