[142 N.Y.S.2d 718] Joe Schapiro, Hamilton, for plaintiffs-appellants.
Richard N. Ames, Syracuse, for defendant-respondent.
Before FOSTER, P. J., and BERGAN, COON, HALPERN and IMRIE, JJ.
About 1856 the State of New York constructed DeRuyter Reservoir, located principally in the Town of DeRuyter, Madison County, as a water supply for the canal system. The surveyed and mapped irregular outline of the lands acquired for reservoir purposes is designated as the 'blue line.' Not all the land within the blue line was flooded. On a point of such land extending into the reservoir, Dr. Clarence E. Coon had constructed a summer cottage and in 1919 was occupying and using the cottage and the land with it. At that time his mother, Sarah J. Coon, was and had been the owner of a farm easterly of her son's cottage and extending from the blue line to the highway. On December 1, 1919, she conveyed to Clarence a nine-foot strip of land along the southerly side of her farm
extending from the highway to the reservoir. The deed also contained the following clause: 'Also one acre of land out of the above described premises, or so much thereof as the said party of the second part may require for a cottage lot and garden adjoining the [142 N.Y.S.2d 719] premises now used and occupied by him upon the point extending into the take.'
By deed of the same date, Sarah J. Coon conveyed to Jennie A. DeLamater the entire farm, but with the following clause: 'Excepting and reserving therefrom a strip of land nine feet wide along the south line of the above described premises and extending from the highway to the lake and cottage lot owned by Doctor Clarence E. Coon, together with one acre of land, or so much thereof as the said Doctor Clarence E. Coon may require for a cottage lot and garden adjoining the premises now used and occupied by him upon the point extending into the lake. The premises hereby reserved being the same premises heretofore conveyed by Sarah J. Coon to Clarence E. Coon, by quit claim deed dated December 1st, 1919.'
On July 28, 1923, Clarence E. Coon and wife conveyed to Harold Gluck the said nine-foot strip of land, the deed also including the following clause: 'Also, All the Tract or Parcel of land, known and distinguished as about one (1) acre of land out of the above described 'Myron W. Coon property' bounded and described as follows, viz.: On the south, west and north by property of the State of New York according to the blue line of the DeRuyter Reservoir, and joining on the east the above described 'Myron W. Coon property' of which the premises now conveyed were formerly the extreme southwest corner thereof,' and reciting that the premises so described were the same as conveyed by Sarah J. Coon to Clarence E. Coon by deed of December 1, 1919.
On September 7, 1944, Gluck conveyed to these plaintiffs the premises conveyed to him by Clarence E. Coon, the description of the 'one acre parcel' being identical with the description in the deed from Coon to Gluck. However, the Gluck deed to plaintiffs also purported to convey the cottage property on the lake shore which had not been mentioned in the deed from Coon to Gluck. Defendant is, by mesne conveyances, the owner of the property conveyed in 1919 by Sarah J. Coon to Jennie A. DeLamater.
Plaintiffs brought this action for the determination of their title to the acre parcel described in the deeds from Coon to Gluck and from the latter to them, and for an injunction barring defendant therefrom. The case was tried before Hon. William
F. Santry, Official Referee, upon whose decision judgment was entered dismissing the complaint and adjudging defendant owner of the land.
Plaintiffs' 1953 survey of the acre of land claimed by them presents an unusual picture of a cottage and garden. It is a far cry from the classic rule that, if a deed calls for a quantity of land merely, without a starting point, it is to be assumed that the grantor intended the land to be in the form of a square. The length of the easterly side of the parcel (arrived at by the engineer solely by computation in order to include an [142 N.Y.S.2d 720] acre) is 635 feet. The total north and south distance of three courses along the blue line is 575 feet. 220 feet from its north end the lot narrows to 27 feet. 152 feet farther southerly it widens to 57 feet. Its southerly base along the ...