SHINNECOCK HILLS & PECONIC BAY REALTY CO.
ALDRICH ET AL.
Appeal from Trial Term, Suffolk County.
Action by the Shinnecock Hills & Peconic Bay Realty Company against Frank E. Aldrich and another. From a judgment for defendants, and an order denying a motion for a new trial, plaintiff appeals. Affirmed.
[116 N.Y.S. 534] J. Edward Swanstrom (Conrad S. Keyes, on the brief), for appellant.
Timothy M. Griffing (Thomas Young, on the brief), for respondents.
Argued before HIRSCHBERG, P. J., and GAYNOR, BURR, RICH, and MILLER, JJ.
This action was brought to enjoin a trespass, but it was tried upon the stipulation of the parties as an action at law for damages. At the close of the evidence both sides moved for the direction of a verdict, and the defendant's motion was granted. The dispute is over the title of a strip of salt meadow and beach on the southerly side of Cold Spring Harbor in the town of Southampton, Suffolk county. The plaintiff is the owner of the uplands adjoining the strip in dispute. The plaintiff derives title from a deed made March 21, 1861, by the " trustees of the proprietors of the common and undivided lands and marshes or meadows, in the town of Southampton," to Lewis Scott and others. It is conceded that the description in that deed includes the premises in dispute, but the deed contained an exception in the following words:
" And excepting from this conveyance all such meadows and marshes within the aforesaid boundaries as have heretofore been allotted to and are now owned by particular individuals in severalty or otherwise and also further excepting from this conveyance all land covered with water where the tide ebbs and flows within said bounds. It being the intention of this conveyance and it shall be so construed as to convey said track of land subject to all legal highways and roads as aforesaid and in no sense to convey the meadows or marshes heretofore allotted to or the land covered with water where the tide ebbs and flows within said bounds according to the exception hereinbefore contained."
The plaintiff also claims under a quitclaim deed of November 17, 1881, by the " trustees of the proprietors of the undivided lands of the town of Southampton, county of Suffolk, and state of New York," conveying all the right, title, and interest of the grantors to the undivided lands of a described portion of what was known as " The Town Purchase," which refers to an Indian deed made December 13, 1640. The defendants claim that the premises in dispute were a part of what was known as " The Seaponack Division," which was allotted in 1654; and, while they are unable to trace their title to any of the allottees, they show a paper title, to wit, a warranty deed from the heirs of Sylvanus Raynor, deceased, to Franklin Jagger, and the will of the latter devising his residuary estate to them.
The plaintiff claims that the exception in the Scott deed is void for indefiniteness. It is true that an exception in a deed must be taken most favorably to the grantee. Jackson v. Hudson, 3 Johns. 375, 3 Am. Dec. 500; Blackman v. Striker, 142 N.Y. 555, 37 N.E. 484.If the language used is susceptible of more than one meaning, the grantee is entitled to the one most favorable to him; and, if it is so vague as to identify nothing, nothing will be excepted. But deeds have to be construed the same as other contracts. The court, so far as it can, will put itself in the position of the parties and ascertain their intention from the words used, their context, and the surrounding circumstances. Blackman v. Striker, supra; Clark v. Devoe, 124 N.Y. 120, 26 N.E. 275,21 Am.St.Rep. 652; [116 N.Y.S. 535]Thayer v. Finton, 108 N.Y. 394, 15 N.E. 615; Myers v. Bell Telephone Co., 83 A.D. 623, 82 N.Y.Supp. 83.The contention of the plaintiff is that the exception is as indefinite as though for the phrase, " such meadowlands within the aforesaid boundaries as have heretofore been allotted and are now owned by particular individuals," were substituted the words, " excepting some of the meadowlands within the aforesaid premises" ; but those two expressions have only to be put in juxtaposition to perceive the fallacy of that argument. The meadows and marshes, theretofore allotted, so far as anything appearing on the face of the instrument, were capable of being identified; and the question is, What did the parties mean by the expression used? The plaintiff's contention that the exception was merely put in as a saving clause to guard against possibilities is plainly refuted by the instrument. The exception is emphasized by the statement of the intention of the parties; and the expression " excepting as aforesaid" is subsequently used at least four times.
The records of the town of Southampton contain the entry of what a witness who had made a special study of the old records of the town said purported to be an allotment of the " Seaponack Division" made in February, 1654. They also contain entries purporting to have been made during the seventeenth century, subsequent to 1654, of sales and leases by individual owners of salt meadows in the Seaponack division, some of them described as being on Cold Spring Pond. Said witness testified that the Seaponack division included the meadows in dispute, and that there was no other division of the town to which the name could refer. That witness had been one of the trustees of the proprietors and the town clerk of the town for several years succeeding 1860. He had made a special study of, and had compiled, deciphered, and published, the old records of the town. Those records required explanation from one having special knowledge of the subject, and the witness qualified as an expert; indeed, his competence was not questioned. The record evidence then tends to show that there was an allotment of the division of salt meadows, including those in dispute, to individual owners whose ownership continued to be unquestioned after the Andross and Dongan patents. One of the trustees of the proprietors testified that in 1861, consequently about the time of the Scott deed, an arrangement was made between the trustees who owned the uplands and the owners of the meadows, whereby the latter were to have certain rights in the uplands in return for allowing the cattle and sheep pastured upon the hills to go upon the meadows. At that time there was a fence between the uplands and the meadow-how long it had existed did not appear-but there is not a well-defined ditch where it existed. The three other sides of the meadow in dispute are marked by natural boundaries. There is no pretense that the proprietors made any claim to the ownership of this meadow at the time of the Scott deed. On the contrary, the evidence is undisputed that, as far back as any one can remember, the claim of ownership of the defendants and their predecessors has been open, notorious, and unquestioned, and that they or their lessees have annually mowed the meadow and carried away the hay.
[116 N.Y.S. 536] There seems to be no room to doubt from the evidence above outlined that the parties to the Scott deed understood that the premises in dispute were a part of the meadows theretofore allotted to and then owned by individuals. However, the language of the exception requires that both allotment to and ownership by individuals be shown. The defendants are unable to trace a paper title to one of the allottees, and, of course, cannot show, what possibly may be presumed, that the allottees took possession. The so-called Farrett patent of 1641 and the Indian deed of 1640 did not convey title; but titles to land in the town of Southampton have their origin in the Andrews patent of 1676 confirmed by the Dongan patent of 1686. Under those grants, the title to the uplands and meadows vested in the corporate body in trust for the original proprietors. Town of Southampton v. Mecox Bay Oyster Co., 116 N.Y. 1, 22 N.E. 387.However, both the Andross and the Dongan patents purport to be confirmatory of existing rights, and the Andross patent contained the recital:
" Whereas there is a certaine Towne in the East Riding of Yorkshire upon Long Island commonly called and knowne by the name of South Hampton," etc.
That charter was evidently granted to secure from the town recognition of the authority of the Duke of York. It appears that an order was made by the general court of assizes under Governor Nicolls in 1670, requiring the towns of Southampton, Southold, and Oyster Bay to give their reasons why they had delayed having their grants or patents renewed or confirmed. The rights of the original settlers were recognized and confirmed by the Andross and Dongan charters, and any divisions of the common lands made prior thereto do not appear therafter to have been questioned. However, in view of the fact that under the Andross and Dongan charters the legal title vested in the body corporate and not in the equitable owners, it would seem that partition could not be made as among tenants in common, but that a transfer by the holder of the legal title was necessary to vest title in the allottees (see Sanger v. Merritt, 120 N.Y. 109, 24 N.E. 386); and it may well be doubted whether land could be transferred by parol after the Andross charter. The English statute of frauds (St. 29 Car. II, c. 3) took effect June 24, 1677, and it seems that there was then in force in the colony of New York a similar statute. The Duke of York's laws, which were said to have been promulgated at Hempstead on March 1, 1665, and copies transmitted to the several ridings constituting the shire of Yorkshire, provided:
" That henceforth no Sale or alienation of Houses and Lands within this Government shall be holden good in Law except the same be done by Deed in writing under hand and Seal and delivered and possession given upon part in the name of the whole by the Seller or his Attorney so authorized under hand and ...