Oakes v. De Lancey

• Decision Date: 26 April 1892
• Citation: 133 N.Y. 227,30 N.E. 974
• Parties: OAKES v. DE LANCEY.
• Court: New York Court of Appeals Court of Appeals

133 N.Y. 227

30 N.E. 974

OAKES

v.DE LANCEY.

Court of Appeals of New York.

April 26, 1892.

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

Action by Thomas F. Oakes against Edward F. De Lancey, to recover for a deficiency in the quantity of land sold by defendant to plaintiff. From a judgment of the general term, (15 N. Y. Supp. 561,) affirming a judgment for defendant at special term, (14 N. Y. Supp. 294,) plaintiff appeals. Affirmed.

Holmes & Adams, (Artemas H. Holmes, of counsel,) for appellant.

Martin J. Keogh, for respondent.

FINCH, J.

The only question raised by this appeal is over the true construction of the deed given by the defendant. The premises were described as ‘Vergemere,’ and bounded on the north and east by the waters of Long Island sound; and the dispute is whether the description of the conveyance includes or excludes the strip of land on the water fronts between high and low water, and which constitutes the shore. The description is thus pbrased: ‘Beginning at a point in the center line of an avenue sixty feet wide, known as ‘De Lancey Avenue,’ which point bears south, forty-two degrees and forty-seven minutes west, thirty feet from the point of intersection of the division line between the property hereby conveyed and the land conveyed by the late Peter John De Lancey, of Geneva, New York, to James J. Burnett, with the northeasterly line of said De Lancey avenue; and thence, running along said division line, north, forty-two degrees and forty-seven minutes east, about eight hundred and sixty-five feet, to a point on the shore of Long Island sound; thence, running along said shore land sound as the same bend and turn easterly, and then southerly, to their intersecton with the center line of De Lancey avenue aforesaid; and thence running along said center line of said De Lancey avenue, forty-nine degrees and fifty-five minutes west, about twelve hundred and eighty-eight feet, to the point or place of beginning; containing twenty-two acres and fifty seven hundredths of an acre of land, be the same more or less.' It will be observed that the starting point of this description is fixed with accuracy and care; and the surveys show that the first course, if run in obedience to the distance given, will extend to lowwater mark; and that the last course, to obey the same requirement of distance, must start at low-water mark on the easterly water front. The surveys also show that the strip between high and low water must be included in order to correspond with the quantity of land which the deed purports to convey. The courses and distances and the quantity of land carry the description to low-water mark, and can only be satisfied by including the area of the shore. But the appellant, relying upon the rule that fixed monuments control, and distances and quantities must yield to their safer and superior authority, insists that the shore is such a monument, and by the shore is always meant the line of high water when the boundary is the sea. That is undoubtedly true,...