City of Geneva v. Henson

These proceedings were instituted under the provisions of the Code of Civil Procedure for the condemnation of certain premises for a public park and the parties seem to have assumed that the dispute which has ai-isen upon the pleadings as to the title to the premises sought to be condemned was one of the issues to be tried under the provisions of section 3367 of the Code before the matter was sent to commissioners for the purpose of appraising damages. Said section provides that “ The court shall try any issue raised by the petition and answer at such time and place as it may direct, or it may order the same to be referred to a- referee to hear and determine, and upon such trial the court or referee shall file a decision in writing,” &c. In this case the issues were sent to a referee.

In our opinion, this section does not contemplate or provide for the preliminary trial of such a dispute of title as was here presented. Section 3360 provides that the petition shall set forth certain things, amongst them the public use fo'r

Section 3369, relating to the judgment to be entered after the preliminary trial, prescribes a judgment which is entirely appropriate to the determination of these underlying fundamental questions, but which would not be at all appropriate to a determination of an issue of ownership of the premises, such as has arisen in this proceeding. Said section provides, if the decision is “in favor of the defendant, the petition shall be dismissed * * .* If the decision is in favor of the plaintiff * * * judgment shall be entered, adjudging that the condemnation of the real property described is necessary for the public use, and that the plaintiff is entitled to take and hold the property for the public use specified, upon making compensation therefor,” etc. If upon the trial of a dispute between plaintiff and the defendant as to the ownership of the property the issue .should be decided in favor of the plaintiff he would have no occasion to invoke the provisions which have just been quoted; and on the other hand if the dispute should be determined in favor of the defendant there is no reason why the proceeding should be dismissed. There would then be necessity for an appraisal and condemnation.

Furthermore, we doubt the right of a petitioner under any such circumstances as have been developed here to make a condemnation proceeding at any stage the means of forcing trial before a referee or commissioners of a contested title with defendant. If the proceeding was instituted on the assumption and basis that the defendant has certain property rights to be condemned, the petitioner, having taken advantage of this assumption as a basis for his proceeding, would not be allowed therein to contest such rights. (Village of Olean v. Steyner, 135 N. Y. 341 .)

On the other hand, such petitioner ought not to be allowed, by alleging in a defendant a lesser estate or title than he really possessed, to compel such owner to set up his true title and interest and thus contest in the proceeding questions of which he otherwise might be entitled to have a trial by jury.

. This question was somewhat considered and involved in Matter of City of Yonkers ( 117 N. Y. 564 ). In that case the petitioner instituted condemnation proceedings to acquire an easement through property of one Lawrence for the purpose of constructing a sewer. The commissioners awarded him certain damages as the value of the easement to be taken in his land. The Special Term, on the opposition of owners of property to be assessed for the expenses incurred, refused to confirm the report on the ground that the city was already the owner of the easement which the proceedings on its part were taken to condemn. This view was affirmed by the General Term, and the question whether the city was in fact the owner of such easement was fully litigated. When the case reached this court, Judge Beckham, writing for it,

In Matter of William and Anthony Streets (19 Wend„ 678), which was a proceeding relative to the laying out, etc., of streets in the city of Hew York, it was said by Judge Bronson (p. 688): “ It is not, I think, the duty of the commissioners to pass upon conflicting claims of title, where they depend either upon strongly controverted facts, or difficult questions of law. Such matters should be settled by courts and juries.”

But if the view is correct that it was not the purpose or meaning of section 3367 that the issue of title framed by the petition and answer should be sent to a referee for determination as was done, we do not think that it follows that the proceedings were void or the referee without jurisdiction to pass on the controversy thus submitted to him.

As we have already pointed out, various issues had been raised by the pleadings which at that point in the proceedings were properly the subject of such a reference as was made. In addition, this issue of title between appellant and respondent had been raised. The proceeding was pending in the Supreme Court with its general jurisdiction and in our judgment the parties had the right if they so desired to submit the latter issue in connection with the other ones to the determination of the referee, instead of seeking the decision of that question at some other time or within some other tri

In Chicago, S. F. & C. Ry. Co. v. Ward ( 128 Ill. 349 ) the petitioner in condemnation proceedings in a preliminary manner tried out with an alleged owner the question of title to a piece of property and then on appeal argued that the court had no power thus to try a question of title. It was held in effect that the appellant was estopped from raising this question on appeal; that the parties had a right to waive a jury and to submit their case or any part of it to the court for decision. Of course the case at bar is even stronger than the one cited, for here no objection of lack of jurisdiction has been raised at any point.

Thus we are brought to the consideration of the other question, whether the decision of the referee that the respondent was the owner of the premises in question was vitiated by any such error that we should reverse the judgment founded thereon. The intelligent presentation and consideration of this question necessarily involves a further and somewhat tedious review of details.

The immediate basis of the appellant’s claim that it is the owner of said premises subject to some possible easements in the respondent is the act of 1905 already referred to whereby the state granted its right in said lands to the appellant. But of course the validity and effectiveness of this grant depends on the right and title which the state itself had at that time. The contention of the appellant that the state did own these premises in whole or part is made to rest on the argument that they were originally part of the bed of a large navigable inland lake the title to which bed rested in the state, and that under the principles of law applicable to grants of such lands or territory as between the state and individuals, conveyances which are relied upon by the respondent

The character of Seneca lake as a large navigable body of. water has already been referred to and is all that is claimed for it by the appellant.

Prior to 1786 the state of Hew York claimed to be the owner of territory including that lake. In that year, as is well known, disputes which had arisen between it and the state of Massachusetts growing out of conflicting grants and claims thereunder were submitted to the adjustment of commissioners. In the adjustment of the dispute Massachusetts ceded or granted to the state of Hew York all claim, right and title to the government, sovereignty and jurisdiction of certain lands and territory and the state of Hew York ceded and granted to the state of Massachusetts “ the estate, right, title and property (the right and title of government, sovereignty and jurisdiction excepted) which the state of Hew York hath of, in and to 230,400 acres to be located, * - and also of, in and to all the lands and territories within the following limits and bounds,” etc., and which territory and land concededly embraced that here in dispute.

It is urged in answer to the appellant’s contention, that this cession or grant executed in settlement of a dispute was not subject to the principles of those decisions cited as holding that as between the state and an individual a conveyance by the former will not be deemed to include the bed of navigable waters unless expressly so stated, and • further, that even if subject to such rigorous rules of construction, a conveyance which by express and definite metes and bounds includes the bed of navigable waters as did the one from Hew York to Massachusetts is sufficient to convey such bed. (Trustees of Brookhaven v. Strong, 60 N. Y. 56 , 71; Rogers v. Jones, 1 Wend. 237 .) It is also urged that the construction claimed by respondent to the effect that the grant to Massachusetts did cover and include the bed of Seneca lake is expressly sustained by Smith v. City of Rochester ( 92 N. Y. 463 , 476). relating to the bed of Hemlock lake, a smaller body

We do not feel that we are compelled or even permitted to consider to any extent these conflicting arguments which thus center around this grant. We think that certain findings of fact made by the referee and unanimously affirmed by the Appellate Division are conclusive upon us in this case in favor of the respondent’s position that the state has become divested of title.

The referee has found the execution cf a chain of conveyances extending from the state of Massachusetts to respondent and that the grantor in each intended to and by descriptions which we agree were sufficient for that purpose down to conveyances made in 1845, to which further reference will be made, did convey to his respective grantee the premises in question. He has then further found in effect in the case of each conveyance that the grantee at the time of the conveyance took possession of the premises thus conveyed; also that since a date prior to 1800 the premises in question have been “ continuously in possession of the said several grantors since the grants by Williamson aforesaid, each of the said grantees having taken possession of the same at the time of the conveyance to him, having occupied the same under claim of his said title, each of said grantees claiming to own as well the uplands thus conveyed (as) the land under water opposite the premises thus conveyed to and occupied by him eastwardly to the New Preemption Line, and each of the said grantees upon taking possession of the said property proceeded to improve the same by constructing docks and wharves thereon, filling out with earth and structures into the said lake and reclaiming the said land under water from time to time to a greater or less extent, each succeeding owner adding to the said lands thus reclaimed, filled out and extended, and each in turn putting structures thereon adding to the constructions already there, so that prior to 1845 sufficient land was reclaimed opposite the uplands of the premises described in the petition herein to to make a building site * * * the east line of which

He has also found the conveyance by the state of Hew York to Massachusetts by the treaty of cession of a large tract of land, including within its boundaries the lands in question and “ That by said conveyances it was the intention of the State of Hew York to convey and it did convey to the State of Massachusetts both uplands and lands under the water within the described boundaries, including lands under the water of Seneca Lake from the western shores thereof eastwardly to the Hew Preemption Line so called (and which included these premises); ” also, “ That since 1786 the State of Hew York has not been the owner of nor in possession of any of the lands or premises described in the petition herein; has never acquired the same, taken possession of or made any use of the same as owner. That said lands described in the petition herein are no part of the canal lauds of the State of Hew York and never were.”

Whatever might be our original and independent opinion as to the effectiveness of the cession from Hew York to Massachusetts as a conveyance of the bed of Seneca lake we see no escape under the findings from the decision that before its attempted grant to the appellant the "state had become divested of any proprietary ownership of the premises in question, this, of course, not affecting such jurisdiction and sovereignty as it exercised over the waters of the lake for the benefit of the public. (See Langdon v. Mayor, etc., of N. Y., 93 N. Y. 129 , 144.)

The chain of conveyances through which the respondent claims title and ownership has already been referred to. It appears by these that in the earliest conveyances the state of Massachusetts, from the territory ceded to it, conveyed premises by definite boundaries beyond doubt including in terms those in question to individual grantees, who in turn passed the title along. After a while the parties to various conveyances adopted a form of description which, so far as applicable to the premises in question, bounded those conveyed “ by Seneca Lake,” or described them as extending “to Seneca Lake,” the referee finding in effect that it was the intention by each of the conveyances in which either of these forms of expression was used, to convey to the grantee all of the lands under water opposite the uplands of the premises in question, so far as the same were covered by tlie original cession of the same from Hew York to Massachusetts; also that the various grantees entered upon and took possession of said premises, improved them, extended them into the lake, etc., and we shall assume simply for the purposes of this discussion that under such forms of conveyance the final grantees, prior to 1845, had acquired title to all of the premises here involved.

Thereafter, however, a different and third form of conveyance was adopted, which, as we think, resulted in a break in the title to part of the premises now claimed by respondent. By these conveyances, prior to 1855, there was lodged in one Johnson, as his only paper title to part of the premises in question, one in which the lands conveyed were described on that particular course by lines running “to Seneca Lake, and thence southerly on the shore of said lake, * * * together with all docks, buildings and fixtures, rights and privileges which now belong or appertain to the said parties of the first part or to the premises above conveyed in said lake adjoining

The exact location of the shore and of the dock and of the iron pin referred to in the descriptions just quoted is not made clear b) the findings, but we understand it to be undisputed that said point and shore were considerably inside of the present shore line of the premises sought to be condemned as represented or made by the new towpath.

Taking up first the specific description of lands conveyed by the boundaries as contained in the Godfrey and Fellows and subsequent conveyances, the law is clear that even in the case of a small non-navigable river or body of water boundary lines running to a fixed point on the shore thereof and thence along said shore do not carry title to the middle of the stream

In CMld v. Starr ( 4 Hill, 369 ) a conveyance of land on the banks of Genesee river employed a description running “ eastwardly to the Genesee River; thence northwardly along the shore of said River to Buffalo Street,” and it was held that no part of the bed of the river passed under the conveyance and that the grantee took only to low-water mark. Chancellor Walworth wrote : “ Running to a monument standing on the bank, and from thence running by the river or along the river, etc., does not restrict the grant to the bank of the stream; for the monuments in such cases are only referred to as giving the directions of the lines to the river, and not as restricting the boundary on the river. If the grantor, however, after giving the line to the river, bounds his land by the bank of the river, or describes the line as running along the bank of the river, or bounds it upon the margin of the river, he shows that he does not consider the whole alveus of the stream a mere mathematical line, so as to carry his grant to the middle of the river. And it appears to me equally clear that the grant is restricted where it is bounded by the shore of the rivei', as in the present case.” (p. 375.)

In Starr v. Child ( 5 Denio, 599 ) the deed under consideration covered premises on the banks of Genesee river and then “ bounded the grantee along the shore of the river,” and it was held that this excluded the bed of the river and limited the boundary to low-water mark. This doctrine has been affirmed by, amongst other cases, those of Halsey v. McCormick ( 13 N. Y. 296 ); Gouverneur v. National Ice Co. ( 134 N. Y. 355 ).

But there remains to be considered how much the grant defined by the specific boundaries of the shore was enlarged by the general clause covering docks, buildings, fixtures and rights and privileges in the adjoining lake “belonging or appertaining” to the grantor or the specifically described premises.

Without attempting on the evidence as now presented to

It has been held that a grant of a wharf included the adjoining flat lands. (Ashby v. Eastern R. R. Co., 5 Metc. 368 ; Doane v. Broad Street Assn., 6 Mass. 332 .) But those cases in the surrounding facts and in the terms of description in our opinion are distinguishable from the present one. The principle is familiar that land does not pass as an appurtenance to land. The entire clause which we are considering taken in connection with the conveyance of the uplands by definite shore boundaries may perhaps be construed as sufficient to include not only any docks and buildings extending beyond such boundaries, but also the fee of the land on which they stood, and also as conveying any rights or easements in the lake and over the bed thereof belonging to the grantor incident or necessary to the enjoyment of such uplands. The grant should not be construed as transferring the fee to the bed of the lake beyond this. (Ammidown v. Granite Bank, 90 Mass. 285 ; Voorhees v. Burchard, 55 N. Y. 98 ; Ogden v. Jennings, 62 N. Y. 526 .)

It is true that the referee found in the case of each conveyance including those whose boundaries have just been considered “ that each of said grantors * * * intended to convey and did convey the uplands described and also all the land under the water of Seneca Lake adjoining as is included between the north and south lines of the parcel described projected out eastward]/ to the new preemption line.” If the terms of description in the conveyances referred to were ambiguous or inconsistent, this finding might remedy the apparent defect in respondent’s title. But it is well settled that, when the terms of a deed or other instrument in writing-are perfectly plain and unambiguous, their meaning and effect cannot be changed or overturned by the unexpressed intention

The referee has also made findings of various facts tending to establish title by adverse possession to some of the premises consisting of land made by filling in the lake from time to time. It is possible that the respondent, on another trial, may be able to establish such title to made land lying outside of the boundaries of the Godfrey and Fellows deed. The present findings are not sufficient for that purpose for various reasons. They are based on the theory that respondent had acquired the paper title thereto by conveyances which we have held did not accomplish that purpose, and they make it quite apparent that some of the filling in has been made and the actual occupation commenced within less than twenty years.

These views lead us to the conclusion that the judgment appealed from was erroneous in so far as it determined that the respondent was the owner and in possession of all of the premises of which condemnation is sought.

We think the judgment appealed from was erroneous in another respect. Even if it had correctly determined that respondent was the owner of the premises, we see no reason why the condemnation proceedings should be dismissed. We judge that the parties had a preliminary trial of this very issue of title in order that the proceedings before the commissioners might be simplified, and there is no reason why the appellant should not have been allowed to continue the proceeding for the purpose of acquiring all the respondent’s title, whether it was the ownership in fee or not, even if it should have been found necessary to amend some of the allegations of the petition.

The judgment appealed from should be reversed, without costs, and the matter be remitted to the Supreme Court for such further proceedings as may be proper in accordance with this opinion.

Cullen, Ch. J., Gray, Edward T. Bartlett, Werner, Willard Bartlett and Chase, JJ., concur.

Judgment reversed, etc.