Henning v. Bennett — 45 N.Y. St. Rep. 94

Majority

p. 94

Charles W. Henning and Louisa Henning, Resp’ts, v. Seymour Bennett et al., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed April 13, 1892.)

Headnote

Deed—Boundaries—“Wear of creek.”

The deed to plaintiff from the common source of title of the parties described the southwesterly boundary by courses and distances along a creek, and the lot as containing a certain number of acres “less the wear of the creek." The creek formed a bend, leaving a long narrow strip of plaintiff's land extending out into said bend. During a freshet the creek broke through this narrow strip, and thereafter continued in its new ■course. In an action of ejectment, Held, that the use .of the phrase ■“ wear of the creek ” had reference to the gradual alteration of the course ■of the stream, and not to a violent and sudden change of its course, and that plaintiff was entitled to recover.

Appeal from a judgment of the special term entered in the office of the clerk of the county of Brie January 15, 1891, in favor of the plaintiffs and against the defendants.

Spencer Clinton, for app’lts; M L. Parker, for resp’ts.

This is an action of ejectment brought to recover possession of parcels of land situated in the county of Brie. .

The plaintiffs and the defendant, John Hughes, were owners of -adjoining lots of land located partly in the city of Buffalo and an adjoining town. The defendant, Bennett, was a tenant of Hughes and did not answer.

The titles came from the same source, the Ogden Land Company. The plaintiffs’ land was known and distinguished on a map and survey of the village tract so-called, made by Mr. James Sperry, as lot 37. The plaintiff’s lot in the various conveyances was described as containing 24 and 70-100 acres “less the wear ■of the creek.” The southwesterly boundary of the plaintiffs’ lot as laid out upon Sperry’s map was known as Cazenovia creek as ■originally surveyed, and this line is described as beginning at the northwest corner of the lot and thence up the creek a number of courses and distances mentioned, and which appeared upon the map as running along the margin of the stream. The defendant was the owner of lots 270 and 271 upon said map designated as lying upon the opposite side of the creek from the plaintiffs’ land.

The land of the parties is low. Cazenovia creek, in an ordi

p. 95

nary state of water, is sluggish, but is subject to severe floods in times of freshet. The general course of the creek in passing through the lands of the parties ran in a northwesterly direction, but at a point in its course through the lands of the parties it made a sudden detour for a distance of some four hundred feet southerly from its general course, and then returned northerly about the same distance to a point opposite the place of its departure, and from thence flowed along in the general line of .the-stream, leaving a part of the plaintiffs’ lot, a long, narrow strip of land, extending up into this bend of the stream.

In the year 1859, at a time of a great freshet, the waters of the stream broke over and across the neck of this narrow strip mentioned and formed a channel through the neck, and thereafter, instead óf making the detour mentioned, the waters flowed along the general course of the stream across the neck of this strip of land and thereby separated this piece of land from the main body of the plaintiffs’ lot, and hence arose one of the questions presented by this appeal, each of the parties claiming this strip of land. It being the contention of the defendant that it was lost to the plaintiffs by the “wear of the creek; ” the plaintiffs contending that the true meaning of, the phrase “ wear of the creek ” had reference to the gradual and imperceptible changes in the banks of the creek, by which the soil is taken from one side of the-stream and deposited upon the other, and not to a sudden and violent change in the course of the stream by floods.

The plaintiffs’ theory of the case was adopted by the trial court, and we think correctly. We think the use of the phrase “ wear of the creek ” had reference to the gradual alteration of the course of the stream, and not to a violent and sudden change of its course, as was effected in this case. The western boundary of the plaintiffs’ lot being upon the creek and following courses and distances, carried the western line to the center of the creek.

The findings of the trial court were sustained by the evidence. The exceptions of the defendant have been examined, and we find nothing in them justifying a reversal of the judgment The judgment should be affirmed.

Dwight, P. J., and Macomber, J., concur.