Trs. of the Town of Brookhaven v. Smith

• Decision Date: 11 March 1890
• Citation: 23 N.E. 1002,118 N.Y. 634
• Parties: TRUSTEES OF THE TOWN OF BROOKHAVEN v. SMITH et al.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 634

23 N.E. 1002

TRUSTEES OF THE TOWN OF BROOKHAVEN

v.SMITH et al.¹

Court of Appeals of New York,

Second Division.

March 11, 1890.

Appeal from supreme court general term, second department.

This action is in the nature of ejectment to recover land under water of a part of Great South bay of Long island. The plaintiff's title rests upon two colonial charters granted to the inhabitants and freeholders of the town of Brookhaven. The first was granted March 7, 1666, by Gov. Nicholls, and conveyed ‘all that tract of land which already hath been, or that hereafter shall be, purchased for and on behalf of the said town, whether from the native Indian proprietors or others, within the bounds and limits hereafter set forth and expressed.’ The said tract extended ‘north to the Sound, and south to the sea or main ocean,’ and included the greater part of the large body of water lying on the south side of Long island, and known as the ‘Great South Bay.’ The second charter was granted by Gov. Dongan, December 27, 1686, and was confirmatory of the Nicholls charter. It granted the same tract of land, together with ‘the marshes, swamps, rivers, waters, lakes, ponds, creeks, and harbors,’ etc.; ‘saving to his most sacred majesty aforesaid, his heirs and successors, all the tracts and necks of land that lieth to the south, within the limits and bounds aforesaid, that remain unpurchased of the native Indians.’ The defendant Smith made his title through two Indian deeds dated, respectively, April 8, 1692, and April 9, 1693, made to William Smith, defendant's ancestor, the first of which covered the premises in dispute; and a deed or patent from Benjamin Fletcher, captain general and governor in chief of the province of New York, to William Smith, dated October 9, 1693. He further introduced in evidence, in support of his title, the following extracts from the public records of the town: ‘Town and William Smith. At a townmeeting upon the 28th day of March, 1693, Col. William Smith, of Brookhaven, did then and there acquaint the town, as he did before, that, with the governor's license, he had purchased, and intended to purchase, divers tracts of land unpurchased of the Indian natives by the town, and within the limits of their patent, and reserved to their majesties by their patent; and did require to know whether the town laid any claim to the same or not, and whether they were content that he, the said Smith, should purchase and peaceably enjoy the same. Voted and agreed that the above-said Col. Smith may purchase and peaceably enjoy as aforesaid.’‘At a meeting of the trustees of the freeholders and commonalty of the town of Brook-haven upon the 27th day of November, 1693, at the same time Col. William Smith did cause his patent to be read before the trustees above said, and each and every of them did declare that they had nothing to object against the limits, bounds, powers, privileges within the said patent contained.’‘Upon the first day of May, 1694, being election day, Col. William Smith caused his patent to be publicly read before the freeholders of the town. It is voted and agreed by the trustees and freeholders above said that they do, on the town's behalf, agree and forever acquiesce in the limits and bounds of the said patent, and do assent and consent to the powers, privileges, and immunities and exemptions therein contained, so far as the same may anyways concern the township, saving to the several particular inhabitants such shares of meadow at South Bay by them unsold, as the same was laid out to them within the limits and bounds aforesaid.’ On September 21, 1693, the said William Smith and the trustees of the town entered into an agreement in writing which recited the purchase by Smith, with the consent of the town, of certain tracts of land within the limits of the town's patent, and which had never been purchased by the town from the Indians, and then fixed and defined the north boundary line between Smith's land and the lands of the town. The defendant Egbert F. Smith succeeded to Col. William Smith's title. The other defendants are lessees of Egbert Smith. The trial court directed a verdict in favor of the defendant, to which the plaintiff excepted. Judgment thereon was affirmed by the general term, and defendant again appealed. Other facts are stated in the opinion.

James C. Carter and Nicoll Floyd, for appellant.

Wilmot M. Smith, for respondent.

BROWN, J., ( after stating the facts as above.)

This court decided in Trustees v. Strong, 60 N. Y. 56, and again in Hand v. Newton, 92 N. Y. 89, that under the town's charters it had title to the land under the waters of the navigable bays and harbors within the limits defined in those instruments. These cases, however, afford no aid to the solution of the question now presented, for the reason that in the first action the patent under which defendant claims was a part of the town's title to the land then in dispute, and the second involved the title to land under water on the north side of the island, entirely outside of the limits of defendant's grant. The learned counsel for the appellant claims that the patent to William Smith did not in terms convey any part of the bay. This proposition cannot be sustained. The grant recites the issuing of a warrant to the surveyor general of the province to survey and lay out several necks and tracts of land, beach, bay, etc., situate on the south side on the island formerly called ‘Long Island,’ etc.; that said surveyor general had surveyed and laid out ‘said necks and tracts of land, * * * bay, and islands within said bay, bounded westward from the main sea or ocean,’ etc. It then grants to Col. William Smith and his heirs the ‘afore-recited necks and tracts of land within the respective bounds before mentioned, together with the waters, rivers, lakes, creeks, harbors, bays, islands, fishing, fouling, etc., and all rights, * * * privileges, * * * and appurtenances whatsoever, to the aforesaid necks and tracts of land, bay, beach, and islands within said bay,’ etc.

It will thus be seen that the bay is granted by express terms. The bay is not described as appurtenant to the necks and tracts of land, but the bay is conveyed, with all the benefits and privileges appertaining thereto. Almost identical language is used in the Dongan charter to the town, and this court held it sufficient to convey the title to land under water, (Trustees v. Strong, supra,) and that decision must control the construction of the grant to Smith. The land in dispute being, therefore, within the grant to William Smith, I think the case presents all the elements of an equitable estoppel against the town. It is not necessary, as is claimed in one of the briefs submitted to us by the appellant, to constitute an equitable estoppel, that there should be a false representation or concealment of material facts. Nor is it essential that the party sought to be estopped should design to mislead. If his act was voluntary, and calculated to mislead, and actually has misled, another acting in good faith, that is enough. Bank v. Hazard, 30 N. Y. 226;Continental Nat. Bank v. National Bank, 50 N. Y. 575. Nor is it essential that the declaration of the town as to its title to the land described in Smith's patent should have preceded the date or delivery of the deed. Continental Nat. Bank v. National Bank, supra; Bank v. Keene, 53 Me. 103. If those declarations affected the conduct of Smith with reference to the land purchased, so that it would be unjust or injurious now to those who have succeeded him to permit the plaintiff to set up it title contrary to the...