author: Bradley, J.

text:
    Mary M. Gouverneur et al., Resp’ts, v. The National Ice Co., App’lt.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    Peed—Description—Lands bordering on small lakes or ponds.
    A deed of land bordering on a non-navigable lake or pond commencing at a known monument on the shore of the pond and running thence “along said pond to the outlet thereof,” unless in some manner qualified or restricted, has the effect to convey the land to the center of the pond.
    Appeal from order of the general term of the supreme court in the second judicial department, reversing judgment entered on decision of the court on trial without jury, and granting a nevi. trial. '
    The action is ejectment, and was brought in January, 1883, to recover the possession of certain premises, consisting of water and land under water of a natural pond or lake known as Hinckley pond or Groton lake, situated in the town of Patterson, county of Putnam, and is about 2,500 feet in length and 800 feet in width in the broadest place, and covers forty-five acres. Two streams constituting its surface inlets enter in at the southerly end. The outlet at the north end is known as Muddy Brook.
    The pond is within a tract of land granted June 17, 1697, to Adolph Phillipse by William III, King of England, by letters patent which embraced the present Putnam county.
    The plaintiffs by descent and as successors in interest of the patentee, who died intestate seized of the premises in 1749, have title to them, unless it has in the meantime been alienated or otherwise defeated.
    The plaintiffs’ ancestors by five deeds of dates, January 13, 1796, February 6, 1813, March 9, 1813, May 1,1828, and September 30, 1845, conveyed all the lands surrounding and adjacent to the pond to grantees therein mentioned.
    The several deeds respectively described parcels of lands and mentioned the quantities embraced within the boundaries; and the following are the only portions of the descriptions given by the said conveyances in the order of their dates essential to the questions here for consideration.
    In the first: “Thence north sixteen degrees west, forty-three chains and seventy-nine links to Muddy Brook, and down the same as it runs until it bears due west,” etc. This first mentioned course intersected the pond some distance southerly from what now appears to be the outlet.
    In the second: “ Thence south eighty-one degrees east, five chains * * * to Hinckley pond near a large rock; thence northerly along said pond to the outlet thereof, that is, to Muddy Brook.”
    In the third: “ Thence running north nineteen degrees west, fourteen chains forty links * * * to a birch sapling marked, ■on the east side of Hinckley pond; thence south thirteen degrees west, three chains twenty-six links along said pond; thence south ■seven degrees fifteen minutes west, seven chains sixty links along do; thence south thirty minutes west, two chains along do'; thence .south five degrees east, two chains along said pond; thence south fourteen degrees fifteen minutes east, two chains ninety-five links .along do to a-bunch of basswood sprouts marked at Abiol Crosby’s •corner.”
    Another description in the same deed: “ Thence nine degrees thirty minutes east, ten chains eighty-eight links along Abiol Crosby to a bunch of basswood sprouts marked, then due west one chain along Hinckley pond ; thence south sixty-five degrees, west, four chains along do; thence south thirty-seven degrees west, five chains eighty-five links along do; thence north seventy-one degrees thirty minutes west, six chains eighty-eight links along do to the brook leading in said pond.”
    In the fourth: “ Beginning near the south side of a large rock on the west side of Hinckley pond * * * thence running south sixteen degrees west, five chains sixteen links along said pond.”
    In the fifth: Beginning at a stake in a swamp south of Hinckley pond; thence several courses and distances, then north sixteen degrees east, six chains forty-eight links “ to a maple marked by said pond; then north sixty degrees west, four chains ninety links along said pond to the beginning.”
    About twelve hundred feet in length of the northerly portion of the premises in question lies along the two courses of the lines so given in the first two deeds, and the balance about thirteen hundred feet in length, of the southerly portion of them is between the lin'fes so described as along it in the last three deeds. Through those five deeds and sundry mesne conveyances the defendant took title to uplands adjacent to and surrounding the whole of the pond, except a portion at the northeasterly corner, formerly owned by one William Merritt, and such rights as the New York & Harlem B. R Co. acquired to a strip along its west shore.
    In 1850 and 1851 William Merritt, who then had title to a portion of the upland, conveyed to the predecessors of the defendant all his interest in the premises in question. And in 1850 or 1851 the defendant’s predecessors filled in a portion of the pond, built an ice house thereon and provided some other appliances for gathering ice. After the construction of the New York & Harlem R R. and in the winter of 1850 and 1851 the defendant’s predecessors commenced gathering ice there and shipping it to market on the railroad. This was done every year thereafter, unless the winter of 1853-4 may be excepted. And the defendant acquired its interest there in 1867, then made preparations for the business of gathering ice from the pond and storing it for shipment and market, and erected buildings and provided means and facilities for such business, which it has since then carried on quite extensively there. The trial court found that the plaintiffs had no title to and were not entitled to the possession of the premises, and refused to find that the lines as defined in the deeds of the parcels of land around and adjacent to the lake excluded the premises in question from the conveyances, and directed judgment for the defendant

      Calvin Frost, for app’lt; Eugene Frayer, for resp’ts.

       Reversing 33 St. Rep., 1.

   Bradley, J.

—The defendant alleges several defenses; and the one founded upon the denial of the plaintiffs’ title is that their ancestors conveyed the premises in question by deeds to certain grantees many years before this action was commenced. If this proposition of fact is sustained the other alleged defenses will require no consideration.

The premises, which are the subject of controversy, consist of# a body of water formerly known as Hinckley Pond and later as* Croton Lake and land under the water situated in the town of Patterson, County of Putnam. This is a natural pond or lake about one hundred and fifty-one rods in length, and in the broadest place about forty-eight rods in width, and covers about forty-five acres. It has two inlets at the southerly end and an outlet ■known as Muddy Brook at the north end; and the court found that there was a slight and very sluggish current running through the pond from south to north.

The plaintiffs do not claim title to any of the land adjacent to the lake, as that was all conveyed by their ancestors by five deeds made in the years 1796, 1813, 1828 and 1845. Natural ponds and small lakes are private property. They pass by grant of land in which they are included. They are also presumed, if nothing appears to the contrary, to belong to the riparian owners. And there would seem to be no substantial reason for the application of a different rule in the legal construction of grants of land bounded •on them than is applied to conveyances bounding premises on fresh water streams. Our attention has been called to no case in this state where the question has arisen and essentially been the subject of determination.

In Canal Commissioners v. People, 5 Wendell, 447, and in Canal Appraisers v. People, 17 id., 597, the chancellor said: “The principle itself does not appear sufficiently broad to embrace our large fresh water lakes or inland seas, which are wholly unprovided for by the common law of England,” and that a different rule must probably prevail as to them “ and also as to those lakes and streams which form the natural boundaries between us and a foreign nation.”

A like remark was made in Smith v. City of Rochester, 92 N. Y., 463, by Judge Ruger, who added: “We have arrived at the conclusion that all rights of property to the soil under the waters of Hemlock lake were acquired by and belong to its riparian owners.” Hemlock lake is about seven miles long and a half mile in width. And the fact that the title to the land in western New York within which is Hemlock lake was not derived from this state was not deemed and is not important upon the question of its proprietorship, because it came within the class of small lakes the bed of which is the subject of private ownership.

In Ledyard v. Ten, Eyck, 36 Barb., 102, it was held that land conveyed by deed bounding it on Cazenovia lake, which was five miles long and three-fourths of a mile in width, extended to its centre. But the conclusion reached in that case may have been supported upon another ground which was there considered.

In Wheeler v. Spinola, 54 N. Y., 377, the question was considered in its application to a pond, the size of which-does not appear ; and it was there said that “ a boundary upon it does not carry title to its center, but only to low water mark. Such is the rule as to boundaries upon natural ponds and lakes," and in support of the proposition are there cited Canal Commissioners v. People, 5 Wend., 423; Champlain, etc., R. R. Co. v. Valentine, 19 Barb., 484; Waterman v. Johnson, 13 Pick., 261; Bradley v. Rice, 13 Maine, 198.

In the Commissioners' case the relator claimed certain rights in the Mohawk river, which he alleged were impaired by the plaintiffs in error; and the railroad company case had relation to alleged rights in Lake Champlain, which is a large navigable lake about 130 miles in length, and varying from, about fifteen miles to less in width. This is a large navigable lake, and the Mohawk has been held to be a public river. Those two cases seem to have no necessary application to the present one. Reference further on is made to the other two cited cases.

The controversy in Wheeler v. Spinola had relation only to a strip of land between high and low water mark on the south side of Flax pond, upon which strip the defendant was charged with. ■committing trespass in cutting thatch; and as the title- under which the defendant claimed was by deed bounding the land upon the pond, it was held to extend to low water mark. This covered the locus in quo, and was as far as the court was called upon to go for the purposes of the defense. While the views of the learned judge upon whose opinion that case was decided are entitied to much weight, the question now under consideration was not there necessarily considered or determined. And so far as we are advised, it remains in this state an open one for consideration. There is a conflict of authority upon the subject by adjudication in some of the other states. And in holding that by conveyances bounding lands on natural ponds the grantees take title only to low water mark, Massachusetts seems to have taken the lead. Waterman v. Johnson, 13 Pick., 261. That case was decided in 1832. There was a reason for such rule in that state in the fact that by a Colonial law or ordinance adopted in 1641, and amended in 1647, great ponds, which were defined as those containing more than ten acres, were • declared public property, and after this ordinance was so amended in 1647 such ponds have not been subject to private ownership. West Roxbury v. Stoddard, 7 Allen, 158; Hittinger v. Eames, 121 Mass., 539. And after referring to Ledyard v. Ten Eyck, 36 Barb., 102, and to what was there held in relation to the proprietorship of Cazenovia lake, Mr. Justice Hoar, in the West Roxbury case, added that the state of New York had no statute similar in its provisions to the Massachusetts ordinance before mentioned.

In Bradley v. Rice, 13 Me., 198; 29 Am. Dec., 501, decided in 1836, the question was not discusssed, but the court said that no case had been cited or found where the rule of construction applicable to boundaries on streams had been extended to a pond or lake, and cited Waterman v. Johnson to the contrary. It is unnecessary to refer to the relation to the colony and state of Massachusetts of the territory constituting the state of Maine up to the time of its admission as a state into the Union, as such previous relation may be entitled to no consideration from the time it became a state.

In the State v. Gilmanton, 9 N. H., 461, the question was whether the town of Gilmanton was chargeable with repairs of a bridge over what may be termed the outlet of Winnipiseogee lake, and that was said to be dependent on the fact whether the place crossed by the bridge was a river or bay. It was the boundary of the town; and it was accordingly held that if a river, the line of the town would go to the centre, and only to the water’s edge if a bay. This question of fact was reserved for trial The cases cited in support of the proposition were Ex parte Jennings, 6 Cow., 518, and Canal Commissioners v. People, 5 Wend., 423. And the court there added that such seems to have been the legislative construction in that state of grants bounding land on lakes and ponds, as appears from the annexation of islands to the towns adjacent, etc.

In Kanouse v. Slockbower, 48 N. J. Eq., 42, it was held that the line bounding the land on the pond or lake was in terms confined to the edge of it, and for that reason as well as in construction of law the land devised embraced none under the water nor any beyond low water mark. The proposition that the rule applicable to boundaries on fresh water streams does not apply to lakes or ponds was held in Boorman v. Sunnuchs, 42 Wis., 233, and Diedrich v. N. W. U. Ry. Co., id., 248. And the same in Trustees of Schools v. Schroll, 120 Ill., 509; 60 Am. Rep., 575. In Fletcher v. Phelps, 28 Vt., 257, there was really no question that the boundary of the land on Lake Champlain was other than at low. water mark. And the court, referring to the rule relating to boundaries of land on a fresh water stream, added that a different rule prevails where land conveyed is bounded on large natural ponds or lakes, and cites the Waterman and Canal Commissioners cases.

The determination of some of the cases above cited is founded upon the proposition that the riparian owners do not have title to lakes and ponds. And in Paine v. Woods, 108 Mass., 169, Mr. Justice Gray said that “the question whether the title in the land under a great fresh water pond or lake is in the proprietors of the lands adjoining, or in the crown, does not seem to have been ever judicially determined in England,” and cites Marshall v. Ulleswater Steam Navigation Co., 3 B. & S., 732, where the question whether the soil of lakes prima facie belongs to the riparian owners on either side ad filum aguce, or whether it belongs prima facie to the King, was raised and undetermined. But later it was held that the light to the soil of non-tidal lakes was not necessarily in the crown. Bristow v. Cormican, 3 App. Cas., 641; 24 Moak, 431. 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. Such is the common law rule in the states where the grantees of land so situated and described by boundary in grants as on or along such waters take to the centre. Rice v. Ruddiman, 10 Mich., 125; Clute v. Fisher, 65 id., 48; Ridgway v. Ludlow, 58 Ind., 248; Lembeck v. Nye, 47 Ohio St., 336; 24 N. E. R., 686. And in Ridgway v. Ludlow, it was held that prescriptive right acquired by adverse possession to land adjacent to such a lake extended to the middle of it.

In Hardin v. Jordan, 140 U. S., 371, the subject had very thorough consideration, was elaborately discussed, and the conclusion there reached and adopted by a majority of the court was, that by the common law the grantee of lands bounded upon an inland non-navigable lake or pond takes title to its centre. The lake there in question is in the state of Illinois, and is two or three miles in length. And the court reviewed the case of Trustees of Schools v. Schroll, supra, which was criticised, held not to have correctly declared the common law applicable to that state, and was disregarded as authority on the subject. This is in harmony with the rule in our state that the title to the soil under such waters is in the riparian owners; and analogously to that relating to the conveyance and proprietorship of lands bounded on fresh water streams, it would seem for the same reason to be alike applicable to such lakes and ponds. The reason for the distinction in the cases where it has been recognized has not been the subject of much discussion by the courts. But a reason given by Judge Gresham in State of Indiana v. Milk, 11 Fed. R., 389, had relation to the inconvenience or difficulty in locating in the lakes the lines of the several proprietors of the uplands. He was dealing with a lake covering fourteen thousand acres. But he added that “A person might by purchasing the lands surrounding a lake, in view of the size and other circumstances, be held to own the bed. Each case depends largely on its own facts.”

While a lake may be of such form as to render the designation in it of the lines of the several riparian owners in certain cases somewhat difficult, that fact in its relation to the practical effect of the rule is not an objection to its general application. No case will probably arise in which their respective rights in that respect may not be ascertained and defined in reference to the location and extent of the boundaries of their lands on or along the lake. Bends or bays in rivers may to some extent present like difficulties. The value, such as they have, of small non-navigable lakes and ponds as a general rule is mainly in their relation to the adjacent lands. There may, however, be exceptional cases. The pond in question has since the conveyance of the surrounding lands become useful in its production of ice by reason of railroad facilities for transportation of it to market. But this fact and the extent of the business and of the preparations made there by the defendant to carry it on have no bearing upon the question we are now considering. The inquiry has relation to the title in the soil under the water of the pond or lake. The views already given lead to the conclusion that the common law relating to the construction and extent of grants of land bordering and bounded on such waters is applicable alike to conveyances bounding lands on fresh water rivers and small non-navigable lakes or ponds. Such is the character of the one in question; and whether its bed was embraced in or excluded from the grants made by the deeds before mentioned is dependent upon their construction. The boundaries are described as along the pond ; and unless in some manner qualified or restricted, they by legal construction had the effect to embrace its bed within their grants. This in such case is the presumed intent unless the contrary appears. Luce v. Carley, 24 Wend., 451; Ex parte Jennings, 6 Cow., 518; Mott v. Mott, 68 N. Y., 247.

It is, however, urged that as in the last three of those deeds the lines along the pond are described by courses and distances, the intent thus appears to restrict the grants to those lines; and that such is the legal effect. It may be observed that the outer boundary of the waters of the pond are represented by courses and distances as appears by the deeds; and since they are described as along the pond, was the boundary in legal effect necessarily so restricted by that method of description as to exclude the bed from the grants ? A boundary line described as “ along the shore ” of a fresh water stream does not extend the grant to its centre, Child v. Starr, 4 Hill, 369, and a like construction is applicable to a boundary by the bank of such a stream. Starr v. Child, 5 Denio, 599; Halsey v. McCormick, 13 N. Y., 296. In those cases the prescribed limitation of the boundary lines to the shore and bank did not permit the extension of the grant by construction to the thread of the streams. And the same may be said of People v. Jones, 112 N. Y., 597; 21 St. Rep., 820.

Our attention has been called to cases relating to conveyances of lands adjacent to highways, where it was held that a line described as running along a highway from and to monuments located on one side of it did not vest in the grantee title to its centre, but by the terms of the description the road bed was excluded. Jackson v. Hathaway, 15 Johns., 447; Kings County Fire Ins. Co., v. Stevens, 87 N. Y., 287; Smith v. Slocomb, 9 Gray, 36. While there is in legal effect analogy between the boundary of grants on highways and streams, there is this distinction, that it is' not practicable to locate'monuments in the channels of the latter, and it is usual to refer in the description of boundary to their location adjacent to the water to mark the place of intersection with the stieam.

In Luce v. Carley, 24 Wend., 451, among the courses in the description of the premises, were those to a hemlock stake “ standing on the east bank of the river, from thence down the river as it winds and turns, twenty-four chains and ninety-four links to a hard maple tree,” etc. This maple tree, as appears by the opinion of the court, was described as standing on or near to the east bank. And in holding that the grantee took title to the centre of the river, the court said : “ It is never thought that monuments mentioned in such a deed as occupying the bank of the river are meant by the parties to stand on the precise water line. They are used to fix the termini of the line which is described as following the sinuosities of the stream. * * * 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 of 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.”

In Child v. Starr, 4 Hill, 375, the chancellor remarked that “ running to a monument standing on the bank, and from thence by the river, or along the river, etc., does not restrict the grant to the bank of the stream, for the monuments in such cases are only referred to as giving the direction of the lines to the river, and not as restricting the boundary on the river.”

In the Seneca Nation of Indians v. Knight, 23 N. Y., 498, the boundary of the land was described as beginning at a post standing on the bank of Lake Erie at the mouth and on the north side of Cattaraugus creek, and after describing other lines, proceeded “ thence * * * to a post standing on the north bank of Cattaraugus creek; thence down the same and along the several meanders thereof to the place of beginning.” It was held' that the grant was to the centre of the creek. The court there referred to and approved the remark before mentioned of the chancellor in the Child case, and added, parties may restrict their grants, “but the restriction ought to be found in very plain and express words.” And in Kings County Fire Ins. Co. v. Stevens the court cited with approval the Seneca Nation case, and in like manner noticed such remark of the chancellor in the Child case.

Inasmuch as a boundary by or along a water course is effectual to take the grant by legal construction to its thread, it would seem that the application of the courses and distances of the boundary along the water of the stream may not be treated as qualifying the effect which would be given to the grant if they were omitted. If the boundary were not expressed as along the pond, it might and would be assumed that there was an intent to so restrict. And it may be observed that the courses and distances between the outer lines intersecting it are not controlled by any monuments given in the deeds other than along the pond.

A question somewhat similar to this arose in Rix v. Johnson, 5 N. H., 520; 22 Am. Dec., 472. There the boundary on a river was described by courses and distances between the two points of intersection of the outer lines with the stream by reference to monuments located near it; and it was held that the boundary was in the river. The present case is distinguishable from those where • the line is described as along the shore or on the bank. Here there is nothing in the terms of the deeds which places the boundary along there outside the water of the pond. The boundary is described as along the pond. The courses and distances given represent the sinuosity of the line of connection of the water with the shore; and the boundary as described along the pond, as generally understood, means on its water. ' And the-fact that the length of the lines running to and from the monuments at the pond is the distance to and from them on the bank does not of itself affect the question. Such is usually the case of the description of land bounded on streanls in which the grants are treated as ad filum aquce. And as said by Mr. Justice Cowen in Luce v. Carley, where the grant is so framed as to touch the water of the river, one-half the bed of the stream is included by construction of law. This, of course, means to the extent of the boundary in contact with the water.

It is a matter of common knowledge in respect to lands bordering on streams and other bodies of water that it is usual in surveys, when made, to so describe the uplands as to compute the number of acres they contain, as generally in them exclusive of the'soil beneath the water is mainly the value, and the quantity of the uplands embraced in a conveyance constitutes in view of the situation the basis for the measure of the consideration.

The conveyances embracing the land surrounding this lake or pond were made many years ago. Ho circumstances appear bearing upon the purpose, construction or effect of those conveyances inconsistent with the intent of the grantors to include its bed within them.

If these views are correct the conclusion of the trial court that the plaintiffs had no title to the locus in quo was justified by the-evidence.

And the order should be reversed and the judgment affirmed.

All concur.


source: Caselaw Access Project

author: Follett, Ch. J.

license: Public Domain

text:
    Jesse B. Coleman, App’lt, v. The State, Resp’t.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    State—Trespass—Liability for acts op contractor.
    The state in 1822 dammed Tonawanda river and turned the water into Oak Orchard Creek so as to materially widen it where it passed through the farm of plaintiff who owned to the middle of the creek. The superintendent of public works being authorized by statute in 1887 to widen and deepen the channel of the creek, made a contract with T. to do the work across plaintiff’s farm and deposit the materials where directed by the state engineer. The engineer set stakes a few feet on plaintiff’s side, directing that no material should be deposited between the creek and the stake, but the contractor piled an immense'quantity of rock upon plaintiff’s premises. Held, that the entry of the state upon the strip of land and its_ direction to the contractor to excavate and remove the stone therefrom being wrongful, a trespass, it became liable for all trespasses committed by the contractor with the knowledge and acquiescence of the agents of the state in executing the contract.
    Appeal from a final award of the board of claims denying .any relief to the claimant.

      Whedon & Ryan, for claimant, app’lt; S. W. Rosendale, atty.-genl., for resp’t.
   Follett, Ch. J.

—The claimant’s farm of seventy-five acres is situated in the town of Shelby, this state, and is bounded on its westerly side by Oak Orchard creek, which rises some distance .south of the farm and not far from the head waters of the Tonawanda river. In 1822 the state dammed the river and constructed .an artificial water way by which part of its waters were diverted from the river and turned into the creek at' a point about two miles above or south of the claimant’s farm.. About four miles .below or north of this farm the creek crosses the Erie canal at the village of Medina, where part of its waters are used to feed the •canal, and have been so used since 1822. From Medina the creek flows northeastwardly and empties into Lake Ontario. The creek is about forty feet wide where it crosses claimant’s farm, and prior to the acts complained of was quite shallow. One of the highways of the town of Shelby extends through the claimant’s farm substantially on the east bank of and parallel to the creek. Between the west line of the travelled part of this highway and the line of high water mark there is land varying from ten to thirty-five feet in width, which previous to 1887 was smooth, capable ■of cultivation and from which the creek was easily accessible. From four to six rods east of the highway are the claimant’s farm house and out buildings.

By chapter 424 of the Laws of 1887, the superintendent of public works was authorized to widen (by how much is not stated) and to increase by two feet the depth of the channel of ■Oak Orchard creek from the point where the Tonawanda river is discharged into the creek to a point three miles below. Pursuant to this act, the state, by its said superintendent, and George M. Taylor, on the 28th day of July, 1887, entered into a written contract by which the latter contracted to widen by fifteen feet .and deepen by two feet the creek across the plaintiff’s farm for certain sums per cubic yard for material removed, and deposit the materials where directed by the state engineer. The engineer employed by the state set a line of stakes three or four feet east of the top of the slope of the bank of the creek and directed that no material taken from the creek should be deposited between it :and that line of stakes.

During 1887 and 1888 upwards of a thousand cubic cords of rock were taken from the bed of the creek by the contractor and ■deposited on both sides of the highway on the claimant’s premises. September 19, 1888, his claim was filed, which was tried in June, 1889, and in December, 1889, an award was made by which it was decided that he was not entitled to recover anything, although it was found as a fact that he was damaged by piling stone upon his land and in various ways not necessary to-here mention. The claimant was denied any relief as against the. state upon the ground that the wrongs complained of were committed not by the state or its agents, but by the contractor. The. board found, in effect, that the claimant’s land extended to the center of the creek, which was its western boundary, but failed to take into consideration the fact that the state entered upon the land between the center of the stream and the line of stakes set on its eastern bank and directed the removal of material therefrom.

There is no finding that the state ever acquired by gift, grant or by the right of eminent domain, title to any part of this land or the right to enter upon and remove any portion of it, and there-is no evidence in the record which would sustain such a finding. The only evidence bearing upon this question is the concession-that the creek had been used as a feeder for the canal since 1822.

There is no evidence that the state has occupied the whole of the land which it entered upon claiming to be its exclusive owner, and for this reason the evidence is insufficient to have authorized the board to have found that the state had acquired title to all or some portion of this land by adverse possession. The right to divert water from the Tonawanda river to this stream and use it six or seven miles below for supplying the canal, which we will assume might be acquired by adverse user, would not of itself confer the right upon the state to broaden and deepen the bed of the stream.

For the injury caused by entering upon this strip of land by the state it was liable, and the board erred in refusing the claimant any relief. The entry of the state upon the land and its direction to the contractor to excavate and remove the stone therefrom being wrongful, a trespass, it became liable, for all trespasses committed by the contractor with the knowledge and acquiescence of the agents of the state in executing the contract.

Whether the state is liable for the acts of the contractor in piling the waste material upon the claimant’s land in case the state-had the right to remove the material from the bed of the stream, depends upon whether those trespasses were directed, authorized- or sanctioned by the state. This was a question of fact which was litigated on the trial now being reviewed, and may again be, in case the claim is re-tried, and the evidence and finding may be different, so the findings and evidence bearing upon this question need not now be discussed.

It does not appear that the claimant requested the board to find facts and conclusions of law, nor that he excepted to the facts found or conclusions of law. .The statute regulating appeals from the decisions of the board of claims provides that an appeal may be taken to the court of appeals upon questions of law -only arising upon the hearing oí the 'claim, and that every appeal shall be in writing and briefly state the grounds upon which it is taken.

In this case the questions above discussed were specified in the notice of appeal served, which was sufficient to enable the appellant to raise the questions, although he had not served and filed exceptions as he might well have done.

The final award or order is reversed and a new hearing ordered, with costs to abide the event

All concur.


author: Vann, J.

text:
    The City of Cohoes, App’lt, v. The President, etc., of the Delaware & Hudson Canal Company, Resp’t. (2 cases.)

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    Highways—Dedication—Revocation.
    In 1835, the Cohoes Company, owner oí the locus in quo, kept at its oífice a map upon which the land in question was designated as Van Rensse- • laer street, and filed a copy in the Albany county clerk’s office. It sold lots and bounded them on the street, which was mapped as eighty feet wide, and for nearly its whole length, and on its west side an open canal thirty feet wide. In 1853, a railroad company, of which defendant is successor, having agreed with the corporation as to location and damages, filed a map designating the street in.the same manner. It then built its road on the east side of the street fifty feet wide, and also a freight house, which completely blocked the remaining thirty feet to the west, and occupied the freight house to 1887. From 1845, persons drove along the part of the street not occupied by the tracks, and after the freight house was erected drove around it. The city of Cohoes was incorporated in 1869, and in 1874 its common council passed a resolution declaring Van Rensselaer street a public highway, and that the same be graded, but only a small portion of it was ever worked. In 1883, the mill corporation conveyed to defendant all its interest in the street. In an action between the city and defendant, Reid, that Van Rensselaer street became a public highway by dedication in 1853, and has never ceased to be such.
    (Follett, Oh. J., dissents.)
    Appeal in each action from a judgment of the general term of the supreme court, in the third judicial department, affirming a judgment entered upon the decision of the court after a trial at special term.
    The first action was commenced December 27, 1885, to restrain the defendant from laying an additional railroad track in an alleged public street of the city of Cohoes without the permission of the proper authorities. The defendant denied that the so-called street was ever a public highway, and alleged that it had duly acquired from the owner of the fee of the strip of land in question the right to use the same for its tracks and for railroad purposes.
    The original proprietor of the land within the boundaries of the city was the Cohoes Company, which acquired title to the same November 5, 1838. Upon a map of the then village of -Cohoes, known as the Olmstead map, made in July, 1835, and since 1857, at least, kept at the office of said company, the land in question was designated as Yan Rensselaer street. A copy of .said map, numbered 175, was filed in the Albany county clerk’s office, bearing “ upon the margin thereof the words and figures ¿ July, 1835,’ and the official index book of maps kept in said office indicates the date of making said map to have been July, 1835.” On December 28,1847, the Cohoes Company conveyed a lot fronting on said street according to the lot number as designated on the map so “ filed in the office of the city and county of Albany,” and in the description named “ the northwest corner of Ontario and Van Bensselaer streets” as the starting point Another map of said village, dated 1845, made by the engineer of the Cohoes Company, known as the Frost map, designates the land in question as Van Bensselaer street, and upon all of said maps the same territory is laid down as a street under that name, eighty feet wide, extending southerly from the Mohawk river to Mohawk' street, and crossed nearly at right angles by Oneida, Ontario and Pine streets in the order named. A canal about thirty feet wide is designated upon each of the maps as extending on the westerly side of Van Bensselaer street from Mohawk to Ontario street, where it turns, to the west, and continues for several blocks until it reaches a larger canal. A similar canal is also laid down on the west side of Van Bensselaer street for a part of the distance between Ontario and Oneida streets.
    The business of the Cohoes Company is the leasing of water power for manufacturing purposes and it has many canals, used to distribute the water, located in, along and under the streets, arched over in places for safety and convenience. No canal, however, has at any time actually existed along Van Bensselaer street, except on paper. Said maps included the land of the Cohoes Company and showed the streets and building lots, duly numbered, and mill sites into which its property was divided, and from time to time said company conveyed lots referring to the maps for further description. December 28, 1847,- it thus conveyed a lot “ beginning at the northwest corner of Ontario and Van Bensselaer streets, running thence northerly 100 feet.” January 1, 1858, it conveyed another lot, “ beginning at a point in the west line of Van Bensselaer street 100 feet northerly from the. corner of Ontario street” One of the courses runs to the “ westerly line of Van Bensselaer street.” August 20, 1861, it conveyed a third parcel “ known * * * as lots Nos. 21 and 23,” according to the “ map * * * made by James Frost,” two of the courses being given as follows: “ Bunning thence easterly along said line of Ontario street to the west line of Van Bensselaer street and thence along that line southerly 200 feet.” These conveyances were respectively recorded January 25,1849, November 30, 1885, and July 25, 1871. In 1845, when the Frost map was made, monuments were placed along the sides of Van Bensselaer street, “ as then surveyed and as so laid down on said map, at the corners of intersecting streets, some of which still remain.” In 1853, the Albany & Northern Bailroad Company, to whose rights the defendant has succeeded, laid three tracks along the easterly, side of Van Bensselaer street for its entire length, thus occupying about fifty feet in width, or all of the street except a strip thirty feet wide on the westerly side. The map of the route of said railroad company filed August 16, 1853, “ locates, lays down and designates Yan Rensselaer street precisely as the other maps above mentioned.'” In 1853 the said railroad company built a freight, house near the corner of Oneida street, about fifty-two feet long' and extending entirely across that part of Van Rensselaer street not occupied by the tracks, so as to completely obstruct the street at that point. It continued there and was used for railroad purposes until 1886 or 1887, when it was torn down.
    From a period beginning as early as 1845 and continuing until said tracks were laid “ people having occasion to travel that way passed with teams and vehicles over the line of Yan Rensselaer street about where the tracks ” were placed. After that, “ teams and vehicles passed along said street to the west of the railroad tracks, and after the freight bouse was built to the west of that over a vacant lot outside of the line of the street and upon passing the freight house turned into the street again.”
    The people were also accustomed to drive on the west side of Yan Rensselaer street to and from the freight house for the pur-, pose of delivering and receiving freight and express matter. In June, 1874, the 'plaintiff’s common council duly adopted a resolution “ that Yan Rensselaer street from Oneida street south to its intersection with the Mohawk street be and hereby is declared a public highway and that the same be graded.” The resolution also provided lor the service upon abutting owners of a notice to show cause why the grade should not be established and the street graded.
    At various times between 1879 and 1885 the superintendent of streets filled up the holes and ruts on Yan Rensselaer street and did some other work thereon, mostly upon his own motion, hut partly pursuant to the directions of the chairman of the street committee of the common council. It does not appear when the village of Cohoes was organized, but it was recognized as an incorporated village by an act passed in 1849. Laws 1849, chap. 314. The city was incorporated in 1869. Laws 1869, chap. 912.
    In 1883, the defendant obtained from the Cohoes Company a quitclaim deed “ of all the rights and interest which the said com-pan jr” had in 1853, “if any, in the land covered by said alleged Yan Rensselaer street.”
    It is provided by statute, Laws 1869, chap. 912, title 5, § 32, that violations of ordinances, passed in behalf of the plaintiff, may be restrained by injunction. In November and December, 1885, when the defendant, without permission, attempted to excavate Yan Rensselaer street for the purpose of laying another track on the west side thereof, and the first action was commenced to restrain such acts,.there was a city ordinance in force prohibiting all persons from digging up or obstructing any of the streets of the plaintiff without first obtaining the written consent of its mayor.
    The old freight house having been removed in 1887, the defendant, without permission, began to excavate on the west side of Van Rensselaer street thirty-four feet south of the south line of the former freight house and thirty feet north of the north line thereof, for the avowed purpose of building a new freight house.
    The second action was commenced in December, 1887, to restrain the defendant from thus interfering with and obstructing :the. alleged street.
    The complaint in each action was dismissed by the trial court, ■and upon appeal to the general term the respective judgments were affirmed.

      E. Countryman, for app’lt; Edwin Young, for resp’t.

       Reversing 27 St. Rep. 613.

   Vann, J.

—Public highways may be created in four ways:

1. By proceedings under the statute. 2 R. S., 8th ed., p. 1372 et seq.; also p. 1383, § 100.

2. By prescription, or where land is used by the public for a highway for twenty years, with the knowledge but without the consent of the owner. The presumption of a grant of the right of way springs from the mere lapse of said period of time in connection with 'the adverse user by the public.

3. By dedication through offer and implied acceptance, or where the owner throws open his land intending to dedicate it for a highway and the public use it for such a length of time that they would be seriously inconvenienced by an interruption of the enjoyment This rests upon the principle that the owner is es-topped from revoking his offer after the public have acted on it for long a period that it would be a fraud upon them if he were permitted to do so. No particular length of time is required to effect such a dedication, as every case of an estoppel in pais necessarily depends upon its own facts.

4. By dedication through offer and actual acceptance, or where the owner throws open his land and by acts or words invites acceptance of the same for a highway and the public authorities, in charge of the subject, formally, or in terms accept it as a highway. In the absence of an actual conveyance the owner does not part with his title to the land, but only with the right to possession for the purpose of a highway.

Although there has been some conflict of opinion upon the subject, we understand this to be the law as established by the weight of authority in this state. Flack v. Village of Green Island, 122 N. Y., 107, 113; 33 St. Rep., 339; Driggs v. Phillips, 103 N. Y., 77; 3 St. Rep., 69; People v. Loehfelm, 102 N. Y., 1; Cook v. Harris, 61 id., 448, 454; Holdane v. Trustees of Cold Spring, 21 id., 474; McMannis v. Butler, 51 Barb., 436; Carpenter v. Gwynn, 35 id., 395; Wiggins v. Tallmadge, 11 id., 457; Clements v. Village of West Troy, 10 How., 199; Ward v. Davis, 3 Sand., 502; Hunter v. Trustees of Sandy Hill, 6 Hill, 407; Denning v. Roome, 6 Wend., 651; Colden v. Thurbur, 2 Johns., 424; Elliot on Roads & Streets, 119; Thompson on Highways, 56; Angell on Highways, § 144; 2 Grreenleaf Ev., § 662; 2 Dillon Mun. Corp., § 491; 5 Am. & Eng. Encyc., 396.

The same rule prevails in the supreme court of the United States, in the courts of most of the states, and in England. The President, etc., of the City of Cincinnati v. White, 6 Pet., 431; Bar clay v. Howell, id., 499; Buchanan v. Curtis, 25 Wis., 99; Marcy v. Taylor, 19 Ill., 634; Green v. Town of Canaan, 29 Conn., 157; Kennedy v. Le Van, 23 Minn., 513; City of Waterloo v. Union Mill Co., Co., 72 Iowa, 437; State v. Trask, 6 Vt., 355; Abbott v. Mills, 3 id., 521, 526; Hobbs v. Lowell, 19 Pick., 405; State v. Hill, 10 Ind., 219; Price v. Town of Breckenridge, 92 Mo., 379; Wolf v. Brass, 72 Texas, 133; Commonwealth v. McDonald, 16 Serg. & R., 390; Doe v. Jones, 11 Ala., 64, 84; Dovaston v. Payne, 2 Smith’s Leading Cases, 142, 153, note; Rughby Charity v. Merryweather, 11 East, 375, n.; The King v. Inhabitants of Leake, 5 Barn. & Ad., 469; Lade v. Shepherd, 2 Str., 1004; Jarvis v. Dean, 3 Bingh., 447; Woodyer v. Hadden, 5 Taunt., 126; Regina v. Petrie, 30 Eng. L. & Eq., 207.

There are some cases holding otherwise and others that have been supposed to hold otherwise, but upon examination it will be found that they depended on local statutes or special circumstances. Underwood v. Stuyvesant, 19 Johns., 181; Laws 1787, chap. 61, 88; Laws 1797, chap. 43; Laws 1799, chap. 70; Oswego v. Oswego Canal Co., 6 N. Y., 257, 266; Laws 1811, chap. 231.

There are obiter remarks also scattered through the books showing that certain judges have held views at variance with the foregoing rule, but we do not regard it essential in order to decide this case to make specific reference to them, or to. analyze the authorities, for the learned counsel for the defendant with great fairness states the law substantially as we have stated it.

The trial judge found in the decision upon which judgment was entered “ that the Cohoes Company, the original owners of the fee, in surveying, designating and laying down said Yan Eensselaer street upon the aforesaid maps, selling said lots and allowing the same to be used, expressed an equivocal and qualified intent to permit such user as a public highway, subject to the right of revocation by said Cohoes Company; that the action of the Cohoes Company permitting the defendant to lay its tracks and build its freight house in said Yan Eensselaer street, and by other acts, expressed an intent to revoke said equivocal and qualified dedication of Yan Eensselaer street for highway purposes before it was accepted by the city authorities, or by user by the public, or otherwise.”

Upon the request of the plaintiff the trial judge also found, “ that there has been a continuous user on the part of the public of the whole of said territory between Pine and Oneida streets since in or before the year 1845, except as the same was temporarily deflected by the laying down of said railroad tracks and the erection of said freight house; that from 1845 down to the time of the commencement of this action the public user of said Yan Eensselaer street from Oneida to Pine street has been general, continuous and exclusive for all the purposes of a public street or highway; that the Cohoes company, the original owners of the fee, in surveying, designating and laying down said Yan Eensselaer street upon the aforesaid maps and opening, or allowing the same to be opened for use, intended to and did dedicate the same as a public street or highway," and “ that before the laying down of the railroad tracks in 1853, the dedication by the Cohoes Company of said Van Rensselaer street bewteen Oneida .and Pine streets as a public street and highway had been accepted by the public by user and public travel thereon.”

Upon the request of the defendant, the trial judge further found “ that there never has been any dedication of Van Rensselaer street for highway purposes; that .there has never been an acceptance of the alleged dedication by the authorities, nor by user and that there never has existed a public highway at the locus in quo by dedication and acceptance.”

It is our duty to harmonize these findings so as to arrive at the real intention of the trial judge, if it is possible. Bennett v. Bates, 94 N. Y., 354.

We are unable, however, to reconcile the conflict, and as the presumption of regularity does not extend to the method prescribed by statute to aid a party in correcting errors on appeal, we are compelled to accept the finding that is most favorable to the appellant. Kelly v. Leggett, 122 N. Y., 633; 33 St. Rep., 264; Wahl v. Barnum, 116 N. Y., 87; 26 St. Rep., 457.

In the further discussion of the subject, therefore, we shall assume that in 1853 Van Rensselaer street had become a highway by dedication. It is unnecessary for us to consider the effect of the action of the Cohoes Company in designating canals upon the maps within the boundaries of. the street, for that could amount to no more than an implied reservation of the right to construct the canals as thus located. Ho attempt has been made to exercise the right, and it is immaterial in this controversy whether it exists or not. An offer to dedicate land for the purpose of a highway may be qualified, or made subject to a certain burden, and if it is accepted cum onere, the burden continues, but the land becomes a highway notwithstanding. After acceptance there is no power to increase the burden, or to revoke the dedication, except according to the terms of the reservation, so that assuming that •the Cohoes Company had the reserved right to dig the canals, it had no other right and no general power of revocation. Ayres v. Penn. R. R. Co., 52 N. J. Law, 405; 48 id., 44; State v. Society, etc., 44 id, 502; People v. Kingman, 24 N. Y., 559; Cornwell v. Commissioners, 10 Exch., 771; Le Neve v. Mile End Old Town, 8 El. & Bl., 1054; Fisher v. Prowse. 2 Best & S., 770; Mercer v. Woodgate, L. R., 5 Q. B. 26; Arnold v. Blaker, 6 id., 433; St. Mary's, etc., v. Jacobs, 7 id., 47; Arnold v. Holbrook, 8 id., 96; Angell on Highways, 151-156.

After Van Rensselaer street became a highway by dedication, whether burdened with the right to construct canals in it or not, no. action on the part of the original proprietor could deprive it of that character, for a highway, when once established, continues until discontinued according to law. Driggs v. Phillips, 103 N. Y., 77; 3 St. Rep., 69; Adams v. The S. & W. R. R. Co., 11 Barb., 414; Doe v. Jones, 11 Ala., 63; 5 Am. & Eng. Encyc., 410.

Moreover, there is no evidence of any attempt at revocation by the Cohoes Company, prior to 1883, when it conveyed to the defendant the right “ to use and occupy as a part of its railroad, for its tracks and for railroad purposes and uses, that part of the land in'said city, called, known and laid down on the Frost map as-Van Bensselaer street.”

It does not appear that the Cohoes Company ever consented, to any act of occupancy of said street by the defendant or its predecessor prior to 1883. The construction of the railroad tracks- and freight house in 1853 was apparently without authority, and the Cohoes Company after that date in conveying land repeatedly recognized Van Bensselaer street, eo nomine, as an existing street. The utmost that can be said is that, in common with the villageauthoritiesl the general public and the owners of lots abutting-upon the street, it suffered the railroad to occupy.

It is claimed that the street ceased to exist as a highway before the commencement of this action, by virtue of chap. 311 of the Laws of 1861, which provides that “ every public highway and private road already laid out and dedicated to the use of the-public that shall not have been opened and worked within six years from the time of its being so laid out, and every such highway hereafter to be laid out that shall not be opened and worked within the like period shall cease to be a road for any purpose-whatever.”

It is not important to consider whether this statute applies to a street in a city, or to a case of continuous offer and user for about, forty years, as in our judgment the burden of proof is upon the one who invokes the aid of the statute to show that his case falls-within its provisions, and that burden was not met by the defendant upon the trial of these actions. Re Woolsey, 95 N. Y., 135; Vanderbeck v. City of Rochester, 46 Hun, 87; 15 St. Rep., 148.

The trial justice found “that no portion of Van Rensselaer street has ever been worked within the meaning of ” said statute, “ prior to June 4, 1880, or within six years after the resolution of acceptance of said city.” To this finding the plaintiff excepted, and thus raised the question of law whether there was any evidence to support it. Halpin v. Phenix Ins. Co., 118 N. Y., 165; 28 St. Rep., 788.

An examination of the record discloses no evidence upon the subject, except that from 1879 to 1885 some work was done-upon the street by the city authorities. The finding can be sustained, therefore, only upon the theoiy that the burden of proof was upon the plaintiff to show affirmatively that an established highway was not abandoned by failing to work the same during the period named. This was no part of the plaintiff s case, but. was matter of defense. When a highway is once shown to exist, it is presumed to continue until it is shown to exist no longer. Beckwith v. Whalen, 65 N. Y., 322.

The presumption is in favor of continuance, not of cessation. “ The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the burden of proving that fact shall lie on any particular person.” Stephen’s Law of Ev., 155; 2 Best on Ev., 364.

“ When the existence of a person, a personal relation or a state of things is once established by proof, the law presumes that the person, relation or state of things continues to exist as before, until the contrary is shown or until a different presumption is raised from the nature of the subject in question.” Greenl. Ev., § 41; 2 Stark. Ev., 590, 688; Eames v. Eames, 41 N. H., 177; Brown v. King, 5 Met., 173; Peaslee v. Robbins, 3 id., 164. The authorities apply the principle to a partnership, a state of mind, seizin, disability and many other facts, which, when shown to exist, are presumed to continue until the presumption is rebutted. We think that the principle should be applied to the case of a public highway in existence as early as 1853 and in actual use ever since.

It is further claimed that the plaintiff cannot maintain this action because its mayor and common council have not determined the width of Van Rensselaer street according to the use that has been made of it

This position is based upon that provision of the Revised Statutes which directs commissioners of highways “ to cause such of the roads used as highways as shall have been laid out but not sufficiently described, and such as shall have been used for twenty years but not recorded, to be ascertained, described and entered of record in the town clerk’s office.” 2 R. S., 8th ed., 1347, § 1, subd. 3.

The trial justice appears from his elaborate opinion to have based the dismissal of the complaint wholly upon this statute and the act of 1861, already considered.

Even if the statute applies to the plaintiff, an incorporated city, there is neither finding nor evidence that it has not been complied with. A resolution of the common council adopted in 1874, and entered in the minutes of the city clerk, declared Tan Rensselaer street a public highway “ from Oneida street south to Mohawk street.” The case shows nothing further upon the subject and it will not be presumed in the absence of evidence that public officers failed to do their duty.

Moreover, actions are expressly authorized by the charter of the plaintiff to restrain violations of its ordianances, one of which prohibited every person, etc., from digging up or encumbering “ any of the .streets, alleys or any portion thereof, without the written consent of the mayor.”

Even without the aid of a special statute it was long since held by high authority that a municipal corporation could prevent by injunction the erection of a nuisance upon lands dedicated to the use of its inhabitants. Trustees, etc., of Watertown v. Cowen, 4 Paige, 510.

Without further elaboration of our views, we think that upon the facts as found by the trial court at the request of the plaintiff, Tan Rensselaer street became a public highway by dedication in 1853, and that it has never ceased to be such.

The judgment in each action should therefore be reversed and a new trial granted, with costs to abide event"

All concur, except Follett, Ch. J., dissenting, Parker, J., not voting, and Landon, J., not sitting.


text:
    Frank B. Knowlton, App'lt, v. Thomas J. Atkins, Resp’t.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    Trust—Declaration—Construction.
    Defendant executed a declaration of trust stating that certain lands-deeded absolutely to him by Ids brother during his life time were held by him in trust, with power to sell as in his judgment best for the benefit of the widow and two children, to collect the income and pay one-third to-the widow during life, the remainder to be invested for the benefit of the children until majority. The trust could terminate by consent of the widow and a reconveyance he made to the children of their interest, and must terminate upon the majority of the youngest child. In case of the death of both the children before majority, then the whole to the widow. The widow died before either of the children came of age. Held, that the widow left no estate expectant or contingent which descended on her death to her children.
    Appeal from an order of the general term of the supreme-court in the second judicial department, reversing interlocutory judgment entered upon report of a referee and granting a new trial.
    The action was brought to obtain conveyance of' certain lands- and an accounting for the proceeds of certain other lands sold by the defendant, all the subject of a trust arising out of the conveyance made by one Osmin W. Atkins, in which his wife joined,, to the defendant.
    This conveyance was made by deed absolute in terms and covered lands in the county of Kings. The grantor died in September, 1871, and afterwards, September 17, 1872, the defendant executed under his hand and seal a declaration of trust by which, after referring to the deed and giving a description of the lands, it was recited that the conveyance was made to enable him to sell and dispose of the lands for the benefit of the widow and children of the grantor in case of his decease, and that be had since-deceased leaving a widow Cordelia Atkins and two minor children, Albert S. and Osinin M. Atkins. Then followed his declaration that he had taken and then held the property in trust only, and for the use and purposes:

      First. .To sell, convey and dispose of the property as in his-judgment should be for the. best interest of the widow and children.

      Second. To collect the rents, issues and profits of the property, hold them and the proceeds of sales in trust for the use and benefit of the widow and the two children or the survivor of them. The widow to receive from the net income and proceeds of sale one-third thereof, payable to her semi-annually during her life; The remaining two-thirds to be invested for the use and benefit of the two children during their respective minorities or for the use and benefit of the survivor of them in case of the death of either of them before his majority, without issue. But out of the two-thirds the widow should receive sums reasonable for the support and education of the two children.

      Third. To terminate the trust at his option with the consent in writing of the widow, and thereupon convey the lands remaining unsold (subject to the-life use'of the widow in one-third) to the children or to the survivor of them, or his heirs in case the deceased left no issue, and make a like disposition of the income and proceeds of sales in his hands, except that the then value of the interest of the widow in them be paid to her, and if in his and her judgment it is best to do so, ■ to also pay her the then value of her interest in the property remaining unsold.
    “ Fourth. This trust is to terminate, if not previously terminated as above provided, when the younger of said children, or the survivor of them, shall attain the age of twenty-one years, at which time I am to convey to them as joint tenants in equal proportions, share and share alike, all of said property unsold, subject to the dower rights of said Cordelia, and to divide and pay over to each of them his equal share of all income and proceeds of sales then in my hands after deducting all lawful charges and expenses, and first paying to said Cordelia the' then present value of her interest therein.
    “ Fifth. In case of the death of both of said children before-the age of maturity, then I am to convey all and every part of said property then remaining unsold, and to pay over all income- and proceeds of sales in my hands (deducting charges and expenses) to said Cordelia for her sole use and benefit forever.”

      Sixth. In case of his death before the maturity of the children or the survivor of them, the widow Cordelia is to succeed to the trust.

      Seventh. In case of the death of Albert S. and Osmin M. Atkins, or either of them, in minority “ leaving lawful issue, the-children so left shall take the share of their parent or parents respectively per stirpes and not per capita.”
    The widow Cordelia died in November, 1873. In December, 1881, both of the children died on the same day at the ages of twelve and ten years. And although their death was caused by drowning on the same occasion, the referee found that the elder one, Albert S. Atkins, survived Osmin M. Atkins, the younger.
    Their only immediate relatives were the defendant, the brother of their father, and Mrs. Knowlton, the mother, and the plaintiff, the brother of their mother Cordelia. Mrs. Knowlton died before this action was commenced. The referee determined that the plaintiff was entitled to three-fourths of the trust estate, and that the defendant should convey and account to him accordingly. Thereupon, with a view to his accounting for the income and proceeds of sales an interlocutory judgment was entered.

      James B. Ludlow, for app’lt; W. W. MacFarland, for resp’t.

       Affirming 32 St. Rep. 89.

   Bradley, J.

—The controversy has relation to the inheritance-of the property in question. The declaration of trust is presumed to express the purpose of the conveyance by Osmin W. Atkins .and Cordelia, his wife, to the defendant, and both may be treated .as if embraced in a single instrument. The plaintiff claims title by descent from the children Albert S. and Osmin M. Atkins, through their mother, who was his sister; and the defendant .asserts his claim to the title by descent on the teimination of the trust from his brother. The brother having the title was the ■creator of the trust, and if as the defendant contends the estate then reverted to his heirs, he, as such heir, took it. The plaintiff, on the contrary, insists that the widow Cordelia had by the trust .an estate in expectancy in the property, which on her death descended to her two children ; and that on their death in minority the estate became absolute and vested in their heirs. And because it came to them in that event on the part of their mother it descended to their maternal uncle, except as to one-half which came to Albert by descent from his brother Osmin M., whom he •survived ; and as to that half both the defendant and plaintiff, as his paternal and maternal uncles, took and shared equally. This would be so upon the assumption that such wms the stock of •descent, since for the purpose of determining who in that manner take under our statute reference is had to the immediate source of descent, and not to the blood of him in whom was the earlier inheritable title. 1 R. S., 752, §§ 10, 13; Hyatt v. Pugsley, 33 Barb., 373. The main inquiry here is whether or not the widow Cordelia had in the property an estate which descended on her death to her children. Her alleged estate was the product of the grant made by Osmin W. Atkins to the defendant for the declared purpose of the trust. And the fact that this was an express trust, and therefore vested the whole estate in the trustee subject to the execution of the trust, 1 R. S., 729, § 60, did not prevent Cordelia and the children taking through the same grant so made vested future estates in the property, although they were held until its termination subject to- the execution of the trust. Id., § 61; Embury v. Sheldon, 68 N. Y., 227, 234; Goebel v. Wolf, 113 id., 405; 23 St. Rep., 176; Van Axte v. Fisher, 117 N. Y., 401; 27 St. Rep., 257; Re Tienken, 131 N. Y., 391; 43 St Rep., 184. Upon this proposition in the present case Townshend, v. Frommer, 125 N. Y., 446; 36 St. Rep., 153, has no necessary application. The future estates which there were the subject of consideration were treated as contingent.

In the case .at bar, those children, through the instruments creating the trust, acquired a future estate. And it was defeasible, as appears by the fifth article of such declaration, which provides that “in case of the death of both of said children before the age of maturity, then I am to convey all and every part of said property then remaining unsold, and to pay over all proceeds of sale in my hands, (deducting charges and expenses) to said Cordelia for her sole use and benefit forever.” The trust was terminated by the death of those children. They died in minority. The estate so acquired by them was not contingent, but a vested estate, defeasible only by condition subsequent, and may be designated as a determinable fee. And the limitation over to Cordelia created in her an estate in expectancy, limited upon the contingency of death of the children within the age of minority. This was also a limitation to her in fee, to become absolute only upon the specified contingency. The doctrine of the common law upon the subject has-been somewhat simplified by the statute, in the removal of the distinction between contingent remainders and executory devises. Thus treating them alike as future or expectant estates, and subject to the same provisions. As defined- by the statute, estates in expectancy embrace future estates and reversions; and a future estate is vested when there is a person in being who would have an immediate right to the possession upon the ceasing of the intermediate or precedent estate. 1 R. S., 723, §§ 8, 13. They may be created to take effect in the alternative, and a fee may be limited on a fee upon a contingency. Id. 724, §§ 24, 25. It follows-that by the provisions of the fifth article of the declaration of trust, a vested future estate in Cordelia was created, which would, become absolute on the contingency upon which it was limited. And this estate was acquired by her as of the time of the creation of the trust. Id. 726, § 41.

The further and important question in this connection, is-whether this estate did descend to her children, and become absolute on their death. As an expectant estate is descendible, id. 725, § 35, such was the effect of the survival of her by them, unless it was defeated by her death.

It is urged by the defendant that the future estate of the widow Cordelia was dependent upon not only the death of the children while in minority, but also upon her surviving them. This becomes a matter of construction of the declaration of trust. Because her survivorship of the children was not essential to such expectant estate, unless made so by the contingency upon which it was limited, although it could not become absolute without the death of the children in minority, and the estate so descending from their mother never could be enjoyed by them. Hennessy v. Patterson, 85 N. Y., 91; Kenyon v. See, 94 id., 563; Van Axte v. Fisher, 117 id., 401; 27 St. Rep., 257; Griffin v. Shepard, 124 N. Y., 70; 35 St. Rep., 210.

It may be observed that the provisions of the fifth article of the declaration of trust do not in express terms make such survivor-ship of Cordelia a contingency upon which the conversion of her future estate into an estate in possession was made dependent But it is the duty of the court to give effect to the intent with which the declaration of trust was made, so far as such intent can be collected from the whole instrument. 1 R. S., 748, § 2. And for this purpose reference may be had to the general scheme of the trust, its object and purpose as so represented. It appears to have been created solely for the benefit of the widow and children of the grantor, and for that purpose, to enable the trustee to sell and dispose of the property as well as to receive the rents and profits. He was to pay one-third of them and of the proceeds of sales to the widow and invest for the benefit of the children the other two-thirds less sufficient for their maintenance and education to be received by her. This was to continue during her life, unless during that time the children reached the age of majority, or unless at the option of the trustee and with the consent of the widow a conveyance was sooner made of the property to the children, in which event it should be made to them subject to her dower, and if not so made before their majority the property ■should then be conveyed to them in like manner subject to her ■dower if she survived that period of time. The trust if not ended before, was to terminate with their minority. The opportunity for its earlier termination unless-both of them should in the meantime die was defeated by the death of the widow. It was designed that she should take the property in the event the trust was terminated by the death of the children under age. That is to say, if by reason of the early death of the children they were unable to take the property under the trust she would be entitled to it.

This was the . apparent purpose of the provisions of the fifth article. The creation in the widow of an expectant estate which would on her death while the children were in minority descend to them, could be of no value to them in case they, or either of them, reached the age of maturity, as then they would be entitled to the property and would take it by virtue of the trust; and if they should not reach that period in. life, it could not be enjoyed by them because it could become an estate in possession only by means of their death in the age of minority. The situation thus presented would be such that on their survival-of their mother, the children would have two vested future estates, the one to become absolute on their demise in minority and to be superseded by the other if they reached the age of majority. If, however, such was the intent it must be effectuated. But it is seen that the respective interests of the beneficiaries in the income and profits of the property during the continuance of the trust were defined; and in like manner were they preserved in the property on, the termination of the trust in the event all of the beneficiaries survived it And it quite evidently appears by the instrument that the primary purpose in respect to the final disposition of the property as between those persons was that, subject to the dower interest to be reserved for the widow, it should go to the children, and only in the event that they did not survive the opportunity to take the property, it should go to the widow for her use and benefit; and that to reach her in this order of vesting the estate in possession, her survival of the event which should defeat the right of the children to take it was essential. This apparently- seems to have been the scheme in view in creating the trust and is in general harmony with its declared purposes. And it may be observed that there were no words of grant or gift to Cordelia other than as expressed in the purpose to convey to her in the specified event for her use and benefit. This purpose so expressed tended somewhat to show the understanding of the provision by the trustee in respect to the personal relation of the widow to the right to do so when the event should occur upon which she would be permitted to take the property. That provision is that, “ in case of the death of both of said children before the age of maturity I am to convey * * * to the said 'Cordelia for her sole use and benefit forever.”

We do not assume that a conveyance was essential to perfect her right to the property when the event occurred which entitled her to it. But reference is made to the expression used by the trustee as indicative, so far as it may be, of his intention in respect to the event upon which such provision made for the benefit of Cordelia should become effectual to convert her future estate into a present one.

In Hennessy v. Patterson, the provisions of the will furnished nothing indicating any intent of the testator to make the survivor-ship of his nephew a contingency upon which his right to take under the devise should depend. But the purpose there was apparent to defeat descent of the property to those not of his blood •on the death of his daughter to whose use its income was devoted during her life.

And it may be observed that upon doubtful construction the tendency of the law is to favor that which permits descent to remain in the line of ancestral blood. Quinn v. Hardenbrook, 54 N.Y., 83; Wood v. Mitcham, 92 id., 375.

Without proceeding further with the discussion of this question, we think that the intent of the persons creating the trust, as such intent may be collected from the whole instrument, was that not only the death of the children under the age of twenty-one years, but the survivorship of them by their mother was an element of the contingency upon which her. future estate was limited. In reaching this conclusion no consideration has been given to the earlier instrument executed by the defendant upon the subject of the trust, because on review of the determination on which the motion for a new trial was founded, questions of law only can be brought to the attention of the court Dorchester v. Dorchester, 121 N. Y., 156; 30 St. Rep., 498.

These views lead to the conclusion that the expectant estate of the widow Cordelia was defeasible, and by her death before that of the children it was defeated and if as the consequence the future estate of those children became indefeasible, the inheritance was from them, and in view of the facts as found in respect to the survivorship of one of the children by the other, one-half of the estate upon that assumption descended first to such survivor, and from and through him the whole of it to the parties to this action in the proportion of three-fourths to the defendant and one-fourth to the plaintiff. But whether the descent was from the children, or by means of reversion from the creator of the trust to his heirs, is not essentially a question now here and'therefore is not considered.

The defendant sought to review the determination of the referee by appeal from the interlocutory judgment as well as by motion for a new trial. While the appeal from the judgment to the generalterm was unauthorized, Dorchester v. Dorchester, supra, the motion for a new trial was properly made there. Code, § 1001. The issues were tried before a referee appointed pursuant to consent of the parties in open court. And in such case, it seems that when not otherwise provided by the stipulation, the court must, if a new trial is granted, appoint another referee. Code, § 1011; May v. Moore, 24 Hun, 351; Lennon v. Smith, 47 St. Rep., 483. The interlocutory judgment was by the general term reversed “and a new trial granted at special term.” The plaintiff’s counsel takes the objection that as no review could be had upon the appeal from the judgment the reversal was unauthorized, and that the court erred in directing a new trial at special term. The view taken leads to the conclusion that the defendant'Was entitied to a new trial upon the motion made therefor.

The remaining question is whether by reason of the reversal and the ordering of a new trial at special term, the result here can be other than judgment absolute against the plaintiff.

In Dorchester v. Dorchester it was said obiter that upon the motion for a new trial the general term was authorized “ to reverse the interlocutory judgment.” However that may be, there is no substantial difference in effect between the reversal of it and the setting it aside. The latter would be the consequence of the granting of a new trial. And the plaintiff by motion may have obtained relief from the direction of a new trial at special term and had another referee appointed to hear and determine the issues.

In view of the circumstances the defendant should not have costs.

The order should be affirmed and judgment absolute directed ' against the plaintiff, without costs.

All concur.


author: Parker, J.

text:
    The Hamilton Nat. Bank of Boston et al., App’lts, v. Richard H. Halstead, Impl’d, Resp’t.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    Fraudulent conveyance.
    W. H. hypothecated certain stocks to a trust company to secure a loan, the proceeds of which he paid into his firm, H. H. & Co. ' The firm being about to make an assignment, W. H. transferred the securities so pledged to his son Richard, receiving his check for the amount of the loan, endorsing and returning it to Richard, who delivered the check to the trust company and received the securities, and immediately re-hypothecated them for a new loan to himself of the same amount. Richard afterwards received from dividends and sales of the stock, $11,500 balance, after payment of the loan. Held, that judgment creditors of the firm were entitled to judgment against Richard for the difference between the actual value of the securities when received by him and the loan.
    (Follett, Ch. J., and Landón, dissent.)
    Appeal from a judgment of the general term of the supreme court, first department, entered on an order affirming a judgment after trial at special term.

      George M. Pinney, Jr., for app’lts; William Hildreth Field, for resp’t.

       Modifying and affirming 31 St. Rep., 809.

   Parker, J.

—The judgment among other things adjudged that • a transfer of certain securities made by William M. Halstead to Bichard H. Halstead, on the ilth day of July, 1884, was fraudulent and void as against the creditors of William M. Halstead, individually, and the firm of Halstead, Haines & Co., of which William Halstead was a member.

Sometime prior to the date mentioned, William M. Halstead, the owner of the securities, hypothecated them with the New York Life InsuranceIfe Trust Company, to secure a loan made by it. to Halstead of $65,000. Halstead paid the amount thus received into the firm of Halstead, Haines & Co. Subsequently the firm of Halstead, Haines & Co., and the individual members thereof, being about to make a general assignment for the benefit of creditors, William M. Halstead without any actual consideration transferred the securities so pledged to his son Bichard H. Halstead. Upon the transfer Bichard H, gave to William M. his check for $65,000, which was endorsed by him and then returned to Bichard H., who delivered the check together with an order to the trust company. It cancelled the loan, made delivery of the securities, and they were then re-hypothecated with the same company for said sum of $65,000. No money was paid to either William M. or the trust company. Bichard H. having acquired the title to the stock, an arrangement was made which in effect operated to substitute Bichard H. in the place of William M. as the debtor to the trust company. This was accomplished by cancelling the old loan, and making a new one for the same amount, with a re-hypothecation of the same securities.

As between William M. and Bichard U, the effect of the ' transaction was to transfer the securities charged with' the payment of the loan, which it was originally pledged to secure. He afterwards received from dividends and sales of the stock $76,500, leaving in his hands $11,500, after -payment of the loan. This sum with interest he was by the judgment directed to pay to the plaintiffs, who were judgment creditors of William M. Halstead.

The appellants urge upon this appeal that judgment should have been rendered against him for the full amount of $76,500. That having been a party to a fraud, a court of equity will charge him with the full value of the stock, notwithstanding the larger portion of it was required to pay a valid debt, which it had been pledged to secure prior to the transfer, to a party in no wise connected with the fraud. It is said that this will be done by a court of equity by way of punishment for his participation in the fraud.

While it is true that cases abound where the courts in an action to set aside a deed or transfer of personal property on the ground of fraud have refused to allow the fraudulent grantee or transferee, to be reimbursed the money actually paid as a consideration for the conveyance or transfer, and in the course of discussion have treated the refusal of the court to allow any reimbursement whatever as a proper punishment for the fraud, it has never been assumed, so far as we have observed, that the refusal to allow reimbursement for moneys paid was based on the right of a court of equity to punish the party because of his wrong doing.

The effect of the decisions may have been to punish quite severely the fraudulent grantee or transferee, but the courts did not have the power to deprive him"of one dollar because they deemed him deserving punishment.

If a fraudulent transferee sell the property before the commencement of the action to set aside the transfer, a judgment for the, value of the interest transferred to him may be recovered, but. however scandalous the fraud may be, the courtis powerless to-award judgment against him for a sum exceeding such value.

Other tribunals than courts of equity administer the law which has for its object the punishment of the guilty.

If A. convey to B. his farm, worth $5,000, with intent to defraud his creditors, B. paying him $1,000 at the time of the delivery of the deed, the court in the decree setting aside the conveyance-will refuse to grant him relief, not as a proper punishment for the offense, but because the creditors have an equity equal to the value of the property granted, which should be fully protected as against him who fraudulently sought to despoil it But for the conveyance the entire "property would have been applicable to the payment of the creditors By the fraud it was put beyond the reach of an execution. Because of it a court of equity declares the deed void And to the request of B. that he be allowed the $1,000 paid to his fraudulent grantor a court of equity refuses to listen, because the equity of the creditors embraces the whole of the property, including necessarily the interest represented by the $1,000 paid to A., and it cannot be cut down or interfered with by any payment constituting a part of the fraudulent transaction. But for the misconduct of B., the creditors presumably could have reached the entire interest; therefore the result of it must be borne by him, and not by the innocent party.

Should A. convey his farm to B., subject to a valid pre-existing mortgage of $5,000 held ‘by a third party, and B. subsequently dispose of it for a larger sum, out of the proceeds of which he pays the mortgage, he cannot be required to pay to the creditors the full value of the farm without deducting the amount due on the mortgage; for as to that sum the creditors have no equity.

If the fraud had not been consummated, only the value of the property in excess of the mortgage could have been made available, in payment of the claims of the creditors. As to that interest secured by the mortgage, no wrong was done them. Having no right to such interest, no principle of equity exists on which to found a claim for an appropriation of any benefit, on account of it, from a fraudulent grantee of the equity of redemption. Or, if before B. sells the property the conveyance is set aside . on the ground of fraud, in an accounting for the rents and profits, he will be allowed for interest paid on the mortgage, and for the reason that the mortgage being valid, the property was chargeable with the payment of the interest, as well as the principal, and the creditors were not, therefore, harmed by it This question was carefully considered and passed on in Loos v. Wilkinson, 113 N. Y., 485; 23 St. Rep., 282, the court saying: “Shall he account to the creditors for more rents than they could have received if they had had possession of the real estate ? * * * When the creditors of the grantor come into court of equity seeking to compel him to account for rents and profits, the accounting must been equitable principles; and when he has been compelled to surrender the property conveyed to him, and to account for all the-profits he has made, or could have made, or ought to have made-therefrom, the ends of justice have been completely and exactly attained.” In the same case the fraudulent grantee was allowed for taxes paid, the court saying: “ They were imposed by supreme authority for the benefit of the public, and were inevitable. If the-creditors had taken the property at the time John Wilkinson took it,, they would have been obliged to pay them. By the payment he- didi them no wrong and caused them no prejudice. Why should he: not be allowed them? Hpon what principle of equity or upon what ground of reason, or public policy, or justice, can he be compelled to allow for the gross rents without any deduction whatever for the taxes which he was obliged to pay.”

The principle underlying the decision in Loos v. Wilkinson is exactly applicable and decisive here. As to the $65,000 paid out of the proceeds of the sale in extinguishment of a debt originally created by William M. Halstead, these plaintiffs were; not harmed.

If the transfer had never been made, and the securities had been obtained by them, they would have been subject to the payment of this valid pre-existing debt. It was created in good faith. The proceeds were turned over to the firm of Halstead, Haines & Go. And if appellants’ contention could prevail, then the creditors would in effect recover the $65,000 twice; once through the assets of the firm into which the sum borrowed originally went, and the second time from the fraudulent transferee,, the latter being obliged to pay for an interest which he did not. receive, and to which the creditors would have never become entitled had the transfer not been made. In the language of Judge-Earl, in Loos v. Wilkinson, this “ would be spoliation, not justice or equity.”

The authorities so carefully selected and skillfully presented by the counsel for the appellants, we do not regard as conflicting with-the views so far expressed. In Smith v. White, 27 St. Rep., 227, a general assignment was declared fraudulent, and on the accounting the assignee, because of his being a party to the fraud, vitiating the assignment, was not allowed moneys disbursed in, the-payment of preferences, as provided by the assignment.

In Wood v. Hunt, 88 Barb., 302, the fraudulent grantee, subsequent to the conveyance to him, voluntarily paid the demands which certain creditors of the grantor had against him, and in. the judgment declaring the deed fraudulent and void reimbursement for such sums was refused him.

In Union National Bank v. Warner, 12 Hun, 306, the fraudulent grantee had assumed the payment of certain debts, which the grantor undertook to charge on the real estate by the instrument of conveyance; the deed was adjudged void, and allowance for the obligations assumed denied.

In Davis v. Leopold, 87 N. Y., 622, the fraudulent, grantee; assumed the payment of a pre-existing mortgage, and on review of the judgment setting aside the deed this court said: “ If it was true under the findings that Mrs. Leopold was entitled to protection for the sum paid or the liability assumed, it would indeed be necessary to state the amount. But she was a guilty participant in the fraud, and not to be cared for.” It does not appear from the report of the case, however, that the grantee had paid the mortgage, or that it did not still continue to be a lien on the premises.

The answer denied fraud, and alleged a consideration. It' ¡averred that the conveyance was in payment and satisfaction of a •debt due from the husband, and her agreement to pay certain, mortgages and incumbrances upon the property. Whatever she had agreed to pay for the property, whether in money or by way of assuming the payment of valid incumbrances, formed a part of the fraudulent transaction, and in an action to set aside the conveyance the court would leave the parties in the position in which they placed themselves If the mortgage still continued in force, as we may assume it did, the judgment setting aside the conveyance did not affect its validity, nor the right of the mortgagee to enforce its collection out of the property. The assumption of its payment" by the fraudulent grantee was a burden assumed in her own wrong, the consequences of which the court would not attempt to shield her from.

A very different question' would have been presented had the plaintiffs demanded judgment that she be decreed to pay the mortgage, or. had the property been previously sold, that judgment be awarded against her for the full/value of the premises, and without deducting therefrom the amount secured by the mortgage. ■

In Borland v. Walker, 7 Ala., 269, the grantee agreed to pay certain specified, but unsecured debts of the grantor, and to pay the balance of the purchase price in instalments. The conveyance was set aside, and the grantee refused indemnity for the sums expended.

It will be observed that in the cases cited, with the exception of Davis v. Leopold, to which we have sufficiently alluded, the question was whether a fraudulent grantee could be reimbursed for moneys paid, or agreed to be paid as a part of the fraudulent transaction. To that question but one answer is ever given. The equity of the creditors extends to the full value of the debtor’s interest in the property at the time of the fraudulent conveyance, and the.fraudulent grantee cannot be allowed to cut down or interfere with the interest to which such equity attaches.

But quite a different question is presented where, as heré, the ■creditors undertake to compel the fraudulent grantee or transferee to respond to them for an interest in property which he did not seek to get, and which his grantor or vendor did not have to convey or transfer to him.

In such a case the plaintiffs are without any equity on which ±o base a right of recovery.

The trial court found that on the day of the transfer the securities were worth $500 more than the defendant subsequently realized for them, but a recovery was only allowed for the sum received.

We think the judgment should have been for their value. The defendant wrongfully acquired title to the securities, and if he parted with them for less than they were worth, the loss should fall on him.

The judgment should be modified accordingly, and as modified affirmed, with costs to the appellant.

Bradley, Yann, Haight and Brown, JJ., concur.

Landon, J., dissents from the judgment because it does noti provide for the recovery of the preferred indebtedness paid to the defendant. Follett, Ch. J., dissents.