Somerville v. City of New York

While this action is brought to restrain the city of New York and the commissioner of docks of said city from interfering with the erection and construction of a bulkhead by the plaintiffs on their land under water, it is really an action to determine whether the land under water in Gravesend Bay belongs to the state of New York or to the city of New York as the successor to the town of Gravesend. Gravesend Bay is formed by a neck of land running out on the south known as Coney Island, and bounded on the east and north by Gravesend and New Utrecht. It is by no means a land-locked harbor or bay, but is part of New York Harbor or Bay, curving to the southeast into the mainland, and protected from the ocean on the south by this Coney Island neck. The claim of the town to that part of the bay surrounded on the three sides by the township lands, which include Coney Island, is based entirely upon colonial grants and the acts of user thereunder.

The importance of this question is at once apparent when it is stated that, beginning with 1897, the state of New York has made numerous grants of land under water in Gravesend Bay adjoining

[1] While the city of New York has treated this property as belonging to the persons deriving title from the state, and has assessed and taxed it accordingly, yet this does not create such an estoppel as to prevent the city from now making claim of ownership. McFarlane v. Kerr, 10 Bosw. 249 ; Consolidated Ice Co. v. City of New York, 166 N. Y. 92 -101, 59 N. E. 713 . It is therefore necessary to refer to these ancient patents to ascertain whether the town of Gravesend received by grant the land under water in Gravesend Bay.

[2] The Lovelace patent of July 1, 1670, and the Dongan patent of 1686, upon which the claim of the town is chiefly based, are better understood in the light of previous grants and litigations. Following Gov. Kieft’s patent to Anthony Jansen in 1643, and a grant to Robert Penoyer on November 29, 1645, both covering property to the north and west of that claimed by Gravesend, the same governor on December 16, 1645, granted to Lady Deborah Moody and other patentees land which subsequently became the township of Gravesend. The description therein pertinent to this inquiry is as follows:

“A Certaine quantltie or parcel of land, together with all ye havens, harbours, rivers, Creelces, woodland, marshes and all other appurtenances thereunto belonging, lyeing and being uppon and about ye Weastermost parte of Longe Island, and begining att ye mouth of a Creek adjacent to Coneyne Island and being bounded on ye Westward parte thereof with ye land appertaining to Anthony Johnsonn and Robert Pennoyre and ¿be to runn as farre as the westermost parte of a Ortaine pond in an ould Indian field,” etc.

Passing by the Indian deeds, which are so uncertain in terminology and description as to be of little value, we come to the Nicoll patent to the town of Gravesend in 1668, a confirmation of the Kieft patent; the description pertinent being the same as above quoted. Between the grantee of the adjoining land, Anthony Jansen, and the town of Gravesend, there arose a dispute as to a neck of land lying between Mill creek and Gravesend Bay and forming part of the easterly shore of that bay. This dispute resulted in a petition to the Director General and Council of New Netherlands, who in June, 1656, proceeded to Gravesend to inspect the property and settle boundaries. This was followed in a few days by a judgment of the Director General and Council of the New Netherlands declaring that the patent of Gravesend begins at the kill or creek: next to Coney Island, and not at the middle of the bay, and stretches thence, not along the shore of the bay, but to the point where the land of Anthony Jansen and Robert Penoyer join each other; that is, that the line of Gravesend patent ran along Mill creek, and not along the shore of the bay.

No doubt much of this dispute between Jansen and the town of Gravesend was due to the uncertainty in fixing the starting point

“Begining att ye mouth of a Creek adjacent to Coneyne Island.”

Where this creek was cannot now be determined, and is not shown upon any of the early maps. The map of the town of Gravesend (Defendant’s Exhibit JJ) shows only Mill creek; the map of 1788 (Exhibit II) shows two creeks south of Mill creek; while Plaintiff’s Exhibit 23 shows a different formation altogether. If the grants to the town of Gravesend rested here, it would be quite certain that no judgment could be given awarding the town land under water in Gravesend Bay, as it could not be determined where the starting point or creek adjoining Coney Island was located.

Evidently the judgment above referred .to was not acquiesced in by the town, for Jansen again complained that his rights were being interfered with by the people of Gravesend, and a commission was appointed to examine into the boundary question, which resulted in an order being made directing the survey of Anthony Jansen’s land and the drawing of a line from the mouth of the kill to the easternmost part of Anthony Jansen’s line. This was not along the shore front, but inside and along the creek. Another judgment was given in council, dated August 29, 1656, determining the boundaries as theretofore settled and as above stated. Even then the dispute was not terminated, as in 1669 Erancis Brown, Jansen’s successor in title, and the inhabitants of Gravesend submitted their differences over the boundary to the governor, before whom it was claimed by the township that their western boundary in the grant from Gov. Kieft—

“begin at the mouth of a smale. creeke on Coney Island whence a line being drawne north and by east to Anthony Janssen land it doth fully comprehend within it the meadow ground or valley in dispute.”

■In reply to this claim it was stated:

“Neither doth it fully appeare (if allowed) which is the Mouth of the Creeke upon Coney Island from whence their lines is to be stretched, other Greekes appearing, which may more probably bee given the denomination of Creeks, then that which they so mu.ch urge and if so then their pretensions by that westerly line are cut-t of.”

The decision upon this hearing was rendered on the 23d of August, 1669, to the effect that both parties should enjoy a portion of this neck or meadow in dispute, unless, thinking themselves aggrieved, they sue for redress at the next Court of Assizes. The parties resorted to litigation, where a verdict for Brown, th¿ defendant in the suit, was set aside. Evidently intending to end all further questionings and litigations, the inhabitants of Gravesend and Erancis Brown on the 29th day of April, 1670, entered into an agreement regarding this neck of land, running the town line up through the creek, but giving the inhabitants of the town the right to pass over the neck of land to reach the bay for fishing and fowling purposes.

“All this forementioned quantitye tract and parcell of Land sett forth and bounded as aforesaid together with the Inheritance of all Gouney Island (reserving onely the privilege of erecting Ilutts for fishing and dryeing of netts there upon occasion for all persons who shall undertake that designe for ye publique good) including all the land within a lyne stretching from the westermost parte of the said Island unto the Southernmost parte of Anthony Jansens old Bowerye their East bounds being the Strome Kill which comes to the Marsh or fflye of Mathew Gerretsons land aforementioned, as also the meadow ground and Upland not specified in their former Pattent concerning wch there have been severall disputes and differences betweene the Inhabitants of the said Towne and their neighbour Francis Browne the which in parte were issued both by my Predecessor and my selfe but since fully concluded and determyned betweene them by Articles of Agreement, the which Articles I doe hereby confirme and allowe, With all havens harbours Greeks Quarryes Woodland Plaines meadow ground pastures Marshes waters Lakes Ryvers fishing Hawking hunting and fowling and all other profitts Oomodityes Emoluments and Hereditaments to the said Towns Tract of. Land Island and premisses within the lymitts & bounds aforementioned described belonging or in any wise apperteyning.”

If there was any doubt as to where the creek adjoining Coney Island was, there could be no- doubt as to the westernmost part of Coney Island; neither was there any uncertainty as to the southernmost part of Jansen’s farm and the line stretching between these two definite points. It must have been intended to be a straight line, and not one following the curve of the shore.

[3] A line given in a deed as running from one monument to

The Dongan patent, granted to the town of Gravesend in 1684,. was but a confirmation of the Lovelace patent and all other previous grants, except that it extended the westerly boundary line from the westernmost part of Coney Island to the westernmost part of the land of Anthony Jansen. Although this extended the title of the town to the land under water, it could not affect the-title to the Jansen farm, but did include this land within the township of Gravesend.

[4] It is said that the westernmost part of Coney Island has beem a shifting point, gradually extending to the west into the ocean,, and that a monument or call point cannot move by accretion, although' title to the formed land may. This is true, and the title-of the town pf Gravesend to land under water can only extend from. the end of Coney Island as it was at the time of the Dongan Charter, 1686.

[5] But, while it may be common knowledge that these shores-have shifted very materially within the memory of man, and probably to considerable extent in the last 200 years, yet, in the absence-of all proof upon this subject, I must assume that the present existing physical conditions are as they have always been.

The only exhibits having measurements which would indicate the location of the westerly point of Coney Island are Defendant’s-Exhibit II and Plaintiff’s Exhibit 13a. According to the former, Coney Island point in 1788 was about 5,000 feet from the mouth of Mill creek. According to the latter, Coney Island point in 1882' was about 5,200 feet from the mouth of Coney Island creek, and lot 47, the plaintiff’s parcel, about 2,800 feet therefrom. The evidence in this case does not show any substantial change of location of the westerly point of Coney Island. If Coney Island creek does not correspond with either of the creeks shown on the map of 1788, then there is no reliable evidence in this case to show that the westerly point of Coney Island is to-day located further west than in 1686.

The title of the town of Gravesend to the land under water in Gravesend Bay between the shore .and the line drawn from the New Utrecht line (the westernmost part of the Jansen farm) to the westernmost part of Coney Island has been established by the grants and proceedings, above referred to, and passed to the city of New York under the acts incorporating that territory into the Greater City.

Application having been made in 1886 by the Prospect Park & Coney Island Company to acquire title to certain real estate in the town of Gravesend, commissioners were appointed, and an award made to the town of Gravesend, not only for the upland, but also for the shore to low-water mark. The award was confirmed and paid to the town of Gravesend.

Neptune avenue between West Thirty-Sixth street and West Sixth street, was opened in 1886, pursuant to resolution of the Kings county board of supervisors. Between West Thirty-Sixth street and West Twenty-Third street, Neptune avenue consisted of land below high-water mark in Gravesend Bay, along the northerly shore of Coney Island. In this proceeding the report of the commissioners, filed in the Kings county clerk’s office on May 7, 1886, mentions seven of the lots on each side of the newly opened street as owned by the town of Gravesend.

Twenty-four deeds in evidence show that since 1891 the town has conveyed away to various individuals the land under water on the northerly shore of the bay, and by leases made in 1858 and in 1862 disposed of a portion of the shore to low-water mark.

It will thus be seen that from 1686 until the merger with the city of Brooklyn the town of Gravesend claimed property rights in Gravesend Bay and exercised ownership over portions of it. In 1894, by chapter 449 of the Laws of that year, the town of Graves-end was annexed to the city of Brooklyn, and by chapter 378 of the Laws of 1897, known as the Greater New York Charter, the city of Brooklyn, including the town of Gravesend, was consolidated with the city of New York.

With but one exception, the state of New York made no attempt to exercise any rights in Gravesend Bay until 1897, the year of the consolidation of this territory with the city of New York. When all the town records of Gravesend were turned over to the city of Brooklyn, and a few years subsequently to the Greater City of New York, it can be well imagined that it would take the officials of the Greater City some little time to familiarize themselves with all the various colonial grants and proceedings affecting the vast

There have been a number of these grants made by the state of land under water off the north shore of Coney Island and in Gravesend Bay; but all of them, with one exception, have been made after the merger of the town of Gravesend and the city of' Brooklyn into the city of New York. This one exception consists of an application made to the state for land under water in 1882 by the New York & Coney Island Railroad Company, and which, according to the record, received the approval by telegram of John Y. McKane, supervisor of the town of Gravesend. The property lay at the westerly extremity of Coney Island, and very possibly was considered as extending into New York Bay, instead of into Gravesend Bay, or else as being at a point beyond where the western extremity of Coney Island was at the time of the Dongan Charter. This may be gathered from the fact that the application described the land under water as being in New -York Bay and Gravesend Bay. If in New York Bay, application was rightly made to the state. I do not consider, therefore, that this grant by the state in 1882 is any indication of a waiver upon the part of the town of any claim of ownership in the bay.

[7] Under certain conditions it might very well be that the city of New York or its predecessors in title would be estopped from making claim of ownership after inducing others to invest money in improvements upon representations that no such right existed; but the opening and grading of Neptune avenue, and the placing of the property upon the assessment roll and tax maps, and even acquiescing, without otherwise participating, in the improvements upon the land under water obtained by state grants, does not amount to such an estoppel as to pass the title of the city of New York to the plaintiffs and others.

The land involved in this suit, according to the evidence in this case, belonged to the town of Gravesend under the Lovelace and Dongan patents, passed to the city of New York, and the title has not been divested by waiver, or any acts amounting to an estoppel. Therefore the defendant was justified, through its dock commissioner, in preventing the plaintiffs from bulkheading and filling in upon the same.

Judgment for the defendants, with costs.