Smith v. Bartlett
| Decision Date | 03 February 1905 |
| Citation | 180 N.Y. 360,73 N.E. 63 |
| Parties | SMITH et al. v. BARTLETT. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
Action by William E. T. Smith and others against John J. Bartlett. From a judgment of the Appellate Division (81 N. Y. Supp. 231,79 App. Div. 174) affirming a judgment for plaintiffs, defendant appeals. Reversed.
Jesse Johnson, for appellant.
Clarence G. T. Smith, for respondents.
This action was brought to determine the ownership of the lands under water of the west half of Connecticut or Carman's river, on Long Island. The plaintiffs are the owners of the upland on the east side of the river, and the defendant is the owner of that abutting upon the lands in dispute upon the west side of the river. The property in question is a portion of the land included in the patent to Col. William Smith from Colonial Governor Fletcher, dated October 9, 1693, which conveyed to him a large tract of land, on both sides of Long Island, in the town of Brookhaven, including that under water, and was bounded on the west by ‘the westermost bank of a river called East Connecticut, and soe along the banke of the sd river to a creek running out of the sd river, called Yaphanke, and soe along the southwest bank of ye sd creek unto its head, the whole creek included, to a marked pine tree at ye head of ye sd creek, and soe in a direct north lyne until it comes to the bank of Connecticut River aforesd to a marked tree on the west syde of said river.’ On the 23d day of April, 1704, Col. William Smith executed his last will and testament, which is recorded in the surrogate's office of the city and county of New York. The respective parties hereto claim title under this will, and their rights must be determined upon the construction that should be given to its provisions. After making various devises of real estate to his other children, he devised to his son William Henry Smith as follows: ‘After his mother's death my house on the south side of this island within the mannor of St. Georges which stands on Sebornucke Neck with a full moyety or halfe part of all my land and meadow on the south-side of this island within my mannor of St. Georges afforesd and being esteward of Connecticut or Sebormuck River with an entire moytie of my beach from Cupswoge gut Easteward to the head of Longe Cove Westward * * * with one entyre right of commondage & to all future divisions of undivided land wch shall or may hereafter acrew due to the sd acomodacon which land premises with all other apurtinances my will is that hee the said William Henry his heirs executors administrators or assigns shall have hould and enjoy forever.’ The other half was devised to his son Charles Jeffery Smith, with the proviso that, if he should die under age and without issue, the whole should go to William Henry. Charles Jeffery did die under age and without issue, and thereby William Henry Smith became vested with the whole of the property so devised. He also devised to his youngest daughters Jeane and Gloryana, to be equally divided between them, ‘all my land and meadown on ye west side of Connecticut or Sobomuck River beginning at the head of Yaptianeck and by a north line until it comes again to ye river as in my patent set forth.’
The trial court has found as a fact that the Connecticut river was a navigable stream in which the tide ebbed and flowed, and then construes the will to the effect that it was the intention of the testator to limit the eastern boundary of the land devised to the daughters to the western bank of the river at high-water mark; that the testator intended to dispose of all of his real property, and did not intend to die intestate as to any part thereof; and that the lands under the waters of the river passed to his son William Henry under what is denominated as the ‘devise of the residue.’ For the purposes of this case, we may assume that the ‘devise,’ so called, is sufficiently broad to vest in the son William Henry all of the lands on the south side of the island not otherwise devised and disposed of by the will, and that it included all of the lands under water of the Connecticut river below Yaphank creek, so that his western boundary is the western bank of the river, as described in the patent of the testator, and that the testator intended to dispose of all of his real property by his will.
The question remaining is as to what the testator intended to devise to the sons named and to the daughters. It will be observed that to these sons he gave that which was on the east side of the river, and unto the daughters he devised that which was upon the west side of the river above Yaphank creek, where he was the owner of the lands upon both sides. Neither the devise to the sons nor to the daughters is bounded upon the bank of the river. It was doubtless the rule at common law that in patents or grants from...
To continue reading
Request your trial
-
Matter of Lumpkin Sand and Gravel, Inc.
...boundary by the river carries title to the center absent a clear and express restriction of the title to the upland.); Smith v. Bartlett, 180 N.Y. 360, 73 N.E. 63 (1905) ("When a deed describes lands so bounded by a river, which is navigable in fact, the rule prima facie is that the deed co......
-
Kernan v. Williams
...579, 52 N.E. 567; see Matter of City of New York [W. 10th St. Realty Corp.], 256 N.Y. 222, 224–226, 176 N.E. 173; Smith v. Bartlett, 180 N.Y. 360, 362, 366, 73 N.E. 63). Here, regardless of whether title to the underwater land merges and passes with title to adjacent uplands, or is conveyed......
-
Farmers State Bank & Trust Co. v. Mangold
...Smith v. Creech, 186 N.C. 187, 119 S.E. 3; Smith v. Bartlett, 79 App.Div. 174, 81 N.Y.S. 231, reversed on other grounds, 180 N.Y. 360, 73 N.E. 63; In re Estate of Kelly, 177 Minn. 311, 225 N.W. 156, 67 A.L.R. 1268. But we do not find any support for the plaintiff's theory in what Mrs. Liter......
-
White v. Knickerbocker Ice Co.
...31 N. E. 865,18 L. R. A. 695, 30 Am. St. Rep. 669. The legal effect of a conveyance is determined by the terms employed. Smith v. Bartlett, 180 N. Y. 360, 73 N. E. 63. Each case, however, depends largely on its own facts. By the above description, did the words, ‘thence westerly along the s......