
    Inter City Realty Company, Appellant, v. Harriet M. Newman and Charles F. Newman, Respondents.
    Second Department,
    October 9, 1908.
    Real property — partition.—when land under water passes appurtenant to lands described — when deed conveys fee of proposed street—trial — admission that issue is immaterial.
    Where the complaint in an action for partition by heirs does not describe abutting lands between high and low-water mark and lands under water granted by the State to the former owner, but alleges “ that the- parties do not own any other land in common,” which fact is found by the referee, the judgment in partition estops the heirs and their privies from thereafter asserting that the lands between low and high-water mark and the lands under water did not pass under the referee’s deed, for though not specifically described, they passed as appurtenant to the lands partitioned.
    It is an elementary rule that where there is any ambiguity or uncertainty in a deed, the position of the party in possession thereunder is the stronger and every uncertainty must be resolved in bis favor.
    Thus, although a deed bounds lands on the lines of proposed streets which were never opened or used, the description is nullified as a limitation where the same instrument conveys by lot number as shown on a map on file and includes the east half of one of the proposed streets and the whole of the other.
    Such deed is effective to vest a grantee, who has since maintained possession, with title to the streets.
    Where counsel, having asked to go to the jury on a certain question, admits that it is immaterial, it is not error for the court to refuse to submit that issue, especially where it is not raised by the complaint.
    Appeal by the plaintiff, the Inter City Realty Company, from certain portions of a judgment of the Supreme Court in part in favor of the defendants, entered in the office of the clerk of the county of Richmond on the 4th day of April, 1907, upon the verdict of a jury rendered by direction of the court.
    
      A. B. Widdecombe [Philip Carpenter and L. W. Widdecombe with him on the brief], for the appellant.
    
      William Allaire Shortt, for the respondents.
   Rich, J.:

This is an action of ejectment in which the right to possession of six parcels of land, separately described in the complaint, is involved. At the close of the evidence the trial court directed a verdict in favor of the plaintiff as to three parcels and for the defendants as to three parcels. From so much of the judgment as adjudicated that the plaintiff was not the owner in fee and not entitled to the possession of parcels 4, 5 and 6, this appeal is taken.

The defendant Harriet M. Newman is the owner óf a lot numbered 16 on a map of “ Lawrence Park.” The lot is on the corner of Maple avenue and Shore avenue. The latter avenue extends along the top of the bank ad jacent to the Waters of New York bay. This avenue was never opened or used as a street.

Parcel No. 4 described in the complaint is the land lying in Shore avenue in front of said lot No. 16, and the land from the top of the bank, which is the south side of the avenue, and the water of the bay, on which Mrs. Newman has erected and maintains a flight of steps, arbors and a runway leading from her lot to the water.

Parcel No. 5 is the laud under water in front of lot 16 on which she has erected a pier extending 410 feet into the bay, and parcel No. 6 is the land on the beach abutting on the water and between it and the top of the bank, partly in front of lot No. 16 and partly within the lines of Maple avenue if prolonged from the top of the bank where it now ends to the waters of the bay, on which the defendant has erected and maintains bath houses.

In 1867 one William H. Aspinwall became the owner in fee of a parcel of land which included the land in controversy, its southern boundary being “ the bay or beach ” of New York bay. His deed contained the following clause : “ And also all the right, title and interest of the party of the first part of, in and to the bay or beach in front of said premises and the land under the water so far as the rights .of the said party of the first part extend.” In May, 1881, Aspinwall’s executors conveyed the premises to Lawrence R. Kerr, Sr., the deed containing a clause in the following words: “ Also, all the right,- title and interest of-the said William H. Aspinwall, dec’d had at the time of his decease, of, in and to the Bay, or land under water in front of the said premises.”

In December of the same year Kerr obtained a grant from the State of New York of the lands between high and low-water mark and under the water, “adjacent to and in front of” his premises. Kerr died in December, 1888, testate, his wife being his residuary legatee, and the title to said lands, both upland and under water, vested in her. She died intestate in 1891 seized of the property so devised to her, leaving a number of heirs, one of whom commenced an action for the partition of that portion of the premises of which she died the owner. That was known after 1894 as Lawrence Park,” in which action the decree and referee’s deed described the upland and shore and water rights in the same language used in the deed from Aspinwall’s executors, to Kerr, Sr., and did not specifically mention the land under water, or between high and low-water mark, which the latter obtained from the State and of which he died seized.

Lawrence R. Kerr, Jr., purchased the property upon the sale made in the partition action, and in 1894 had the land platted and laid out in lots, streets and avenues, and a map made thereof, which was filed, on which he designated the property as “ Lawrence Park.”

The title of the defendant Harriet M. New man to lot No. 16 appearing on said map and consequent right to the possession of the lands as to which she has recovered, are based upon deeds from Kerr, Jr., to one ,Sejalon in 1900, who conveyed to Le Moult in 1902 and the latter to defendant in 1903. Each of these conveyances described the premises by metes and bounds, their westerly line running along the easterly side of Maple Avenue ” and the southerly line along the northerly side of Shore Avenue,” as well as by the lot and block number, appearing on the map referred to, and includes all riparian rights of the grantor appertaining to and belonging to and being appurtenant to ” the described premises. It is beyond question that the description of the premises and rights conveyed, and rights in the mortgage hereinafter referred to, is sufficient to pass the title to the beach and lands under water in front of the premises conveyed if Kerr, Jr., acquired title thereto by his deed from the referee in the partition action. Each of these deeds is made subject to a mortgage upon the premises assumed by the grantee, and in the mortgage following the description of the property by its map, lot and block number is the following clause: “ together with all the right, title and interest of the parties of the first part hereto, of, in and to the roads or highways in front of and adjoining said premises and all the right, title and interest of -the parties of the first part hereto, of, in and to the New York Bay and all the lands under water in the. said Rew York Bay in front of said premises.”

The plaintiff derives title to all of “ Lawrence Park ” not heretqfore conveyed, through deeds from Lawrence Kerr, Jr., dated August 8 and 10, 1904, to the United Contractors’ Corporation which conveyed to plaintiff in December of the same year. The rights to the land under water in front of defendants’ premises are under a deed in which the heirs of Mary Kerr, deceased, widow of Lawrence R. Kerr, Sr., united to said United Contractors’ Coloration and one from it to the plaintiff executed October 24, 1905, by which all lands under water in front of the entire Park ” are conveyed in the language of the grant by the State to Lawrence R. Kerr, Sr.

The plaintiff’s contention as to the lands underwater and-the beach is that they did not pass to the grantee under the referee’s deed in the partition action -upon Avhich defendant’s title and right of possession are based, because they were not included therein ; that defendant’s title is limited by the specific description in her deed to land lying east of Maple avenue and north of Shore avenue. The learned trial justice refused to assent tq this contention, and I think he was clearly right. The title and right to possession to both the upland and land under water, including that between high and low-water mark, Avas in Lawrence R. Kerr, Sr., at the time of his death, and passed by devise to his widow and upon her death to her heirs,.' and although not specifically mentioned or described in the referee’s deed it passed, under such deed to Kerr, Jr., as an appurtenance. (Archibald v. N. Y. C. & H. R. R. R. Co., 157 N. Y. 574, 579.) That it was the intention of the heirs that it should is made clear by the averment of the complaint “ that the parties do not own any other land in common,” and this the referee found to be correct. The effect of this adjudication was to estop the heirs of Mary Kerr and their privies from thereafter asserting that the description of the land under water did not include the land under water owned by Kerr, Sr., at the time of his death. (Mott v. Eno, 181 N. Y. 371.)

The fact that the rights of Aspinwall in the land under water at the time of his death were specifically mentioned in the complaint, decree and referee’s deed, undoubtedly arose from lack of knowledge on the part of the attorney that Kerr, Sr., had acquired additional rights, after receiving the conveyance from, the executors of Aspinwall, but this fact did not exclude the land and right granted Kerr, Sr., by the State, of which he died the owner, and the omission to specifically refer to or describe such land and rights owned by the parties as the heirs of Kerr’s widow did not operate to prevent their passing under the referee’s deed to the grantee therein named, as an appurtenance to the upland described in the conveyance.

As to the land lying within the avenue lines as laid down on the map, it is an elementary rule that where there is any ambiguity or uncertainty in a deed the position of the party in possession is the stronger, and every uncertainty must be resolved in favor of the grantee, and it must be held that the reference in the deeds to the existing avenue lines as shown on the map is nullified as a limitation by the description in the same instrument of the premises conveyed by lot and block number on the map of “Lawrence Parle,” and the east half of Maple avenue and the whole of Shore avenue (it never having been opened or used as a street and being on the margin of the property conveyed and between it and the beach of the bay) passed from Kerr to his grantee, Sejalon, and through the grantee of the latter to defendant Harriet M. Newman. (See Mott v. Eno, 181 N. Y. 346; Graham v. Stern, 168 id. 517; Trowbridge v. Ehrich, 191 id. 361; Haberman v. Baker, 128 id. 253 ; Johnson v. Grenell, 188 id. 407.)

The plaintiff- complains of the ruling of the trial court in denying his motion for leave to go to the jury on the question of where high-water mark was and whether there was a strip of land between the shore and high-water mark at the times stated in the motion. The record shows that in. answer to the question by the court, “ What is there to submit to the jury here ? ” its counsel answered, “ I don’t know any question in particular, except it is the question of high-water mark, and in my opinion I think that is immaterial.”

It was not the duty of the trial justice to submit to the jury an immaterial question of fact, and in addition there is no allegation in the complaint that such a condition existed and no claim that the action was brought to recover possession of such a strip of land. Defendant’s deed was made with reference to the map of “ Lawrence Parle,”- which shows nothing between Shore avenue and the bay, and the plaintiff as a privy of Kerr is not permitted to dispute the natural boundaries shown upon the map, (Dev. Deeds, §§ 1020-1022.)

The judgment must be-affirmed, with costs.

Woodward, Jenks, .Gaynór and Miller, JJ., concurred. Judgment affirmed, with costs.  