120 A.D. 576, Iselin v. Village of Cold Spring

Citation:120 A.D. 576
Party Name:MARY P. ISELIN, Appellant, v. THE VILLAGE OF COLD SPRING and HENRY METCALFE and Others, as Trustees of the Village of Cold Spring, Respondents.
Case Date:June 14, 1907
Court:New York Supreme Court Appelate Division, Second Department
 
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Page 576

120 A.D. 576

MARY P. ISELIN, Appellant,

v.

THE VILLAGE OF COLD SPRING and HENRY METCALFE and Others, as Trustees of the Village of Cold Spring, Respondents.

Supreme Court of New York, Second Department.

June 14, 1907

APPEAL by the plaintiff, Mary P. Iselin, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Putnam on the 23d day of May, 1906, upon the decision of the court, rendered after a trial at the Orange Special Term, dismissing the complaint, and also from an order entered in said clerk's office on the 2d day of December, 1905, vacating an injunction pendente lite theretofore granted to the plaintiff.

COUNSEL

Charles F. Brown [Louis M. Sonnenberg with him on the brief], for the appellant.

Joseph A. Greene [Egbert V. Nelson with him on the brief], for the respondents.

Page 577

MILLER, J.:

The action is for an injunction to restrain the construction of a sewer through property claimed by the plaintiff, consisting of a dock built into the Hudson river at the foot of Main street in the village of Cold Spring. The plaintiff's title is not attacked, but the defendants claim that the locus in quo is a public street.

The plaintiff traces her title to a grant of lands under water made by the State in 1811 to her predecessors in title who were the owners of the upland. The lands so granted were not filled in until about 1836. A dock appears to have been constructed upon the site of the present dock as early as 1842, since when it has continuously been recognized as the private property of the plaintiff and her predecessors. The village has assessed it as far back as the village records show, it has paid rent for the use of it, and now for the first time asserts a public easement.

The defendants rely upon the doctrine that a union between easements on land and on navigable waters once made cannot be broken by subsequent changes in the land, whether made by natural or artificial means. (People v. Lambier, 5 Den. 9; Matter of City of Brooklyn, 73 N.Y. 179.) In order to invoke this doctrine the defendants had to show that before the land was filled in, as stated supra, Main street extended to the waters of the Hudson river.

It may be assumed that a public right cannot be extinguished by adverse user, but the fact that the plaintiff and her predecessors have had uninterrupted and exclusive possession for more than sixty years and that the public authorities have repeatedly recognized their right to possession, is...

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