117 N.Y.S. 485 | N.Y. App. Div. | 1909
Lead Opinion
This action was brought to compel the determination of a claim to real property under chapter-14, title 1, article 5, of the Code of Civil Procedure. Plaintiff alleges that the land which defendant unjustly claims lies between the center line of Vanderveer’s mill pond or Fresh creek and the easterly line thereof. Fresh creek at this point was a tidal creek. It rose some distance north of the premises in question, and emptied into Jamaica bay about a mile to the south. At flood tide the salt water from the bay backed up until the creek was five or six feet deep. At low tide it consisted of a narrow stream of fresh water from six inches to a foot deep! Very many years ago the owners of the upland on the west of the creek built a dam across it, with flood gates which opened inward by the action of the incoming tide. When the tide turned the gates closed, impounding the water, which was then drawn off as needed through.a sluiceway to turn the wheel of a mill on the west bank of the stream. The effect of this was to cause the stream to overflow
To maintain this action plaintiff must show, first, possession of the land in dispute, and that such possession is under claim and color of title, and not that of a mere trespasser or licensee. (Bohn v. Hatch, 133 N. Y. 64.) Such title must be either to the fee of the land or to an estate for life or for a term of years not less than ten. (Code Civ. Proc. §§ 1638,1639.) A right to an easement is not enough. (Consolidated Ice Co. v. Mayor, etc., of N. Y., 166 N. Y. 92.) This action was commenced in.May, 1907. The first deed in plaintiff’s chain of title, which by metes and bounds includes in its description the land lying between the center of Fresh creek and the mill, pond and the easterly boundary of the same, was made in October, 1905, by one John Vanderveer to James E. Harrity. Several prior conveyances were introduced in evidence, as well as several wills, but none of these trace plaintiff’s title back to the sovereign. It is admitted that this cannot be done. The deeds prior to the Harrity deed, which were admitted in evidence, bound the property thereby conveyed “ easterly by the Fresh Kill,” or describe it as the “grist mill” property “ adjoining the Fresh Kill or Creek aforesaid.” Plaintiff’s claim of title must, therefore, be' under the deed made in 1905. As that deed purports to convey the fee, whether such title were good or bad, if plaintiff also prove the necessary possession, that would probably be sufficient to call on defendants to show their title, and if they failed to do so, or to show a better title than that of the plaintiff, the latter would be entitled to judgment. (Ford v. Belmont, 69 N. Y. 567; Merritt v. Smith, 50 App. Div. 349; Stackhouse v. Stotenbur, 22 id. 312.) But the possession referred to must be in plaintiff at the time of the commencement of the action (Code Civ. Proc. § 1639), and miist have been continuously maintained by him or those from whom he claims his title, for one year preceding. (Id.) The action is purely statutory, and will not lie unless the conditions prescribed in the statute are fulfilled. (Lewis v. Howe, 174 N. Y. 340.) At the time of the commencement of the action, and for some time prior thereto, the dam had been broken down
The judgment appealed from must be reversed and a new trial granted, costs to abide the final award of costs.
Woodward, Jenks and Eich, JJ., concurred 5 Gaynor, J., concurred in separate memorandum.
Concurrence Opinion
(concurring):
The title deeds of the parties show that the land of the plaintiff’s predecessors ran to Fresh Kill on the East, and that the lands of the defendants ran to the said kill on the West, the said kill being thus the boundary line between them. The said kill is a tidewater creek running into Jamaica Bay. About 200 years ago the plaintiff’s remote predecessor in title put a dam across the said kill with
Such overflow of the land of the defendants’ predecessors by the plaintiff’s predecessors does not show an adverse possession thereof under claim of title in the latter, which of course would have long since ripened into title, but only an easement, a claim of user, which may have ripened into a right by prescription, but not into title to the land, which is a very different thing. The right acquired by prescription by .a user is measured by the user itself (Hammond v. Zehner, 21 N. Y. 118; Washb. on Real Prop. bk. 2, ch. 1, § 3,-sub. 19). The user being abandoned, and the title being in the defendants, the plaintiff has no case.
Judgment reversed and new trial granted, costs to abide the final award of costs.