Low v. State of New York

• Decision Date: 02 April 1952
• Citation: 202 Misc. 455
• Parties: A. Augustus Low, Individually and as Administrator with the Will Annexed of Abbott A. Low, Deceased, et al., Claimants,<BR>v.<BR>State of New York, Defendant. (Claim No. 30361.)
• Court: New York Court of Claims

202 Misc. 455

A. Augustus Low, Individually and as Administrator with the Will Annexed of Abbott A. Low, Deceased, et al., Claimants,

v.State of New York, Defendant. (Claim No. 30361.)

April 2, 1952.

Francis C. Steates and J. Theodore Cross for claimants.

Nathaniel L. Goldstein, Attorney-General (Douglas L. Manley of counsel), for defendant.

GORMAN, J.

About 1903, Abbott A. Low built a dam across the Bog River in Adirondack Park, St. Lawrence County, near the Hamilton County line. Some 3,000 acres of wild forest land were flooded including a small swamp area which the State of of New York claimed as part of its forest preserve. In 1905, after an investigation by the Superintendent of State Forests, Mr. Low was told to lower the water in his dam and that he would be held liable "for damages, already inflicted, as fixed by law, as well as for any subsequent damages" for any timber destroyed by the flooding. Mr. Low opened his dam gates and lowered the water level at this time. On July 3, 1908, he was informed in writing that his impounded waters were flooding State lands and "unless immediate settlement is made an action will be begun to enforce the penalties prescribed by law." The penalty for the killing of each tree was set forth to be $10 and Low was informed that he would be held to strict accountability for his acts. As a result of these representations, Low paid, as a penalty, to the State of New York, the sum of $7,000.

Neither Abbott A. Low, during his lifetime, nor his executrix, Marian Low, during her lifetime, until her death in 1928, had any suspicion that the State was not the owner of the lands in question. After her death there was no representative of Low's estate until his son, A. Augustus Low, was appointed administrator c. t. a. June 30, 1950. The first intimation to any one associated with the Low family that the State's representation of ownership was questionable came to Low, Jr. in 1930 through a casual conversation. He promptly started an investigation and began negotiations with the State in an effort to ascertain the true fact. He acquired certain property rights and by reason of information and material taken in great part from official records and State documents contended that because of errors and conflicts in certain ancient surveys the State did not own the land between the St. Lawrence County line and the so-called "Brodhead Line", which was part of a parcel known as the "triangle north of Township 38", Totten and Crossfield's Purchase. He contended moreover that, by reason of those survey errors and consequent defects in certain conveyances to the State, the State also had no interest or title in a strip of land along the north line of Township 38. He asserted that the deeds of 1896 and 1898, purporting to convey the triangle north of Township 38 and the contiguous parcel in the township, were ineffective to convey the lands between the erroneous "Richards line" and the "Campbell" or "true line" bounding the township on the north. He called attention to the illegality of the tax deed of November 27, 1903, as based upon a cancelled sale and to the tax deed of October 17, 1907, where it appeared that the lands were not exposed to sale. He proposed to amicably resolve all these questions by personally acquiring and conveying to the State, title to the lands involved, in return only for the right to flood about 160 acres of the land to be conveyed. Although these negotiations covered a period of approximately nine years, no settlement was reached, and in August of 1939, Mr. Low began the first of three title actions in the Supreme Court to determine the controversies. As a result of these adjudications, all of the contentions of the claimant as to the correct boundary lines and title were upheld. A final judgment in the partition action which was the initial action, tried in August of 1939, was entered on May 8, 1950, and A. Augustus Low was appointed administrator of his father's estate on June 30, 1950. The original claim in the present action was filed on July 6, 1950, and was amended on October 18, 1950.

In 1772, Archibald Campbell and one Stansborough surveyed and marked from its western terminus easterly, the north boundary line of the Totten and Crossfield's Purchase and divided it into townships. A copy of this division was made and filed in the office of the Secretary of State.

In 1797, Charles Brodhead, at the direction of the Surveyor General, attempted to locate the Campbell line, and unable to follow the markings of the Campbell line, at a point some distance easterly of the point where the westerly line of the triangle north of Township 38 intersects the Campbell line, he veered to the south and proceeded along such erroneous line easterly across the triangle.

In 1821, John Richards was directed to allot various townships including the triangle north of Township 38. In so doing he used the erroneous Brodhead line, believing and stating it to be the Campbell line and superimposed a second triangle upon a portion of the original true triangle. A plat of the triangle plotted by Richards was filed in the office of the Secretary of State as Map No. 604. Although the State by thus mistakenly surveying lands it had granted could not thereby alter the location of what it had patented, much of the tenacity displayed by the State in its later vulnerable representations, emanated from this erroneous survey. All of the flooding, except such as took place on the land partitioned to Low in the first action, took place on the area between the Brodhead and the Campbell lines.

The Campbell north line of 1772, the Brodhead erroneous line of 1797, and the Richards erroneous line of 1821, marked by him from the Brodhead line as the south line of the triangle north of Township 38, were identified upon the ground and recognized as to their source by various surveyors at various times thereafter.

In 1854, S. H. Snell found these marked lines upon the ground. He identified them and recognized which were correct and which were erroneous. A copy of Snell's field notes which perpetuated his work, was made by him for the State under the direction of Verplank Colvin, Superintendent of the Adirondack Lands Survey. In 1891, D. C. Wood identified these various lines, recognized which were correct and which were erroneous, identically with Snell, and so recorded them in his field notes, referring to the Brodhead line as the "erroneous county line" and to the Campbell line as the "county line".

In 1894, D. C. Wood prepared a description which was incorporated in the deed from Webb to Ne-ha-sa-ne Park Association of 1894. Two years later he prepared the description to be used in the deed from Webb and Ne-ha-sa-ne Park Association to the State and the State engineer's office checked and verified this description and the acreage. It is apparent from the reduction in acreage in the descriptions of these conveyances that some of the land surveyed by Wood as part of the triangle and incorporated in the 1894 deed was eliminated from the 1896 deed. The eliminated acreage consisted of the land between the Brodhead and Campbell lines and was part of the flooded area. The map entitled "Map of Lands in Herkimer & Hamilton Counties sold to the State of New York by W. S. Webb & Ne-ha-sa-ne Park Ass'n. Dec. 1895, D. C. Wood, Surveyor" was filed in the office of the Secretary of State — 339-A. In 1896, immediately upon completion of the Webb purchase, the Conservation Department in its annual report, published a list of the lands acquired from Webb and it listed the Richards lots, lot by lot, acreage by acreage, and omitted the unallotted area between the Brodhead and Campbell lines. In 1896, the Comptroller added these same lands with the same descriptions to his State lands list and in the same year the State engineer and surveyor likewise reviewed and reported these lots and these acreages to the Legislature.

In 1897, Verplank Colvin included in his annual report to the Legislature which was published and circulated, discussions as to this "great boundary line". In 1898, Verplank Colvin sent Lorrin Kelly to make a study of these lines upon the ground. Kelly's work was perpetuated and a map was made and printed showing the existing area between the two lines.

In 1901, Herkimer County assessed the area between the Brodhead and the Campbell lines to the State, levied a tax and forwarded its list of taxes to the State Comptroller. The State Comptroller verified that these lands were not claimed by the State, and that that they were not on the State lands lists. The Comptroller sent his own surveyor, Clark, to make a survey of the gore. Clark made his survey, placed it on a map and that map was filed in the Comptroller's office. Then Wood Brothers made a map for Herkimer County showing this unallotted area and a copy was filed in the Conservation Department and with the Comptroller. The Comptroller then rejected these taxes as assessed upon lands not on the State lands lists.

Just prior to the county line survey of 1902-1904, the Attorney-General rendered his opinion recognizing the Brodhead line as erroneous, and in 1904, the County of Herkimer again assessed this area and again the taxes were rejected by the State.

The discrepancy between the true line and the erroneous line was further recognized by Deputy New York State Engineer Flanagan and by D. C. Wood, surveying for the State engineer's office in 1902 and 1903, and the State engineer and surveyor made note of it in his survey of the county line of 1904.

On May 23, 1905, the State Superintendent of Forests directed Robert Moore to make a thorough investigation of the flooding. There is nothing to indicate that the investigation on the part of the State was not thorough. It would seem on this record, that a careful examination of its own records would have afforded realization that these were not State lands. Certainly a fair and reasonable study of the...