Mott v. Clayton

The plaintiff agreed to sell, and the defendant to purchase, certain real estate in the city of Brooklyn. The defendant declined to complete the purchase, on the ground that the plaintiff’s title was defective. The question of the validity of the plaintiff’s title is the only one submitted to us for determination.

The northern front of the plot contracted to be sold falls within the limits of the old Brooklyn & Jamaica Turnpike Road. The

But the character of this road was not the same as that of a modern highway. It was an old Dutch road. Under the Dutch law, the fee of the highway, not the mere easement, was in the public. The original patent or charter from the Dutch authorities of the town of Brooklyn is lost. After the English acquired possession of the province, two patents were granted to the town,—one October 18, 1667, by Richard Nicolls, governor general; and one May 13, 1686, by Thomas Dongan, lieutenant governor. These patents granted to the patentees, “for and on behalf of themselves and their associates, the freeholders and inhabitants of the town of Brooklyn, their heirs, successors, and assigns, forever,” all the lands within the limits of the town. On these facts, it was held in Dun-ham v. Williams, supra, that the title to the bed of the highway was not in 'the adjacent owners, but, under its patents, vested in the town of Brooklyn and the city, its successor. At an early date the road was acquired by a corporation for a turnpike. Subsequently, it was changed into a plank road. The court of appeals, in the case cited, refrained from deciding whether the turnpike company had acquired an easement or the fee of the road. This question is not material in the present case, for the plaintiff has acquired, by conveyances from the city of Brooklyn and the Brooklyn & Ja

Counsel for the defendant cites Mortimer v. Railroad Co. (Sup.) 6 N. Y. Supp. 898 , to show that the Dutch colonial government did not own the fee of the old highways existing at the time of their possession of the province. The opinion delivered by Judge Truax in that case goes to the extent stated. The burden of the argument of the learned judge is to establish the proposition that the-Dutch never had any valid claim to the province of the New Netherlands. In that conclusion Judge Freedman concurred, and further-stated that “neither the Dutch nor Roman law ever prevailed in the-state of New York de jure, and that the common law must be-deemed to be the original source of all our law.” The proposition contended for by Judge Truax is not decisive of the question involved, for the rights of the Dutch in the province were finally determined by the terms of the capitulation. 2 Col. Hist. N. Y. p. 250. The effect of the capitulation was considered in Dunham v. Williams, and it was there held that, by virtue of the capitulation, the title to the bed of the road remained in the government till the-confirmatory grant to the town. The question discussed by the learned judge in Mortimer v. Railroad Co. was not absolutely necessary to the decision of the case. However that may be, in the-respects cited, the opinion is directly opposed to the decision in Dunham v. Williams. Nor does the authority of Dunham v. Williams stand unsupported by decisions in other cases.

In Canal Appraisers v. People, 17 Wend. 572 , Senator Beardsley-held that, the original grant of the Manor of Rensselaerwick having been obtained from the Dutch government, its construction was. to be controlled by the civil law, and that the grant did not convey the bed of the Mohawk river. See, also, Commissioners v. Kemp-shall, 26 Wend. 404 .

In Smith v. Rochester, 92 N. Y. 463 , in discussing the right of the-people to the beds of rivers, Chief Judge Huger said, in referring to the cases cited:

“We think this and similar cases might properly have been decided, l'or-reasons peculiar to the Mohawk and Hudson rivers, upon the grounds stated in Commissioners v. Kempshall by Senator Verplanck, and by the chancellor and Senator Beardsley in Canal Appraisers v. People. The titles granted", to the original settlers in the Hudson and Mohawk valleys, as construed by the rules of the civil law prevailing in the Netherlands, from whose government they were derived, did not convey to their riparian owners the banks'- or beds of navigable streams. Upon the surrender of this territory, the guaranty assured by the English authorities to its inhabitants of the peaceable enjoyment of their possessions simply confirmed the right already possessed; and the beds of navigable streams, never having been conveyed, became, by virtue of the right of eminent domain, vested in the English government as ungranted lands; and the state of New York, as a consequence of the Revolution, succeeded to the rights of the mother country."

This is equally true of the beds of highways, except that in thia case the crown, before the Revolution, granted its title in such beds-to the town.

There should be judgment for the plaintiff on the submitted case, that the defendant complete his purchase. All concur.