Roe v. Strong

• Decision Date: 29 November 1887
• Citation: 107 N.Y. 350,14 N.E. 294
• Parties: ROE and another, Ex'rs, etc., v. STRONG and others.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 350

14 N.E. 294

ROE and another, Ex'rs, etc.,

v.STRONG and others.

Court of Appeals of New York.

November 29, 1887.

Appeal from general term, supreme court, Second department.

In the summer of 1879 defendants, Caroline A., Thomas S., Selah B., Mary T., and John T. Strong, constructed a dock or wharf upon an arm of Setauket harbor, near a piece of farm belonging to Elizabeth F. Floyd and Sarah A. Vingut, plaintiffs. Defendants also constructed a bridge from their premises to this dock or wharf. No part of the bridge is over or upon land which plaintiffs claim, while a portion of the dock is. Action for removal of this bridge and for damages was brought, and tried at special term of the supreme court, Suffolk county, before J. W. GILBERT, J., and a jury, the latter finding the question whether the south-westerly terminus of the bridge was above the line of high water in the affirmative. Upon questions of law reserved the judge afterwards rendered judgment for defendants, dismissing the suit. Plaintiffs appealed, and at the December term, 1881, of the supreme court, general term, the judgment was reversed and a new trial ordered. The case was subsequently tried before Judge EDGAR M. CULLEN, without a jury, and judgment rendered in favor of plaintiffs for the removal of the bridge, 6 cents damages, and costs. Defendants appealed to the general term of the supreme court, and, upon affirmance of that judgment, to the court of appeals. Upon suggestion made of the death of Elizabeth F. Floyd, one of the plaintiffs, it was ordered that the action survive in the name of her executors, Alfred Roe and William Cruikshank.

Strong & Spear, for appellants.

Roe & Macklin, for respondents.

ANDREWS, J.

The judgment requires the defendants to remove the wharf and bridge erected by them, from the upland on the southerly side of Setauket harbor, and also from that part of the shore adjacent to the upland, between high-water mark and the northerly line in the Seaton deed of 1768. The judgment rests upon the finding that the plaintiffs are the owners of the land and of the adjacent shore up to the line in the Seaton deed. The plaintiffs on the trial rested their case upon the claim that they had the legal title to the upland and the shore, and that the erections of the defendants were an invasion of their right of property in the soil. If the plaintiffs own the upland, but not the shore, the judgment is too broad; and if they have title neither to the upland nor the shore, they were not, upon any facts appearing in the record, entitled to any relief. The plaintiffs rely upon two claims of title: (1) The homestead title; and (2) their title under the Seaton deed.

It is conceded that Richard Floyd, the ancestor of the plaintiffs, settled upon a tract of about 50 acres of land, situate on Setauket harbor, in the present town of Brookhaven, more than two centuries ago, and that this tract, called the homestead, has ever since remained in possession of his descendants. The origin of his title is not shown. The plaintiffs offered and read in evidence, under objection, an extract from Thompson's History of Long Island, with a view of establishing that Richard Floyd's possession antedated the Nicolls patent of 1666. This evidence was incompetent. McKinnon v. Bliss, 21 N. Y. 206; 1 Greenl. Ev. § 497. They also proved a tradition that the Floyds came to this country about 1646, and afterwards settled on Setauket harbor, but in what year there is no definite proof. On a new trial the requisite evidence may be given. The point is material upon the question whether the homestead lot was bounded on the north by the water. If Richard Floyd's possession antedated the Nicolls patent, there would be a strong presumption that his title, however derived, extended to high-water mark. The 50 acres is adjacent to the harbor; and, in the absence of evidence to the contrary, it could not be supposed that the persons from whom Richard Floyd derived title, reserved a strip a few rods wide along the shore, thereby cutting him off from access to the water over his own land. There is no evidence of any such reservation in titles acquired prior to the Nicolls patent, and the Duke of York's laws, enacted in 1665, the year preceding the granting of the patent, confirmed the title of the then settlers to the lands in their possession. If, however, the possession of Richard Floyd, the ancestor, originated after the Nicolls patent, and his title is derived thereunder, then it seems probable that the cliff was the boundary on the water side, leaving a strip of land along the shore above high-water mark which was reserved for common use. It seems to have been the practice of the towns of Long island to make this reservation in the allotment of common lands held under patents from the colonial government. See Trustees of East Hampton v. Kirk, 68 N. Y. 459. The defendants, in confirmation of the claim that the practice prevailed in respect to allotments of the common lands of the town of Brookhaven, produced the ancient town records of the town, from which it appears that, at a meeting of the trustees February 5, 1755, it was voted and agreed that ‘ye lots that were laid out on the should and harbors were designed to extend to ye bottom of ye cliffs against ye said lots,’ and it also appears from the same records that Col. Richard Floyd, then the owner of the homestead tract, was during that year one of the trustees of the town.

But passing this question, which by evidence on a new trial may be freed from obscurity, and assuming that the plaintiff's boundary of the upland extends to high-water mark, we are of opinion that they failed to establish title to any part of the shore, over which the bridge was built, or any injury to their rights as...