The opinion of the court was delivered by: CONGER
This is a proceeding brought by the United States of America to condemn certain lands within the Town of Highlands, County of Orange, State of New York.
The petition alleges that pursuant to and under the authority of Congress the Secretary of War found and determined that the lands mentioned and described in the petition herein are among the lands to be acquired for the public use, that is to say, as additional land in the vicinity and for the use by the United States Military Academy in connection with the present Military Reservation at West Point, New York.
This controversy before me involves the second parcel sought to be acquired in this proceeding, Long Pond, a small body of water consisting of about 39 acres. In its petition the United States alleges that the owners of Long Pond are unknown. The title to the uplands surrounding Long Pond is not part of this controversy. It is the pond itself and the land under the water thereof.
The lands surrounding the pond are owned by Pavek, Gibney and Motak.
The defendants Gibney, Motak and Pavek have each answered the petition; each claiming ownership to the lands under the water of said pond adjacent to and adjoining the uplands owned by each of them. The People of the State of New York have appeared and answered herein and claim title in fee simple absolute to all the lands under water of said pond except a small portion at the southwest end thereof.
The Town of Highlands has also answered and claims a perpetual easement to the road running along the westerly side of the pond.
It was stipulated by all the parties interested that the above issues be tried before me without a jury.
At the outset let me state that the plaintiff herein, the United States, claims no right, title or interest in and to Long Pond or the land under the water thereof, except that it does claim to have some right to control the overflow of the waters thereof.
The first issue to be decided is between Gibney, Motak and Pavek on the one hand and the State of New York on the other.
The state claims to hold the title in fee to the land under water in Long Pond in its sovereign capacity. It claims that it has held such title since on or about July 9, 1776, as successor to the Crown of England.
The individual defendants claim title to the lands under water by conveyance to them and to their predecessors in title. They also claim adverse possession against the state and also invoke against the state the 40-year statute of limitations contained in Section 31 of the Civil Practice Act of the State of New York.
The first problem presented resolves itself into a question as to whether or not the patents and deeds offered in evidence by the upland owners conveyed the lands under water adjacent to the uplands.
Surrounding Long pond there were five tracts of land. Four of these were granted by the Colonial Government. there is no record of any Colonial or State grant to the fifth parcel. These parcels, at least that portion thereof around the pond, are owned by the individual defendants.
No question is raised by the state as to the title of this upland, but the state contends that this in no way relates to the title of the land under water.
Before taking up each title in detail, it might be well to first set forth the law which governs generally the situation here presented.
A great deal has been written on this subject. One of the outstanding decisions is Gouverneur et al. v. National Ice Co., 134 N.Y. 355, 31 N.E. 865, 868, 18 L.R.A. 695, 30 Am.St.Rep. 669.We find there a situation generally similar to the one at bar. The controversy in that case was over the ownership of a small pond (45 acres) in Putnam County. The only difference being is that there the controversy was between a private person and a private corporation. The general rule of interpretation of grants and deeds is not changed because the state is one of the interested parties. The court laid down the general rule that natural ponds and small lakes are private property; that they pass by grant of land in which they are included; that they are also presumed, if nothing appears to the contrary, to belong to the riparian owners. Then followed an extended discussion of the authorities in other states. The court then stated: "Whatever may be the doctrine applicable to small inland lakes and ponds elsewhere, the presumption in this state is that the land under their waters belongs to the proprietors of the adjoining lands. Smith v. City of Rochester, 92 N.Y. 463 [44 Am.Rep. 393]. Such is the commonlaw rule in the states where the grantees of land so situated and described by boundary, in grants on or along such waters, take to the center."
We find this question again discussed by the Court of Appeals in White v. Knickerbocker Ice Co., 254 N.Y. 152, 172 N.E. 452, 453, 74 A.L.R. 591. The controversy arose over the ownership of land under water of a lake one mile long and three-quarters of a mile wide (Rockland Lake). The following excerpts from that case state the general rule better than any words of mine: "Where a grant is so framed as to touch the water of a river, and the parties do not expressly except the river, one-half of the bed of the stream is included by construction of law. The value, such as they have, of small non-navigable lakes and ponds, as a general rule, is mainly in their relation to adjacent lands. If the parties mean to exclude the land under water, they should do so by express exception; the restriction ought to be framed in very plain and express words. Gouverneur v. National Ice Co., supra; Seneca Nation of Indians v. Knight, 23 N.Y. 498, page 500. The rule which has been continuously followed is best expressed by Cowen, J., in Luce v. Carley, 24 Wend. 451, 35 Am.Dec. 637: 'Where the grant is so framed as to touch the water of the river, and the parties do not expressly except the river, if it be above tide, one-half the bed of the stream is included by construction of law. If the parties mean to exclude it, they should do so by express exception. Without adhering rigidly to such a construction, water gores would be multiplied by thousands along our island (inland) streams small and great, the intention of parties would be continually violated, and litigation become interminable.'"
The rule reiterated in all the cases is that a grant of land adjacent to a small lake carries title to the center thereof, unless the presumption is negatived by express words or by such a description as clearly excludes it from the land conveyed. See Fulton Light, Heat & Power Co. v. State of New York, 200 N.Y. 400, 94 N.E. 199, 37 L.R.A., N.S., 307; Stewart v. Turney, 237 N.Y. 117, 142 N.E. 437, 31 A.L.R. 960.
Having thus expressed the general rule, I shall now take up each individual tract involved in this proceeding, subjecting each to the rule above stated.
The source of the Gibney title is a patent by King George III to William Smith and Edward Wilkins, dated April 15, 1768. The course contained in the grant in so far as it refers to Long Pond is as follows: "Beginning at a maple tree marked with three notches and with the letters E W N C, standing at the Northeast corner of a pond of water, known by the name of The Long Pond" and this tract runs from the said maple tree "to the aforesaid pond called The Long Pond, then along the east end of the said pond as it runs to the place where this tract first began."
Down through the years the conveyances have substantially followed the language of the original patent, to and including the Gibneys.
The words of the first course of the description of the property "Beginning at a maple tree * * * standing at the Northeast corner of a pond of water" are not words of restriction or limitation as the monument could not conveniently be placed in the water of the pond. Such a line indicates the place of the line or its intersection with the water and not the end of it. Fulton Light, Heat & Power Co. v. State of New York, supra; Luce v. Carley, 24 Wend. 451, 35 Am.Dec. 637.
The other pertinent words in the description "to the aforesaid pond" and "along the east end of the said pond as it runs to the place where the tract first began" are not such a restriction so as to exclude lands under water from the adjacent lands. Such a description carries title to the center of the pond. White v. Knicker-bocker Ice Co., supra; Gouverneur v. National Ice Co., supra.
The source of the Motak title was a patent from King George III to Thomas Moore and John Osburn, dated March 14, 1775.
The courses of the description of the property in the patent in so far as they are pertinent to Long Pond are as follows: "Beginning at a maple tree standing at the northeast end of a pond of water commonly called and known by the name of The Long Pond, which maple tree is marked with the letters and figures N C S M and is a corner of a tract of 1385 acres of land granted in the year 1768 to William Smith and Edward Wilkins * * * to the aforesaid Long Pond, thence along the said pond to the place where this tract first began."
The language of the patent clearly indicates an intention not to restrict the grant to uplands alone but to carry also the land under water adjacent thereto. The same reasoning which applies to the construction of the patent in the Gibney tract applies here and the same cases are authority for my holding.
In its brief the Government contends, however, that Motak may not claim any title to the lands under water because in the next conveyance after the original grant the description differs from that contained in the patent with reference to the courses along the pond (Sands to Kronkhyte, March 25, 1809). The first course in the second conveyance begins at a maple tree standing on the north bank of the pond. The last course again differs in that it runs along the north shore.
I do not regard this change of description as being of particular importance; the second course still runs "to the pond". It should be noted also that in the following deed (Kronkhyte to Kronkhyte, May 31, 1809) the first course is exactly similar to the first course in the description in the patent. The discrepancy would seem to be but a matter of loose conveyancing.
There is a hiatus in the chain of title. There is no record of any conveyance out of the patentees. The first deed of record is the deed from Sands to Kronkhyte, supra. The State of New York may not take advantage of either the change of description or the hiatus in the record. The State of New York was divested of any right or title by the patent itself, which in my opinion granted not only the uplands but the land under water adjacent thereto. The United States Government in its brief urges that the land under water, not having been conveyed by the original patentees, is now owned by the State of New York by escheat. The State, however, makes no such claim. In order to prove title by escheat, there must be some proof that the original patentees died without heirs. No such claim has been advanced or testimony offered.
If the title to the land under water by reason of the above set of circumstances was never conveyed by the original patentees, I am satisfied that the present owners (Motak) have acquired title ...