McFarlane v. Kerr

1. When the owner of land in the City of New York, bounded on one side by high water mark, continues the fences, on his lines running to the water, down to low water mark, to prevent cattle passing around them; this is not such an occupancy or inclosure of .the land between high water mark and low water mark, as will constitute an adverse possession, against the city in whom the title thereto is vested by charter. 2. Nor is the building of a bulkhead, or the filling in with earth, of a limited portion of the land between high and low water.mark, an improvement of it; nor is the cutting of sedge thereon, under a claim of a custom of the owners of the upland to cut sedge below high water mark, an occupation thereof, such as is necessary to amount to an adverse possession. 4. The corporation of the city'are not estopped from claiming title to land between high and low water mark, by their having designated it for years upon their maps as the property of an individual, and having assessed taxes and the expenses of improvements thereofi as his property, and collected the same from him.

Appeal from a judgment in favor of the defendant, recovered by the plaintiff upon a trial before Mr. justice Moncrief, without a Jury, in ¡November, 1861. The plaintiff sued to compel the specific performance of a contract by the defendant to purchase twelve lots of land on Fourth avenue, between 133d and 134th streets, in the Oity of ¡New York. The defendant alleged that the plaintiff’s title was defective, and he therefore refused to complete the purchase. A portion of the premises lay below the line of original high water mark, and between high and low water mark of Harlem river, and the question in the case was, whether the plaintiff had title to that portion. To the other part of the land his title was not questioned. The premises in question were in the water front of tracts of land which were occupied as farms down to about the year 1838, when they were laid out in lots upon a map conforming to the proposed streets and avenues of the city. A portion of the lots in question were between the line of high and low water mark, which area, by the charters of the Oity of Hew York, belonged to the city corporation and their grantees. The plaintiff claimed by various mesne conveyances and foreclosures, under a deed or mortgage executed in 1838, by Charles Henry Hall, who was the owner of the upland, which deed and all the subsequent conveyances, assumed to convey the lots in question, designating them1 as such. The previous conveyances, under which Hall claimed, described the lands as bounded in this direction by the river. It appeared that for many years, the plaintiff and those under whom he claimed, had been designated as the owners of these lots, upon the maps of the city corporation, and had been assessed by the corporation with taxes and with the expenses of improvements, and had paid the same, and the plaintiff claimed that the occupancy of the premises and the payment of taxes and assessments gave him good title, and precluded the city from any claim to the premises. The Justice, before whom the cause was tried, found that the plaintiff had not title; and that the defendant was entitled to judgment for the amount which he had advanced upon the contract, with interest, and his expenses in investigating the title. The plaintiff took exceptions to these findings, and appealed from the judgment. I. The patents by the Royal Governors under the crown of Great Britain, to the freeholders and inhabitants of Harlem in 1666 and 1686, granted to and vested in them title in fee to the lands between high and low water mark of Harlem river, and such freeholders and inhabitants owners of the adjoining upland, have always claimed and exercised rights of ownership in and over said land, between high and low water mark, undisturbed and unquestioned by any person. (See North Hempstead v. Hempstead, 2 Wend., 109.) The Sovereign is presumptively owner of the shore of the sea, and of the bed and shore of all navigable streams, where the tide flows and ebbs; but the Sovereign may grant the same, and an individual proprietor may prove title in himself thereto by express grant, or by usage or prescription. (Hale De Jure Maris, chs. 5 and 6; Blundell v. Catterall, 5 Barn. & Ad., 268; Commissioners of Canal Fund v. Kempshall, 26 Wend., 404, 413; Child v. Starr, 4 Hill, 369; 3 Kent’s Com., 427, &c.) An individual proprietor under such title, owns and may improve and use the shore, by building or otherwise, for any purpose which does not so affect the channel and navigation of the stream, as to be a purpresture or nuisance, and no structure upon or use of land between high and low water mark on Harlem river can be a nuisance, since the act of April 14th, 1852, and the acts in relation to the harbor commissioners and the proceedings under the same. (Laws of 1852, p. 420, ch. 285; Harbor Commissioners’ Acts and Maps.) II. The Dongan and Montgomerie charters gave all these lands between high and low water mark, to the city of Hew York; and “The State of Hew York” has never owned, or claimed to own such lands between high and low water mark, or any part thereof. (Charters of New York; Acts of Colonial Legislature, Davies City Laws, p. 198; and 8 Barb., 291, 292.) III. When an adjoining riparian proprietor, or any other person, has, in- any way, by grant or by prescription, acquired title as against the Sovereign to the shore or to the bed of a navigable stream, the same rules of law in relation to the conveyance, possession, and use of such shore or bed, apply to and govern the same, as to any other land or real estate. IV. The deed by Myer, executor, to Adriance, dated 10th May, 1787, and that by Lawrence to Furman, dated 26th July, 1804, in legal intendment, include and convey the shore of Harlem river between high and low water mark in front of the parcels of upland in such deeds respectively, described; and, under such conveyances, the grantees claimed, possessed, and used such shore, as their private property. (Child v. Starr, 4 Hill, 369, and opinions and cases cited.) V. So also of the deed by Adriance to Hall, dated 27th June, 1825, and that by Furman to Hall, dated 5th July, 1825. (Authorities above cited.) VI. The case shows no ground for claim or pretense of title to the premises in question, adverse to the plaintiff, in any other person than “ The City of Hew Yorkand as against the city, and all other persons, the plaintiff has proved perfect title in himself through conveyances in writing, and by adverse possession founded thereon. The possession by plaintiff and his grantees, if it were not founded on written instruments, has been sufficien t to bar any claim of title by the city. (2 R. S., 294, §§ 9-12 ; Code of Pro., §§ 82-85; Jackson v. Vermilyea, 6 Cow., 678; Poor v. Horton, 15 Barb., 485; People v. Van Rensselaer, 5 Seld., 291.) VII. The title of plaintiff and his grantors has been, for more than twenty years, acknowledged by the City of Hew York, by maps, assessing taxes, and the. award for benefit and damage on the opening of Fourth avenue. VIII. There is no allegation or pretense that the City of Hew York or any other person, has ever claimed any title or interest. IX. Plaintiff has .shown a good, merchantable title in himself to the whole premises contracted to be conveyed; and the defendant has proved nothing to impeach that title; not even a pretense' of claim by any other person thereto ; the judgment of the Special Term was therefore erroneous and should be reversed; and judgment rendered for specific performance by defendant of the contract in question; with costs to plaintiff. (Story’s Eq. Jur., § 749; Pyrke v. Waddington, 17 Eng. L. & E. R., 534.) I. The plaintiff was bound to show such marketable title as was free from doubt, and which would secure to the purchaser full and unembarrassed enjoyment of the property. (1 Hilliard on Vendors, 209, 211, 443 ; 2 Id., 15; Adams’ Eq., 258.) It is not sufficient that the title be such as would prevail in an action to try the right to the property. (Story Eq. Jur., § 749; Jervoise v. Duke of Somerset, 1 Jac. & Walk., 549; Cooper v. Denne, 1 Ves. Jr., 567; Fry on Specific Per. (84 Law Lib. N. S.), 256 ; Pyrke v. Waddingham, 17 Eng. C. L. and Eq., 539; S. C., 10 Hare., 1.) IT. The plaintiff had no title by deed or judgment which assumed to convey the premises to Hall, under whom he claimed. (3 Kent’s Com., 427-432; Halsey v. McCormick, 3 Kern., 297; Lansing v. Smith, 4 Wend., 20; Lowndes v. Dickerson, 34 Barb., 586; Gould v. The Hudson River R. R. Co., 2 Seld., 522; Canal Commissioners v The People, 5 Wend., 448 ; Furman v. Mayor, &c., of N. Y., 6 Seld., 567; Jackson v. Hathaway, 15 Johns., 454; Lawrence v. Delano, 3 Sandf. S. C., 340.) III. The facts proved do not show any adverse possession by Hall, or any person holding under Mm. (Emans v Turnbull, 2 Johns., 322; Smith v. Levinus, 4 Seld., 472; Hammond v. Inloes, 4 Maryland, 138; 2 R. S., 294, §§ 11, 12; Corning v. Troy Iron & Nail Factory, 34 Barb., 529; S. C., 22 How. Pr., 212; Revisers’ note, 3 R. S., (2 ed.), 700; Lane v. Gould, 10 Barb., 254; Humbert v. Trinity Church, 24 Wend., 587; Bowie v. Brake, 3 Duer, 35; Jackson v. Frost, 5 Cow., 346; Simpson v. Downing, 23 Wend., 316; Bullen v. Arnold, 31 Maine, 583; Davies’ Laws City N. Y., 539; See Street Opening Act of 1813; 2 R. L. of 1813, 418, § 184.) IV. The facts proved with a view to establish an adverse possession are insufficient to sustain a title, as between opposing claimants; far less do they show such a clear undoubted, and exclusive possession continuously, for the time necessary to constitute an absolute estate in fee simple, by adverse possession such as would warrant a judgment for a specific performance. (Smith v. Death, 5 Mad., 371; Cotterel v. Watkins, 1 Beav., 361; Pyrke v. Waddington, 17 Eng. C. L. and Eq., 539.) V. The judgment in favor of defendant, awarding a return of the money he had advanced upon the contract, with interest, and his expenses of examining the title was correct, and ought to be affirmed. (2 Hilliard on Yend., 15.)