Stewart v. Turney

• Citation: 237 N.Y. 117,142 N.E. 437
• Parties: STEWART et al. v. TURNEY et al.
• Decision Date: 27 November 1923
• Court: New York Court of Appeals Court of Appeals

237 N.Y. 117

142 N.E. 437

STEWART et al.

v.TURNEY et al.

Court of Appeals of New York.

Nov. 27 1923.

Action by Samuel Stewart and others against Harry Turney and others. Judgment for plaintiffs (117 Misc Rep. 398,191 N. Y. Supp. 342) was reversed, and the complaint was dismissed by the Appellate Division of the Supreme Court (203 App. Div. 486,197 N. Y. Supp. 81), and plaintiffs appeal.

Judgment of Appellate Division reversed, and that of Trial Term affirmed.

Hogan, Cardozo, and Crane, JJ., dissenting.Appeal from Supreme Court, Appellate Division, Fourth Department.

Frank S. Coburn and Harry Gleason, both of Auburn, for appellants.

Nelson L. Drummond, of Auburn, for respondents Harry Turney and others.

George B. Becker, of Syracuse, for respondent Robert Bausch.

Carl Sherman, Atty. Gen. (Irving I. Goldsmith, of Saratoga Springs, of counsel), for the State.

ANDREWS, J.

Cayuga Lake is 38 miles long and from 1 to 3 miles wide. Lying east of the Massachusetts pre-emption line it is no part of the state's boundary. Not far away are ten other lakes of considerable size. Some-Canaderaga, Cazenovia, Onondaga, Otisco, and Cross-are but a few miles long and from one-half to two miles wide. Others-Otsego, Owasco and Skaneateles-are larger. One-Oneida-has more water surface than Cayuga. Further east are similar lakes-Lake George, Saratoga Lake, Cranberry, Saranac, Tupper, Schroon, and others.

All these lakes are alike in some respects. At irregualr intervals the water level is raised by spring freshets or heavy rains. Again in time of drought it is lower. So along each is a strip of land sometimes free of water-sometimes covered. On each also are points or beaches of gravel or sand washed up by the waves, lying between the line of inland vegetation and the water, and coversed, if at all, only in times of extreme floods. All are in fact navigable, although in none does the tide ebb and flow. In a few instances title to the land about them is derived from colonial grants. Usually, however, its source is the state. Often, perhaps in most instances, the description of the land granted is of a lot represented on a certain map, and a reference to the map shows the lot running down to the water.

Such was the grant under which the plaintiffs claim. It was of ‘farm lot 86, Lake Cayuga Reservation, which lies on the east side of Cayuga Lake.’ The map of the reservation referred to shows this lot abutting upon the lake. The photographs in evidence give us an idea of the lake shore at this point. Stretching eastward from the water is a beach of gravel and boulders for some 30 feet. It terminates in a rise covered with vegetation. Beyond is said to be a marsh. The gravel beach for much of the year is free from water. When the lake is high, however, it is overflowed. So in extreme high water is the rise to the east, and small boats may pass over it directly to the marsh.

Upon this beach the defendants entered and did the acts which are claimed to be trespasses. Such they were in fact, if title to the beach is vested in plaintiffs' lessor. This is the question for our decision, for we do not think under the findings as made that any purely riparian rights which the plaintiffs may have possessed were interfered with. If, however, their lessor owned the fee to the beach in question, it is not disputed but that an injunction should issue.

[1][2] Our answer to this question depends primarily upon the meaning and effect of the grant from the state. In deeds from an individual owning to the center of a highway or a nontidal stream or a lake or pond of land said to be bounded by such highway, stream, or lake or simply of a tract with reference to a map showing the tract to be so bounded, the grantee takes title to the center of the highway or to the thread of the stream or lake. A presumption founded originally upon the assumed intent of the parties, it has now become a rule of property. If the grantor desires to retain his title to the land in the highway or underneath the water the presumption must be negatived by express words or by such a description as clearly excludes it from the land conveyed. And, at least, ordinarily the same rule applies to grants from the state except as to the Hudson and Mohawk rivers which, because of historical reasons, are governed by special rules.

‘What then was the extent of the premises thus granted by the state? In the terms of sale, and in the terms employed in the patent, a phraseology has been adopted, which as between private individuals, would convey an interest to the middle of the river. And is the doctrine to be tolerated which shall assign one construction to a contract between private citizens, and a different one between an individual and the government? Would not the adoption of such a rule of construction operate as a fraud upon a purchaser who should pay an enhanced price for land adjacent to a stream of water upon the faith of a contract, which, as between private individuals, would have given him valuable hydraulic privileges? It seems to me that but one answer can be given to these questions.’ Varick v. Smith, 9 Paige, 547, 552; Ex parte Jennings, 6 Cow. 518, 16 Am. Dec. 447;Smith v. City of Rochester, 92 N. Y. 463, 44 Am. Rep. 393;Fulton Light, Heat & Power Co. v. State of New York, 200 N. Y. 400, 94 N. E. 199,37 L. R. A. (N. S.) 307;City of Oswego v. Oswego Canal Co., 6 N. Y. 257;Syracuse Solar Salt Co. v. Rome, W. & O. R. Co., 43 App. Div. 203,60 N. Y. Supp. 40; affirmed 168 N. Y. 650, 61 N. E. 1135;Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 838,35 L. Ed. 428; Lord v. Commissioners of Sydney, 12 Moore P. C. 473; Browne v. Kennedy, 5 Har. & J. (Md.) 195, 9 Am. Dec. 503;Berry v. Snyder, 66 Ky. (3 Bush) 266,96 Am. Dec. 219;Lamprey v. State, 52 Minn. 181, 53 N. W. 1139,18 L. R. A. 670, 38 Am. St. Rep. 541;Chandos v. Mack, 77 Wis. 573, 46 N. W. 803,10 L. R. A. 207, 20 Am. St. Rep. 139.

While admitting, however, the general rule, it is said that it should be limited in the case of a lake the size of Cayuga. Based as it is on presumption as to what grantor and grantee intended, this presumption may be rebutted, and the results flowing from its application in the case of this lake would be so remarkable that we should hold the physical situation to be such as to show no such intention could have been present. It cannot, it is argued, be supposed that the grantee of 100 square feet upon the shore has attached to his property a strip of land under water 2 miles in length.

Yet there is much authority to the contrary. Bristow v. Cormican, L. R. 3 A. C. 641, 666; Johnston v. O'Neill, L. R. 1911, A. C. 552, 577. These cases deal with Lough Neagh, 18 miles long and 11 wide. Johnston v. Bloomfield, Irish Rep. 8 C. L. 68. Lough Erne is slightly smaller. Cobb v. Davenport, 32 N. J. Law, 369; Rice v. Ruddiman, 10 Mich, 125. Muskegon Lake is 6 miles by 2 1/2.

In this state the question has never been determined. In City of Geneva v. Henson. 195 N. Y. 447, 88 N. E. 1104; 202 N. Y. 545.95 N. E. 1125, we construed the meaning of deeds between owners describing the boundary as the shore of the lake. In Sweet v. City of Syracuse, 129 N. Y. 316, 27 N. E. 1081,29 N. E. 289, we noticed the contention that the fee of the land beneath Skaneateles Lake was in the state. In Smith v. City of Rochester, 92 N. Y. 463, 44 Am. Rep. 393, Judge Ruger said ‘in passing’ that the doctrine that the bed of fresh water streams where the tide does not ebb and flow belongs in common right to the owners of the soil adjacent is inapplicable to the ‘vast’ fresh water lakes and streams of this country. Just what he meant by ‘vast’ is not stated. Certainly not Hemlock Lake, 7 miles long and half a mile wide, for there we held the general rule applied. In Canal Commissioners v. People, 5 Wend. 423, the question was as to the meaning of a grant from the state bounded by the Mohawk river. A statement of the chancellor that the common-law rule as to such grants does not embrace our large fresh water lakes or inland seas was purely dictum. In Ledyard v. Ten Eyck, 36 Barb. 102, the court held that the title of the abutting owners extended to the center of Cazenovia Lake.

Were it necessary we would hold, however, that with regard to a grant of land on Cayuga Lake an exception should be made to the common-law rule. We are aware of the statement of Judge Bradley in Hardin v. Jordan, 140 U. S. 371, 397, 11 Sup. Ct. 808, 838,35 L. Ed. 428, that the Supreme Court does not think the argument ab inconvenienti is sufficient to justify an abandonment of this rule. That to do so is too much like judicial legislation. This is true where the law is clear. Where it is unsettled the result of a proposed rule may turn the scale. So with reference to such a body of water the ordinary rule is so impractical that we give weight to that consideration. Added also to the doubts that have been expressed by great judges is the fact that the claim has been often asserted by the state to ownership of the land under the water of these large lakes. A number of such grants have been made on Lake George, on Cayuga Lake, on the east shore of Seneca Lake and even on Otsego Lake. And one of the commonest modes of rebutting a presumption as to title is continued acts of ownership by the grantor. Further than that no claim to the contrary seems to be made by the appellants in the case before us.

We will assume, therefore, that the grant of lot 86 did not carry title to the center of Cayuga Lake. Even so, however, the question as to the title of the land in dispute remains unanswered. Precisely what did the state grant and precisely what did it reserve? Where is the precise line of demarkation between the land retained and the land granted?

In passing upon this question we must realize that there is no analogy between this lake, where the water changes its level at uncertain and irregular intervals, and the seacoast, where daily the tide ebbs and...