WILLIAM S. BAUMAN, Appellant,
DORA WAGNER and Others, Respondents.
APPEAL by the plaintiff, William S. Bauman, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 2d day of August, 1910, upon the decision of the court rendered after a trial at the Monroe Special Term.
Everett O. Gibbs, for the appellant
D. W. Forsyth, for the respondents.
William J. Bauman and wife by deed dated December 16, 1872, conveyed to their son, William S., thirty acres of land on
lot 6 in the town of Irondequoit, in the county of Monroe, extending east to Irondequoit bay. The deed was delivered at once, but was not recorded until May twenty-second following. It included an acre of land immediately south of the thirty acres and upon which acre the grantee had erected a dwelling house the year preceding. East of the tract of land conveyed and in Irondequoit bay was an island, then known as Cobb's island, wholly covered with forest trees and containing about two acres. Between the island and a strip of land designated as the peninsula, and which was a rocky, uneven promontory, was a marsh, and there was also a marsh between the peninsula and the dry land to the west. Irondequoit bay is a navigable arm or bayou of Lake Ontario extending southerly from the lake about four miles, and of the width of about three-quarters of a mile.
By deed dated and delivered on May 6, 1873, the said William Bauman and wife conveyed said Cobb's island to Frank Schneider, and the same thereafter was known as Schneider's island, and will be so styled. In the conveyance explaining the description and after designating the island by name, the following appears: 'Which Island is surrounded in the north, east and south by the waters of said Irondequoit Bay and bounded on the west by a swamp which separates said Island from the other part of said Lot No. Six (6) owned by said parties of the first part. And said party of second part is to have the use of said swamp which separates the Island and swamp hereby conveyed from the swamp and land owned by parties of the first part forever for ingress and egress to and from said Island. Said Island containing 2 acres more or less, and it being understood that one-half of the swamp between said Cobb Island and the land owned by said Bowman [Bauman] is intended to be conveyed hereby.'
The thirty-acre tract back for some distance from the bay was covered with timber, was hilly and broken, and cut by ravines. Bay Village road on the west, and extending northerly through it, and sometimes called Bauman's road, was the only highway touching the thirty acres or any of the lands on lot 6. George Schneider, a son of the grantee, a witness on behalf of the defendant, testified that the Baumans had sort of
a wood road jutting off from the highway in a southeasterly direction, winding down steep pitches to a creek, over which was a little bridge, and he thus continued his description: 'Then the driveway stopped there, and there was a pathway from there over to the peninsula, and a pathway along the east side of the peninsula to a point opposite the island, and I went from that point on the peninsula over to the island upon a bridge that my father built. That bridge was there only a few years after the island was bought.'
When Schneider purchased the island there was no highway in that vicinity extending to the bay. There was no wharf or landing place on the shores of the island, and it was not cultivated or occupied. Shortly after Schneider acquired the island he cut down the timber, erected a cottage, and afterwards, a hotel thereon, built a dock, and in 1878 began to run a small steamer on the bay, carrying passengers for hire. He kept up this business for twenty-one years, stopping at several docks along the west shore of the bay, and which were publicly and generally used for the reception and discharge of passengers. There was no interference with the use of these docks, and they are still accessible and available to any one going to and from the island, as the trial court has found.
In 1876 the Bay Village road was extended as a highway to the lake, its easterly terminus within sixty rods from the island. The public road known as the Float Bridge road was also extended to the bay, and the trial court has found that these highways are each 'within a reasonable distance of said island,' and can be reached by boat therefrom, and 'without crossing private property,' and the proof well supports these findings.
After Schneider erected the hotel and wharf he did not use the pathway or the wood road across the thirty-acre tract to the highway. Until 1907 there was no claim of a right of way either pursuant to the terms of the deed or by reason of any necessity to gain access to the Bay Village road by ...