Roberts v. Baumgarten

• Decision Date: 02 October 1888
• Citation: 110 N.Y. 380,18 N.E. 96
• Parties: ROBERTS v. BAUMGARTEN et al.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 380

18 N.E. 96

ROBERTS

v.BAUMGARTEN et al.¹

Court of Appeals of New York.

October 2, 1888.

Appeal from superior court of New York city, general term.

Action in ejectment by Edward Roberts against August Baumgarten and others, tenants under him. Trial before Mr. Justice TRUAX without a jury, resulting in findings and a judgment in favor of plaintiff, from which the defendants appealed to the general term, where the judgment was reversed, (opinion by SEDGWICK, C. J.) The plaintiff appeals to the court of appeals.

John Lindley, (Sutherland Tenney, of counsel,) for appellant.

Cephas Brainerd, for respondents.

GRAY, J.

This action was brought to recover the possession of certain lots of land on the southerly side of One Hundred and Seventh street, between Second and Third avenues, in the city of New York. Originally the premises in question under plaintiff's claim were covered by Harlem Mill creek, a small body of water connecting with the Harlem river, and in which the tide ebbed and flowed. To the east of where Third avenue now is, a dam was constructed to collect water for mill purposes, and by means of sluice-ways and connecting ponds the water-power was conducted to a mill east of Third avenue, and north of the creek. The plaintiff claims to derive his title through mesne conveyances from one Benjamin Benson. Benjamin Benson's deed to Peter B. Benson, his son, which was relied upon by the plaintiff as a source of title, conveyed by the following description, viz.: ‘All that messuage or tenement, being all my estate to the north of the mill-pond, between the fence of the widow Storm and the road leading to Harlem, including the mill-stream and mill and mill-pond, with all its privileges and appurtenances, and to shut the mill-dam at the south side of said mill-pond where it now lays,’ etc. Under this description plaintiff claims that the whole of Harlem Mill creek between the tops of its banks was conveyed, and that the grantee acquired the ownership of the bed of that stream. Such a construction of the grant, however, is not permissible, either by well-settled rules of law, or in the light which the facts disclosed by the proofs throw upon the claim. Harlem creek was subject to the ebb and flow of the tide to a point beyond the premises in question. Such bodies of water, at common law, were deemed to be navigable, and held to be royal rivers, or the property of the crown. They were placed on the same footing as the sea, and regarded as public highways. This rule of the common law became a part of the fundamental law of this state, by the adoption of the original constitution of 1777. There have been no revisions of that instrument, or any acts of the legislature, which in anywise affected the continuance of such a rule as a part of the body of the law of our state, and as one which governs in cases where the rights of riparian owners to waters subjected to tidal influences are in question. To the rights of the crown the people of this state succeeded upon their separation; and the title to the lands under water, where the tide flows and reflows, vested and remained in them. This rule has been uniformly recognized in the adjudged cases in the reports of this state, which discuss the title of the people to such lands. The courts in this country have further, and have not felt bound by the distinction that the flux and reflux of the tide is the controlling element in determining the character of our bodies of water. The reasons which dictated the rule in England, where navigability of its waters depended upon tidal influences, were plainly inapplicable to our large inland rivers and lakes. An elaborate and instructive review of the adjudged cas...