Oakes v. De Lancey — 54 N.Y. St. Rep. 87

Majority

p. 87

Thomas F. Oakes, Appl’t, v. Edward F. De Lancey, Resp’t.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

Deed—Descbiption.

The description of certain land in a colonial patent included all “woods, beaches, marshes, pastures, etc.,” which was extended by a crown grant so as to include bays and harbors, and included the shore. The deed to defendant described it as “along the shore.” Held, that the word “shore” included lands washed by the sea between high and low water mark.

Appeal from judgment in favor of defendant, entered on the findings and decision of the court at special term.

Action to recover damages for breach of contract in the sale of lands by defendant to plaintiff, in that defendant did not have and did not convey by his deed a good and sufficient title to a portion of the premises described in said deed,' and for which plaintiff had paid.

Artemas H. Holmes, for app’lt; Martin J. Keogh, for resp’t.

On the 4th of June, 1890, the defendant conveyed to the plaintiff a piece of land said to contain about twenty-two and a half acres. The land was situated on Long Island Sound, and nearly four acres of the parcel was between high and low water mark. The land was sold by the acre at public auction and was sold at a large price by the acre. The plaintiff objected to the land under water being included in the deed, on the ground that the description did not include it This claim was made the basis of an action, and it was decided that the land under water was included in the description. Oakes v. DeLancey 133 N. Y., 227 ; 44 St. Rep., 686 .

This action is based upon the allegation that the defendant has no title to the lands between high and low water mark. The evidence shows that the premises are part of what is known as the East or Mamaroneclc Heck. This with two other necks of land adjoining was conveyed to John Hichbell in 1662, by the Holland provincial government, and by the English Colonial in 1688. The English patent includes all “ woods, beaches, marches, pastures, creeks, waters, lakes, fishing, hunting and fowling.”

This description is carried into the Manor of Searsdale by a grant of the English Sovereign in 1701 to Caleb Heathcoate, who had bought the land, and the description is in this grant widened so as to include bays and harbors as well as beaches, and included the shore. This title is unbroken down to the conveyance to the

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defendant in 1871. It is true that the deed to the defendant does not in terms convey the land under water or even use the words of the Colonial grants, but it is admitted by both parties, and is proven by the evidence, to be the same premises as are described in the patents. The plaintiff’s claim is mainly, if not entirely, based upon the description of the deeds from the immediate grantor to the defendant, one Shepherd. This description is “along the shore.” If the word “shore” in the patents included the strip between high and low water mark, the description in the defendant’s deed will go to low water mark to fill the requirements of a deed which reserved nothing. The court of appeals has decided that the word slrore includes lands washed by the sea and between high and low water mark. Trustees of East Hampton v. Kirk, 68 N. Y., 459 .

A shore must always have a definite limit on the seaboard.

The judgment should be affirmed, with costs.

Pratt, J., concuz-s; Dykman, J., not sitting.