Van Deventer v. Lott

• Decision Date: 24 July 1909
• Citation: 172 F. 574
• Parties: VAN DEVENTER v. LOTT et al.
• Court: U.S. District Court — Eastern District of New York

172 F. 574

VAN DEVENTER v. LOTT et al.

United States Circuit Court, E.D. New York.

July 24, 1909

Everett J. Esselstyn (Frederic R. Kellogg, of counsel), for complainant.

Hubbard & Rushmore (George C. Case, of counsel), for defendants John R. Lott and Sarah Lott.

Henry M. Gescheidt, for defendants Byron Whitcomb and others.

CHATFIELD District Judge.

The present action involves a determination of the title to certain plots of land running across the strip of sand on the southern portion of Long Island, generally called 'Rockaway Point.' These plots of land are bounded laterally by the extension of the side lines of certain parcels upon the north side of what is known as Rockaway Inlet. The land to the north of this inlet is a large island called for 200 years 'Barn Island,' and since that time 'Barren Island,' in the southeastern portion of the old town of Flatlands, in the county of Kings, and state of New York. The county line between Kings county and Queens county was first located by the state along the middle line of the channel between Barren Island and Rockaway Beach or Point as it existed in 1802-04. It is undisputed that this channel, which is the only outlet of Jamaica Bay to the ocean, has not remained in the position in which it was at the time the county lines were created by the state, and that the middle line of the inlet at the present time, instead of leading straight out to the ocean, substantially in a north and south direction, runs approximately west-southwest some three miles, before it turns to the south, and passes the point of sandy beach or dunes which stretches to the east, and joins what was Rockaway Point when the county lines were laid out.

Various state maps, as well as officers of the state and of the respective counties, have assumed that the county line has shifted and followed the movements of this channel; and the parties to this action now seem to take as settled the present location of the county boundary, treating all of this sand breach east of the present inlet as in the county of Queens, in which, for the purposes of assessment and for the recording of deeds, the state authorities locate the land under discussion. This fortunately makes it unnecessary to bring in the state of New York or any state officer as a party to this action, and the questions of adverse possession, of taxation, and the recording of titles in general are matters of such recent date with regard to the plots in question that the county lines determine nothing with respect to the present ownership of the land which might have been retained in the county of Kings, if the county boundary had been a line fixed by monuments, instead of by the middle of a navigable channel. Indeed, under the defendants' theory of the case, the properties claimed by them would seem to have been bodily shifted from one county to the other, not by the movement of the land itself, but by the displacement and shifting of the county boundary from time to time.

It is unnecessary to follow out the chains of title other than to say that the complainant is grantee under a full covenant and warranty deed made by the devisees of Collis P. Huntington on the 11th day of February, 1901, recorded in the county of Queens on the 27th day of September, 1902, in Liber 1287 of Deeds, p. 14, and that the complainant's title is traced through a deed from the city of New York, various partition and foreclosure suits, grants from the state of New York, and conveyances from private individuals to one of the patents granted by authority of the King of England by Governor Dongan of the Colony of New York in the year 1685, and back of that even by a title from the Indians. It appears in the course of the complainant's chain that in the year 1812 the United States was given, under the authority of the state of New York, the right to locate a fort upon what came to be known as Block House Point, and that during the War of 1812 certain militia erected a blockhouse, which has long since disappeared. The United States never took possession of the land in question, nor attempted to exert any dominion over it, except to grant one lease in 1872 (page 1418 of record) and, so far as the testimony presented in this case shows obtained no title to any of the tract until about the year 1854, when a life saving station or boathouse previously on Barren Island was moved across the inlet and located upon the beach of Rockaway Point, within some 100 yards of the high-water mark, at the southeast corner of the point as it then existed. An examination of the charts, which will be referred to later, and an inspection of the land, show that dunes, with bushes and shrubs, reaching a height of 20 to 30 feet, cover the precise part of the beach upon which the blockhouse stood, and the tract running therefrom to the southeast, including the original site of the life saving station.

A considerable depression through the greater part of the beach as it exists at present, and having a generally southeast and northwest course, marks the strand at the period indicated when the life saving station was located near the point, and according to the testimony, as well as from indications at the present time, fixes the first locality as to which the peculiar questions of this case arise. In general, the title of the complainant, so far as it covers land existent through the entire period, is limited at the western end by these dunes, upon which it has been said the blockhouse and life saving station were placed. From the point of the old shore southwest of the life saving station to the present extreme western point of the beach, a distance of some three or four miles, the beach from ocean to inlet is claimed under the doctrine of accretion, as having been added to the land, both upland and beach immediately adjoining upon the east, and being in all other directions surrounded by water.

The defendants' title, likewise starting with grants from the Indians, had to do with properties stated to be on Barren Island, or Barn Island, and specifically located in said town of Flatlands. The chain of title comes down through various deeds and wills to the present owners or claimants, and their title to the upland, or to the portions of Barren Island claimed by them, is satisfactorily established, and their possession of all portions of the tracts claimed by them north of the present location of the inlet would seem to be beyond dispute. But the extension of the defendants' lines across the inlet (these side lines running some 8 1/2 degrees east of south, according to the maps filed, from the survey made July, 1900, by Samuel K. McElroy, civil engineer, and put in evidence as Defendants' Exhibits 1 and 2) cross as well the present stretch of Rockaway Beach, or the lands added thereto by the westward movement of the inlet. The portions of the beach thus included within these lines so extended are a part of the particular portion of the so-called lands of Rockaway Beach, set apart and assigned to the grantors or predecessors of the complainant in a partition suit involving substantially all of the added or connected beach land, as well as some of the upland east of the old line near the life saving station.

The case involves the decision of a difficult question of fact, in that it must be determined whether the movement of the inlet was such that all of the land added to Rockaway Point or connected with it from time to time toward the west has been raised up out of the ocean and established above high-water mark by what is known as the gradual process of accretion; or whether by a sudden and plainly discernible shifting of the inlet, or by a number of such shiftings, the entire channel, including and carrying with it the county boundary, has broken through what previously was a part of the county of Kings. If the latter method be proved, the old bed of the inlet has filled up by accretion, both to the southwest, from the upland or beach of the complainant, and to the east or northeast from the bars or land to the south of what is now Barren Island.

The defendants' claim is dependent upon their being able to prove, not only that there have been sudden and violent shiftings of position by the inlet, so called, but also that certain bars and land included within the grants in their chain of title to Barren Island have occupied, with more or less accretion in all directions, some parts of the beach now joined to the old Rockaway Point, and that throughout the successive changes in the position of the inlet there has always existed some portion of these lands within the boundaries of their original grants, to which lands could attach by accretion in the same way, and by the same natural processes, through which the intervening spaces were filled and the properties in question joined to the upland near the life saving station and the blockhouse point.

A third possibility suggests itself, which must be considered in the light of the various attempts at possession on the part of the defendants and their grantors and tenants. This third possibility would of itself be sufficient to defeat the title of the complainant, and would leave him limited by lines of the original grants, and by what could properly be held as accretion thereto, for the burden of proof is upon the complainant in the present action, and he must establish, not only that the defendants have not title, but that his title is proven affirmatively. This third position would result from a finding that the lands in question were formed outside of high-water mark, and therefore the property of the state of New York (Mulry v. Norton, 100 N.Y. 424, 3 N.E 581, 53 Am.Rep. 206; Shively v. Bowlby, 152 U.S. 1, 14 Sup.Ct. 548, 38 L.Ed. 331), but...