
    Hugh McRoberts, Resp’t, v. Henry S. Bergman et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 8, 1892.)
    
    1. Ejectment—Title—Possession.
    In an action of ejectment for a piece of salt meadow and the beach in front thereof, plaintiff proved a chain of title extending back to grants from the crown of Great Britain and proved that one of his predecessors had cut grass from the meadow every year and had used the beach both for fishing for food fish, for the market, and for fertilizing purposes, that he had stakes and poles driven there and out into thp water to support his fish nets and had driven pif trespassers. Held, that the evidence showed that plaintiff’s predecessor had possession of both beach and meadow,_ and the presumption is that these acts were acts of possession under the rights granted him by deed, and a continuation of the like possession by his father under the same title.
    3. Same.
    Plaintiff also proved that for over twenty years he had taken sand from the beach and sold it, about 250 loads each year, and had cut and disposed of the grass upon the meadow. Held, that plaintiff had the better title in respect of the right of possession.
    3. Same—“Sea beach.”
    The word beach denotes land washed by the sea, and in the absence of qualifying words, a boundary by ocean beach extends to highwater mark.
    Appeal from a judgment of the general term, second department, affirming a judgment in favor of the plaintiff, entered upon a verdict upon the trial at the Richmond county circuit.
    The action was ejectment for the recovery of premises in the town of Southfield, on the southerly side of Staten Island, described in the complaint, alleged to contain 8 83-100 acres, consisting of a salt meadow and the beach and shore in front thereof, lying next the waters of the lower bay. of Hew York. The answer contained a general denial, alleged title in the defendants by adverse possession, and that plaintiff’s alleged title was void for ■champerty. At the close of the testimony the defendants amended their answer by leave of the court and abandoned claim to the salt meadow, and limited their defense to the sand beach or shore in front thereof, being a strip of land about 940 feet in length along highwater mark and about 240 feet in width. Upon this strip the defendant, Henry Bergman, had made valuable improvements at an expense of about $11,500. Further facts are stated in the opinion.
    
      E. Louis Lowe, for app’lts; Wm. M. Mullen, for resp’t.
    
      
       Affirming 32 St. Rep., 1111.
    
   Landon, J.

The defendants claimed title by adverse possession, but rested their defense mainly upon the proposition that the plaintiff did not show title in himself, first, because he did not have a paper title covering the sand beach; second, because his grantors were not shown to have been in possession of the premises as owners; third, because plaintiff’s possession added to that of his grantors was insufficient either in time or character 4o establish title by adverse possession, whether founded upon a written instrument or otherwise; fourth, that his alleged paper-title was void for champerty.

There was some evidence tending, to support the verdict even if it should be held that under the charge of the learned trial judge it was solely dependent upon a title acquired by the adverse-possession of the plaintiff and his grantors not founded upon a written instrument. The charge in this respect was favorable to-the defendants, no valid exception was taken to it; the general term has affirmed the judgment; the trial court was not asked to-hold, as a matter of law, that the evidence was insufficient to-justify a verdict upon that ground, but was simply asked to non-suit the plaintiff upon several grounds; a motion which was-properly denied because the plaintiff might recover upon other grounds. Ho question of fact upon this point is open to our review, and although the evidence in support of such a title seems to us to be meager, we cannot reverse upon that ground.

The defense of champerty was plainly destitute of merit. The charge of the trial court was equally favorable to the defendants,, and no exception is presented upon this branch of the case which avails to reverse the judgment.

In his main charge the learned trial judge submitted the case to the jury upon the sufficiency of the evidence to establish title in the plaintiff by adverse possession, exclusive of a claim of title founded upon a written instrument, and also upon the sufficiency of the evidence to sustain the defense of the alleged invalidity of the plaintiff’s paper title because of champerty.

The plaintiff claimed title under deeds of the locus in quo given him by the widow and heirs of William H. White in 1875. He gave evidence, which we shall presently consider, tending to show that his grantors had title. The defendants relied upon a deed given to the defendant Sarah A. Burke by Ann Stillwell and Joseph Tucker in 1873 purporting to convey a portion of the premises described i'n the complaint, and they attempted to prove that at the date of the deed to plaintiff she was in possession of the premises, claiming and holding them adversely under the deed to her. This was the ba’sis of the defense of champerty. The evidence disclosed its fictitious character; it was, as already stated, disallowed by the jury; we refer to it to show that, notwithstanding the limitations of the main charge of the learned judge, the fact that the plaintiff’s claim of title was founded upon a written instrument, and that the defense was directed to the-impeachment of title thus founded, was present to the minds of the jury throughout the trial. Two of the defendants’ requests to charge were addressed to the effect of the description contained in the plaintiff's deed, and a third request was addressed to itschampertous character.

The court refused to charge as requested by the defendants’ counsel, that the description contained in the deed to the plaintiff did not include the sandy flat above high water mark, that is, the locus in quo.

The court, at the request of plaintiff’s counsel, then charged that said description did include the land to high water mark. The defendants’ counsel excepted to both refusal and charge. The-defendants’ counsel requested the court to charge that the plaintiff, under his deeds, is not entitled to recover 8 83-100 acres, but only five acres, one rood and six perches. " This the court refused, and defóndants’ counsel excepted. Since- the court had, in effect, instructed the jury that they could not find a verdict for the plaintiff’ upon his alleged paper title, if the defendants then, by their requests, induced the court to give it a construction, and thus lead the jury to suppose that they also could consider it, this implied change in the instruction of the court would be of the defendants’ procurement, and not a ground of reversal of the judgment against. them. Nevertheless, the general term, as its opinion states, held that the plaintiff proved his paper title to be good. It may be that the jury placed their verdict upon that ground. The counsel for the respective parties invite ns to examine the question. We. therefore, have examined the evidence adduced in support of it. The result is the conclusion that the plaintiff did prove a clear prima facie title to the locus in quo ; that apart from the evidence-bearing upon the defense of champerty which the jury properly disposed of, that title was in no way impeached.

In 1875 the plaintiff obtained deeds of the locus in quo from the widow and heirs of William H. White. John S. Keteltas conveyed the premises to White in 1847. John S. Keteltas, under the will of his father, Stephen Keteltas, who died in 1845, obtained whatever title Stephen had in his lifetime. Stephen was the son of Captain John Keteltas, who died in 1780, and whatever title Captain John had in his lifetime became vested upon his death in Stephen.

The plaintiff read in evidence a deed given in 1756 to Captain John Keteltas by the executors of the will of Jacob Berge of two-parcels of land, containing respectively eighty-one acres and forty acres; following the description of the forty acres, the description continued: “And also a little lot of salt meadow at Eagle’s nest point, on the west side of Peter Nowll’s land, to the said lot of land belonging or appertaining.”

The deed of 1847 from John S. Keteltas to William H. White purports to convey a piece of land commonly called “the little salt meadow ” in the town of Southfield, “ bounded northeasterly by salt meadow of Peter Jacobson; northwesterly by the water course known as New Creek; southwesterly by salt meadow land of J. L. Flake; southeasterly by sand beach or shore, containing five acres, one rood and six perches, as surveyed in October, 1846, by C. H. Blood. And also all the right, title and interest of the party of the first part, which he now has or ever had, and which was owned and enjoyed by Stephen Keteltas, deceased, .luring his lifetime, of, in and to the beach, shore and waters of the bay in front of the said described premises hereby to be conveyed.”

Stephen Keteltas died in 1845 seized of the eighty-one and forty acres described in the deed of 1756 to his father. They composed part of the homestead farm upon which he always resided. The salt meadow and beach described in the complaint ■and in the deed of 1847 to White lie near to this farm, and were used in connection with it

The salt meadow mentioned in the deed of 1756 is identified with the locus in quo if the words of this description, “ to the said lot of land belonging or appertaining,” refer to the lot of forty -■acres immediately theretofore described in the same deed, as they probably do: But the possession of Stephen Keteltas of the salt meadow and beach in front, as well as of the adjacent eighty-one and forty acres, dates from the earliest memory of witnesses, was as complete as the character of the land and the uses to which he chose to devote it rendered practicable, and was of unchallenged ownership. His title to the eighty-one and forty acres has never been questioned. Upon the trial the defendants disclaimed all ■denial of the plaintiff’s title to the salt meadow, and only insisted upon their denial as to the sand beach. At the close of the testimony they amended their answer accordingly. The identification •of the salt meadow described in the deed of 1847 with that described in the deed of 1756 is thus partly conceded, is substantially established, and is the more conclusive since there, is no ■evidence tending to show the practical location of any other salt meadow as answering the calls of the earlier deed. The evidence •shows that Stephen Keteltas had possession of both beach and meadow.

Together they formed a single lot, bounded by the sea in front, by a creek in the rear, and by a ditch on each side about three feet in depth. Between the meadows and the beach there was no artificial boundary; The sea during living memory has been encroaching upon the land and witnessess testified that where the beach once was the sea now is, and that what was once part of the ■salt meadow is now the sand beach. The boundary ditches along -the meadow land were open and well defined. They extended in a straight line across the beach to the sea, but on the beach the ■shifting sand usually filled them, and 'Stephen Keteltas occasionally reopened them. • Such ditches are the customary boundaries of such lands upon the island. Stephen Keteltas cut the grass upon the sale meadow every year, and used the beach for fishing both for food fish, for the market, and for fertilizing purposes. He had stakes and poles 'driven there and out into the water to ■support his fish nets. Occasionally trespassers came upon the beach for sand and he forbade their taking it and caused them to ■go elsewhere. ■ Within the case of Roe v. Strong, 119 N.Y., 316; 29 St. Rep., 504, these acts of ownership must, under the circumstances, be referred to the exercise of the right purporting to be granted by the deed of 1756 and not to any usurpation. The presumption is that these acts were acts of possession under that deed, and in the absence of any opposing evidence, that Stephen Keteltas’ possession was the continuation of the like possession of his father under the same title from its date in 1756. Jackson v. McCall, 10 Johns., 377.

There is no evidence tending to rebut this presumption. The ■defendants* insist that the deed of 1847 to White does in terms convey the salt meadow but does not in terms convey the beach, but only all the right, title and interest of the grantor John S. Keteltas and such as his father had therein.

A grant of a salt meadow separated from the sea only by a beach formed by the sand thrown by the waves upon the meadow itself, ought not, in the absence of evidence of the public reservation or of a hostile grant to another, to be construed, to use the-words of the opinion in the case cited, “ to cut him (the grantee} off from access to the water over his own land.”

The word beach denotes land washed by the sea, and in the absence of qualifying words, a boundary by the ocean beach extends to highwater mark. Trustees of East Hampton v. Kirk, 68 N. Y., 459; People ex rel. Burnham v. Jones, 112 id., 605; 21 St Rep., 820.

The practical location of the lot within the boundary ditches extending to highwater mark is not inconsistent with the language-of the description of the salt meadow in the deed of 1756. The-usage of parties under an ancient grant aids-in construing its obscure terms. Trustees of Brookhaven v. Strong, 60 N. Y., 56—72. The additional words of the deed of 1847 “ of all the right, title and interest of the party of the first part in and to the shore and water of the bay in front of said described premises,” are satisfied by referring them to whatever rights the grantor intended to convey below highwater mark.

The presumption is that when Stephen Keteltas died in 1845 he was seized of the locus in quo as owner deriving title under the deed given to his father in 1756. His possession was peaceable, exclusive, notorious and unchallenged ; it ascended beyond present memory, and was referable to the deed of 1756. It is not. shown to be referable to any other source. He had at least prima facie title. Mayor of N. Y. v. Carleton, 113 N. Y., 284; 22 St. Rep., 625. His son John S. Keteltas, succeeding to his title and possession, conveyed to William H. White in 1847. White th us acquired a prima facie title. Stevens v. Hauser, 39 N. Y., 302. Such a deed suffices if not overcome. It affords sufficient presumptive-evidence of the subsequent possession of the grantee and those holding under or through him unless actual proof of an adverse-possession for twenty years be made. Code Civ. Pro., § 368; Thompson v. Burhans, 79 N. Y., 99; Bliss v. Johnson, 94 id., 235. Ho such proof was made.

The plaintiff must recover upon the strength of his own title; not upon the weakness of that of the defendant. But he measures his title with that of the defendant, and if it is better in respect of his right of possession, he prevails because of its sufficient strength. Dunham v. Townshend, 118 N. Y., 281; 28 St. Rep., 864; Carleton v. Darcy, 90 N. Y., 566; Thompson v. Burhans, supra; Clute v. Voris, 31 Barb., 511; Jackson v. Hubble, 1 Cow., 613; Onderdonk v. Lord, Hill & Denio, 129; Whitney v. Wright, 15 Wend., 171; Hunter v. Starin, 26 Hun., 529.

Upon the facts already stated the plaintiff had the better title in respect of the right of possession.

The plaintiff himself as tenant under White from 1863 to 1875, and as owner from 1875 to 1885 took sand from the beach .and sold it, to the extent of about 250 sloop loads each year. The business was continuous throughout the year. He also disposed -of the grass upon the salt meadow, either cutting it himself or permitting others to do so. This possession was open, notorious and, except as improperly resisted by the defendant, Sarah A. Burke, was exclusive. Thus there was no abandonment for twenty years of the possession and dominion of the premises under the title presumed to have originated in 1756, but it was practically continuous during living memory. It is proper to add that the deed of 1756 by its recitals purports to deduce title from •colonial grants made in the previous century. While these recitals are not evidence against strangers to this title of the facts incited, Hardenburgh v. Lakin, 47 N. Y., 109, they are evidence that the grantors and grantee in the deed of 1756 made a claim of title, and they thus characterize Captain Keteltas’ original entry. There are no other exceptions which require discussion.

The judgment should be affirmed, with costs.

All concur.  