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Johnson v. State

Supreme Court of New York, Appellate Division

May 8, 1912

CHARLES A. JOHNSON, as Executor, etc., of JANE B. JOHNSON, Deceased, Appellant,
v.
THE STATE OF NEW YORK, Respondent.

Page 362

APPEAL by the claimant, Charles A. Johnson, as executor, etc., from a judgment of the Court of Claims of the State of New York, entered in the office of the clerk of said court on the 7th day of June, 1909.

COUNSEL

Northrup R. Holmes, for the appellant.

Wilber W. Chambers, Deputy Attorney-General, and Thomas Carmody, Attorney-General, for the respondent.

LYON, J.:

This is an appeal by the claimant from a judgment of the Court of Claims awarding appellant $569.65 on account of the permanent appropriation of six and fifty-six one-hundredths acres in the town of Whitehall, Washington county, N.Y. , for the purposes of the barge canal. The appellant is dissatisfied with the award for the reasons that it allows him no damages for the appropriation of alleged riparian rights in Wood creek, bordering the east and north sides of the six and fifty-six one-hundredths acre piece, and allows him nothing for damages which he claims will necessarily be sustained by reason of

Page 363

the overflowing of about four acres of land westerly of the lands so appropriated.

It appears by the record that the farm of the appellant's testatrix is a portion of the tract of about 25,000 acres, through which ran Wood creek, granted in 1765 to Philip Skeene and others by crown patent, known as the 'Skeeneborough Patent.' Among other exceptions contained in said patent were the following: 'Excepting the said Wood Creek, which is reserved as a common highway for the benefit of the public,' and 'also except Wood Creek as aforesaid for a common and public highway.' Wood creek seems to have been used from the earliest times as a route of travel between the Hudson river and Lake Champlain. In the Revolutionary war Skeene sided with the crown and by an act of the Legislature of the State of New York, passed in 1779, he was convicted and attainted of treason, and all his estate, both personal and real, was declared forfeited to and vested in the people of the State. An act was passed providing for the appointment of commissioners with authority to sell and convey 'all and singular the estate, right, title and interest, whether in possession, reversion or remainder, of, in or to the said premises which in consequence of any conviction or attainder is become forfeited, attached or vested in or to the people of the said State.' (Laws of 1779, chap. 25.)

It appears that pursuant to this act the commissioner of forfeiture conveyed certain lands, including this farm, describing the boundary on Wood creek, as follows: 'To Wood Creek, then down said Creek as it winds and turns to the place of beginning.' It further appears that thereafter down to 1867, when title was acquired by the husband of claimant's testatrix, the boundary line on Wood creek was stated as running at low-water mark, and thence along the bank of Wood creek at low-water mark. The boundary stated in said deed of 1867, as well as in the deeds of the husband of claimant's testatrix and herself to Almon Bartholomew, and of him to her, executed in 1876, so far as is necessary to be considered at this time, is as follows: 'Beginning on the west side of Wood Creek at low-water mark at the southeast corner of Miles Johnson's farm; ' thence on certain courses and distances 'to

Page 364

the waters of Wood Creek, from thence along the west bank of Wood Creek to place of beginning, containing one hundred and seventy acres of land be the same more or less.'

The boundary line of the land of claimant's testatrix having been located in this conveyance to her along the bank of the stream, the parties to the conveyance will be held to have intended to limit the land conveyed to that within such boundary line and not to include land within the bed of the stream. ( Halsey v. McCormick, 13 N.Y. 296; Matter of Brookfield, 176 id. 138, 145.)

There is no merit in the contention of claimant that the grantee under the conveyance of the commissioner of forfeiture acquired title to the center of Wood creek by reason of the grant being 'to Wood Creek, then down ...


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