172 F. 574 | U.S. Circuit Court for the District of Eastern New York | 1909
The present action involves a determination of the title to certain plots of land running across the strip of sand on the southern portion of Long Island, generally called “Rockaway Point.” These plots of land are bounded laterally by the extension of the side lines of certain parcels upon the north side of what is known as Rockaway Inlet. The land to the north of this inlet is a large island, called for 200 years “Barn Island,” and since that time “Barren Island,” in the southeastern portion of the old town of Elatlands, in the county of Kings, and-state of New York. The county line between Kings county and Queens county was first located by the state along the middle line of the channel between Barren Island and Rockaway Beach or Point as it existed in 1802 -04. It is undisputed that this channel, which is the only outlet of Jamaica Bay to the ocean, has not remained in the position in which it was at the time the county lines were created by the state, and that the mid-
It. is unnecessary to follow out the chains of title other than to say that the complainant is grantee’under a full covenant and warranty deed made by the devisees of Collis P. Huntington on the 11th day of February, 1901, recorded in the county of Queens on the 27th day: of September, 1902, in Liber 1287 of Deeds, p. 14, and that the complainant’s title is traced through a deed from the city of New York', various partition and foreclosure suits, grants from the state of New York, and conveyances from private individuals to one of the patents granted by authority of the King of England by Governor Dongan of the Colony of New York in the year 1685, and back of that even by a title from the Indians. It appears in the course of the complainant’s chain that in the year 1812 the United States was given, under the authority of the state of New York, the right to locate a fort upon what came to be known as Block Plouse Point, and that during the War of 1812 certain militia erected a blockhouse, which has long since disappeared. The United States never took possession of the land in question, nor attempted to exert any dominion over it, except to grant one lease in 1872 (page 1418 of record), and, so far as the testimony presented in this case show's, .obtained no title to any of the tract until about the year 1854, when a life saving station or boathouse previously on Barren Island was moved across the inlet and located upon the beach of Rockaway Point, within some 100 yards of the high-water mark, at the southeast corner of the point as it then existed. An examination of the charts, which will be referred to later, and an inspection of the land, sliow that dunes, with- bushes and shrubs, reaching a height of 20 to 30 feet, cover.the precise-part of the beach upon which
The defendants’ title, likewise starting with grants from the Indians, had to do with'properties stated to be on Barren Island, or Bam Island, and specifically located in said town of Flatlands. The chain of title comes down through various deeds and wills to the present owners or claimants, and their title to the upland, or to the portions of Barren Island claimed by them, is satisfactorily established, and their possession of all portions of the tracts claimed by them north of the present location of the inlet would seem to be beyond dispute. But the extension of the defendants’ lines across the inlet (these side lines running some 8y-¿ degrees east of south, according to the maps filed, from the survey made July, 1900, by Samuel K. McKlroy, civil engineer, and put in evidence as Defendants’ Exhibits 1 and 2) cross as well the present stretch of Rockaway Beach, or the lands added thereto by the westward movement of the inlet. The portions of the beach thus included within these lines so extended are a part of the particular portion of the so-called lands of Rockaway Beach, set apart and assigned to the grantors or predecessors of the complainant in a partition suit involving substantially all of the added or connected beach land, as well as some of the upland east of the old line near the life saving station.
The case involves the decision of a difficult question of fact, in that it must be determined whether the movement of the inlet was such that all of the land added to Rockaway Point or connected with it from time to time toward the west has been raised up out of the ocean and established above high-water mark by what is known as the gradual process of accretion; or whether by a sudden and plainly discernible shifting of the inlet, or by a number of such shiftings, the entire channel, including and carrying with it the county boundary, has broken through what previously was a part of the county of Kings. If the latter method be proved, the old bed of the inlet has filled up hv accretion, both to the southwest, from the upland or beach of the complainant, and to the east or northeast from the bars or land to the south of what is now Barren Island.
A third possibility suggests itself, which must be considered in the light of the various attempts at possession on the part- of the defendants and their grantors and tenants. This third possibility would of itself be sufficient to defeat the title of the complainant, and would leave him limited by lines of the original grants, and b3f what could properly be held as accretion thereto, for the burden of proof is upon the complainant in the present action, and he must establish, not only that the defendants have not title, but that his title is proven affirmatively. This third position would result from a finding that the lands in question were formed outside of high-water mark, and therefore the property of the state of New York (Mulry v. Norton, 100 N. Y. 424, 3 N. E. 581, 53 Am. Rep. 206; Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331), but were never a part of, or joined to, land above high-water mark included within any of the grants in the defendants’ chain of title; that is, that the accretion, if any, has been the property of the state, rather than that of individuals. The ques-íon of possession or of adverse holding beween the state and the lessees or tenants of the defendants could not, of course, be determined in this action, except as we may consider the effect of the deed from the state to the complainant’s grantors hereinafter set forth.
The evidence on the question of fact has been of two kinds, charts or maps, including government surveys, and testimony of witnesses familiar with the localities in question. The earliest map shown seems to have been made by one Jeremiah Lott from surveys prior to the 20th day of November, 1797, when the map is said to have been protracted. This map was filed in the office of the state engineeer and surveyor, and a copjr has been certified in evidence. Objection was made to the entry of this map in evidence, but there seems to be no good reason for doubting its authenticity, and it is apparent from the map itself that the portions relating to Barren Island and Rockaway were not plotted from surveys, but Barren Island is said to be taken from computation, and shows merely an approximate or relative plan of that locality. The next map offered in evidence was published under an act of the Legislature of the state of New York in the year 1827, and purports to show a compilation of surveys of the counties of New York, Kings, Queens, and Richmond. Objection was made to the acceptance of this map in evidence. But there seems to be no reason for not taking it for what it is worth; and, while some of the localities
The United States in 1841 issued a chart showing the soundings of Rockaway Inlet and a part of Jamaica Bay, and on this chart, while the southeast corner and southern portion of Barren Island shows the same formations as on the chart of 1835, the western point of Rocka-way Beach has still further protruded, and has begun to force the general direction of the inlet: from a north and south to a northeast and southwest course. The deep water channel shown in the chart of 184.1 lies close to Barren Island upon its southeast corner, and then turns and runs out, in a southerly direction, to the open ocean. This channel in 1841 passed west of a bar called Duck Bar, and referred to by almost every witness who has testified in this case. Another large sand bar was charted immediately to the westward of this channel (approximately of even latitude with Duck Bar), while a broad spáce of water, containing a minimum depth at low tide of some nine fdet, stretched between Duck Bar and the southwest Point of Rockacvay Beach. This is plainly what lias been referred to by most of the witnesses as the “East Way” or “East Channel,” and means no more than a strip of ordinarily deep water around the point of Rockaway Beach. Thus, Duck Bar at this period lay between this stretch called the “East Way" and the deeper channel scoured out by the tide, setting dofvn from alongside of Barren Island. This chart also shows between Bar
The .witnesses called by the complainant and by the defendants agree in fixing the next great change in these localities after the condition shown by the chart of 1835 at the occasion of a storm which occurred probably in the year 1855.
The severe storms of the period around 1878 have already been referred to. To the west of Barren Island Pelican Bar and Beach were destroyed to a large extent, the shallow West Way was deepened and enlarged, Pelican Beach or Island, together with much of the land in front of Plumb Island, disappeared, and Plumb Island became bounded on the south practically by the ocean. The so-called Duck Bar shifted so as to become indistinguishable from the West Bar, and Rockaway Point was extended to the old position of Duck Bar, leaving but one channel which immediately south of Barren Island ran practically northeast as an entrance to Jamaica Bay. Since 1878 and 1879 the growth of Rockaway Beach to the westward seems to have been gradual. The present western extremity of the beach is almost due south of Plumb Island, and reaching nearly to the longitude of the eastern extremity of Coney Island as it now exists. The character of the beach itself and the various United States charts show that during this later period the growth has been what can properly be
The case of Mulry v. Norton, supra, was a contest of title over certain lands submerged by the sea within the boundaries of the plaintiff’s grant, and a subsequent emerging of the beach and westward growth along the sunken front until the submerged portions had been restored, but with a shallow lagoon between the new portion and the former high-water mark. The court held that the rebuilding or reformation of the land within the boundaries of the former territory when under such circumstances as not to constitute accretion to some other strip would vest the original owners with title as against the state; that accretion could not take place without contiguity, but even when contiguity existed could not 'cross the lateral boundary lines; and that the owner of the upland would regain the beach, although there had been a previous encroachment of the high-water line to a point inside of where the new formation occurred. In Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331, the Supreme Court of the United States recites many decisions relating to riparian rights, and questions of accretion or title to lands in navigable waters. It cites the case of Mulry v. Norton, supra (declaring the law of New York to be as above stated), and also cases along the Mississippi river, such as Jones v. Soulard, 24 How. 41, 16 L. Ed. 604, Railroad Co. v. Schurmeir, 7 Wall. 272, 19 L. Ed. 74, Yates v. Milwaukee, 10 Wall. 497, 19 L. Ed. 984, and many other decisions showing theholdings of the United States Supreme Court and of state courts with respect to the rights of riparian owners in protecting their access to a navigable stream, and to the acquisition” of land forming within the navigable water in front of their property. The court says (page 35 of 152 U. S., page 561 of 14 Sup. Ct. [38 L. Ed. 331]):
“The rule, everywhere admitted, that, where the land encroaches upon the water by gradual and imperceptible degrees, the accretion or alluvion belongs to the owner of the land, is equally applicable to lands bounding on tide waters or on fresh waters, and to the king or the state as to private persons; and is independent of the law governing the title in the soil covered by the water”— citing cases from both England and the United States.
No distinction is drawn between lands arising out of navigable water in streams or rivers where the riparian rights extend into the
But with respect to Barren Island an entirely ^different situation arises. It is impossible on the record to hold that the upland or beach of Barren Island above high-water mark has ever occupied the position of the land in question. The charts, however, of 1835 and 1875, hereinbefore referred to, show Duck Bar as an island — that is, having some portions above high-water mark at all times — and in 1875 this Duck Bar Island with deep water on each si de, extended approximately north and south over a mile in length, and almost in contact with Barren Island at its nearest point. Between this Duck Bar Island and Barren Island was shoal water, but by the next great movement of Rockaway Inlet Rockaway Beach extended to and included a part of this Duck Bar, which has ever since remained dry land, and the shoal water became the inlet. This movement, as has been said, occurre d in the 70’s, and, the greater part of the land actually in question in this suit having been formed by that movement of the inlet, we must consider whether the owners of the upland on Barren Island acquired from the formation of this Duck Bar prior to 1875 any title therein; and if they did, inasmuch as Duck Bar was so narrow in its east and west dimensions, the next question, which is even more difficult, is as follows: Would the owners of the upland of Barren Island obtain title to the entire east and west strip formed by this movement of the inlet, that is, by the growth of a long extension of Rockaway Beach out of deep water, because some one of those Barren Island owners might have claimed the narrow strip of Duck Bar immediately in front of his property? This question is yet more complicated, in that when the inlet made this final shift, and the beach which we have been considering was joined to Duck Bar, a deep-water channel was washed between Barren Island and all of the lands in question, which channel has continued and deepened to the present time. But, with respect to Barren Island, the state or county authorities seem to have assumed that the boundary line between Kings and Queens counties has followed the main thread of the inlet in its various positions. There has always been a southern boundary of Barren Island bounded by high-water mark, whether that high-water mark be composed of the so-called West Way and the Inlet or the so-called West Way and South Way united together and continuing into the Inlet. The West Way, according to the testimony of Jurien S. Lott and several others, whose statements are clear enough to be almost beyond question, has not been navigable for boats of any size until within the memory of
Comment has been previously made in this opinion upon the peculiar coincidence with which apparently honest recollection on the part of witnesses as to later conditions agrees with physical facts shown by some of the earlier charts. But equally persuasive testimony and equally definite charts of different dates between the two negative completely the force of any conclusion which might be drawn from the later testimony. As an instance of this, tlie testimony of Mr. Ge-
“And also all the privileges and appurtenances both of the upland or marshes always belonging thereunto, as the Straim Beach of Beaches as namely that, running out more Westerly with the upland adjoining and is at some times by the Ocean Sea wholly enclosed, called Hoopairmah and Shanstomororto & Ma* eutteris.”
To this attention is called by the defendants as proving there were three bars in front of Barren Island conveyed by this deed. But it is just as likely, and even more persuasive, that they were a part of the broken lands to the west in the neighborhood of Garrison’s Creek and Pelican Beach, and the only conclusion which can be drawn from this deed and the following deed is that the defendants’ southern boundary was the Atlantic Ocean. The defendants’ strongest argument for this phase of the case is that their boundary was the ocean, and that they are entitled to littoral rights upon che ocean, as against the state of New York, or any one else. In Mulry v. Norton, supra, not only did the court determine that the lands formed in front of the complainant’s property had been restored within the original boundaries, but applied to such a situation the well-recognized doctrine of riparian rights and accretion or reliction as above stated. Hence, recognizing the doctrine that accretion cannot add to land in a lateral direction over the boundaries of an adjoining owner, the court held
Based upon this proposition, and upon the conclusion in the case of Mulry v. Norton, the defendants claim that they were given property bounded on the south by the Atlantic Ocean, that any land formed in front of their property as between them and the state of New York belongs to them, and that the complainant, representing lateral owners, cannot claim, even under the doctrine of accretion, a strip of land extending in the form of a point across the front of the defendants’ properties, and thus’making their southerly boundary the inlet instead of the ocean. It does not seem that this doctrine can be carried thus far. The defendants’ land was bounded by the ocean; that is, by tide water. "Unless property be washed away and restored within the original limits, the precise doctrine of Mulry v. Norton would not apply, and such facts have not been shown in the present case. It is impossible to hold that in the sea, with a wide stretch of navigable water between the two properties, a strip or point of land entirely outside of any boundary lines previously limiting the property in question should be considered as a part of that land. The thread of the stream does not apply to the ocean. The question of navigable water and of access is also inapplicable, for both of these exist under all circumstances, and, so long as navigable water exists between, it would not seem that the doctrine of the “river” cases such as recited in Shively v. Bowlby, supra, could appíy.
It would seem, therefore, that the claims of the defendants to any of the territory of Rockaway Beach cannot be established upon the theory that these lands constitute a part of their original holdings or the holdings of their predecessors in title. But the complainant does not satisfactorily show that the land west of the inlet as it existed in 1845 and 1850 near the life saving station has been added to their property entirely by the process of accretion. There seems to be considerable basis for holding that the accretion has been upon the bars as well as upon the point of the beach, and that from time to time the sandy shoals projecting above low-water mark, and apparently belonging to the state of New York, have themselves been enlarged by accretion, and then have been bodily annexed and attached to Rock-away Beach, and new bars have been formed further to the westward; the same process being then repeated until the present stage in which for the last 30 years, more or less, true accretion has resulted, and the progression of the beach has been more gradual and steady in its motion toward the west.
Assuming, therefore, that the complainant has not satisfactorily proven that the entire beach belongs to him or his predecessors in title by the doctrine of accretion, it is necessary to consider the effect of the deed from the state of, New York in accordance with an act of the Legislature in the year 1887, and also to consider the defenses of adverse possession, and the allegations of the defendant that the present action cannot be maintained, inasmuch as the complainant would be deft to an" action of ejectment, if he is unable to show, such possession of the territory as would be sufficient for an action to quiet title, or
In. considering either the question of title or of possession to the lands west of the life saving station, it must be noted that from 1809 to 1887 the entire point upon which the life saving station was located belonged to Ryder and to his grantee the state of New York. If the complainant’s theory of gradual accretion' were fully substantiated, that accretion, so far as recorded titles are concerned, was to lands belonging to the state, in whom was also vested the title between high and low water mark. The southern boundary of the state was at low-water mark of the most southern tide marks of the islands, bars, and beaches in question. The case of Attrill v. Degrauw (C. C.) 90 Fed. 556, determined, among other things, that the title of the state of New York to the point of -Rockaway Beach was valid, and was conveyed to the predecessors in title of the complainant by the transfer under the authority of the act of the Legislature, the validity of which transfer was one of the grounds of the decision of the Circuit Court in that action. It must also be remembered that at the time Smith Foster first occupied in any way any of the land in question the point had already reached a position well to the west of the life saving station site, and substantially south of Barren Island, according to the charts, actually including some of the strips now claimed by the defendants. In 1877 and 1878, when the next great addition'to the point or jump of the channel is said to have occurred, the land added extended across the south front of Barren Island, being immediately west of that upon which Smith Foster had been staying, more or less, for some three or four years. It would seem, therefore, that Smith Foster and the other occupants of any portions of these lands were either there as tenants or agents of the defendants or as trespassers upon the property of the state of New York. Smith Foster’s occupancy (such as it was) and the use of certain land for the purpose of cutting grass and fishing and hunting by some of the defendants, as well as by others of the public, had •continued at the time of'the deed from the state of New York for some 11 years; and, inasmuch as title against the state cannot be secured, under the provisions of section 362 of the Code of Civil Procedure of New York, in the method known as that of adverse possession, until the 40-year period of limitation had expired, no rights had apparently been acquired against the state, nor even up to the present time would the interval have been sufficient to have allowed such rights to be perfected. But-the deed of the'state to private individuals was given in 1887, and it must be held that a successor to the title of the state can se
Under section 370 of the Code of Civil Procedure, a person claiming title founded upon a written instrument is deemed to have been possessed and occupied of land sufficiently to constitute adverse possession (1) where it has been usually cultivated or improved; (2) where it has been protected by a substantial inclosure; (3) where, although not inclosed, it has been used for the supply of fuel or of fencing timber, either for the purposes of husbandry, or for the ordinary use of the occupant, if this use has continued for the statutory ¡period. By section 371 it is provided that no adverse possession not founded upon a written instrument or a judgment or decree shall apply to more than the premises actually occupied. And by section 372 such occupation is said to be (1) where it has been protected by a substantial inclosure, (2) where it has been usualfy cultivated or improved. The occupation of no part of Rockaway Beach meets these requirements, with the exception of the immaterial portions around the houses of the tenants in question. As to all of these, with the exception of Smith Foster, whatever possession they may have had adverse to the complainant has been relinquished by their intentional failure to pay rent to the defendants, and by their taking of new leases under which they have paid rent to the complainant, this having happened in each case before the 20-year period, which would complete their possession, had expired. Their acts and their possession of the land cannot be taken advantage of by the defendants after the making of the new leases and the paying of rent to the complainant, for, if the defendants claim adverse possession by reason of the acts of these tenants, such possession must be adverse — that is, under a claim of title hostile to that of the complain
It is also claimed by the defendants that the complainant is not the real party in interest, and under section 4-49 of the Code of Civil Procedure cannot maintain the present action. It is unnecessary to consider the rights of beneficiaries, or whether the trust charged upon the property and admitted by the complainant is valid. The entire legal title is in him. So far as the record is concerned, he is the absolute owner of the property, and the purposes for which he held it would not defeat an action like the present. Nor can the claim that the deed of the Huntingtons to the complainant was void for champerty avail the defendants. No such possession in the defendants has been shown as would invalidate the complainant’s deed (Crary v. Goodman, 22 N. Y. 170: Danziger v. Boyd, 120 N. Y. 628, 24 N. K. 482), and the determination of the questions of fact as to adverse possession makes it plain that the deed of the record title from the Huntingtons to Van Deventer in 3901 should be upheld. An extremely interesting and troublesome situation would arise if in the future the growth of Rock-away Beach should be such that the channel or inlet between the present limits of the beach and Coney Island should be closed in a similar way to that in which the beach (considered in the case of IViulry v. Norton) was rejoined to the lauds upon the west, and if a series of storms or convulsions of land in that neighborhood should open an inlet to Jamaica Bay at some point in front of the bay itself. Such a change -would bring up directly the determination of the question whether owners of land fronting upon the ocean were entitled to a straight outlet to the high seas, or to any land that might be formed or arise from the sea within the extension of their lateral boundaries to that point, and, if the doctrine of the ^Mississippi River Cases could be held to apply, such land would necessarily become the property of the owners of the upland in front of which the new territory was formed. The effect of the determination which the court has reached previously in this opinion makes it necessary to consider this question. But, as has been said, inasmuch as the ownership of land upon the sea terminates at high-water mark, and inasmuch as the right to reach navigable water does not require an outlet straight out to the high seas, it would seem to follow that the creation of such a channel in front of littoral property as is now represented by Rockaway Inlet would terminate any claim to lands formed entirely outside of the original boundary lines, and entirely outside of any coast line upon the north side of their inlet. It would be impossible to consider that property holders upon the shores of lower New York Bay could claim ownership of any part of Sandy Hook simply because it had been formed between them and the open ocean if their original deeds had been bounded by that ocean, nor could the owners of laud in Rhode Island claim title to the extension of Bong island if the action of the sea should be such as to carry it to the eastward in such a way as to shut off the sea coast of Rhode Island, as it does that of Connecticut; and yet these questions would differ from the present only in degree, and not in kind, if the finding of the court as to the formation of the beach in question be correct.