
    Edward Roberts, App’lt, v. August Baumgarten et al., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    1. Ejectment—Title to land under water where tide ebbs and SLOWS BELONGS TO THE PEOPLE. •
    On the trial of an action "brought to recover the possession of certain lots of land, it appeared that the premises in question were originally-covered by Harlem Mill creek, a small body of water in which the tide ebbed and flowed. There was also evidence tending to show that it was actually used for purposes of navigation to some extent. The plaintiff relied upon a deed, as a source of title, which conveyed “All that messuage or tenement being all my estate to the north of the mill pond, between the fence * * and the road, * * * including the mill stream and mill and mill pond, with all its privileges and appurtenances, and to shut the mill dam at the south side of said mill pond where it now lays,” etc. Held, that the title to the land under the water of said creek belongs to the people, and that the grantor in said deed could not convey it.
    2. Same—Description in deed—Construction of.
    The grantor in said deed did not intend to convey the whole stream which was known as Harlem creek, but only the use of, or easement in, its waters for mill purposes, as the same had been acquired by him and developed by the construction of the dam, the sluice-ways, the connecting canals, etc. The right “to shut the mill dam” mentioned in the deed negatives the idea of any intended conveyance by the grantor of the whole creek.
    3. Same—Plaintiff must recover on strength of his own title.
    In an action of ejectment the plaintiff must recover upon the strength of his own title, and he cannot rely on any supposed or actual weakness of his adversary’s title. The fact of title in, or of possession by those under whom the plaintiff claims must be shown; otherwise he has failed to show any cause of action, and consequently any reason for requiring the defendant to defend his possession.
    Appeal from a judgment of the general term of the superior court of the city of Hew York, reversing a judgment in favor of the plaintiff, entered on findings and conclusions by a judge trying the action without a jury by consent. The facts will be found in the opinion.
    
      John Lindley, for app’lt; Cephas Brainerd, for resp’ts.
   Gray, J.

This action was brought to recover the possession of certain lots of land, on the southerly side of One Hundred and Seventh street, between Second and Third avenues, in the city of Hew York. Originally the premises in question, under plaintiff’s claim, were covered by Harlem Mill Creek, a small body of water connecting with the Harlem river, and'in which the tide ebbed and flowed. To the east of where the Third avenue now is, a dam was constructed to collect water for mill purposes, and " by means of sluice ways and connecting ponds, the water power was conducted to a mill east of Third avenue and north of the creek.

The plaintiff claims to derive his title, through mesne' conveyances, from one Benjamin Benson. Benjamin Benson’s deed to Peter B. Benson, his son, which was relied upon by the plaintiff as a source of title, conveyed by the following description, viz.: ‘‘All that messuage or tenement being all my estate to the north of the mill pond, between the fence of the widow Storm and the road leading to Harlem, including the mill stream and mill and mill-pond, ■ with all its privileges and appurtenances, and to shut the mill dam at the south side of said mill pond where it now lays, -etc.”

Under this description, plaintiff claims that the whole of Harlem Mill Creek, between the tops of its banks, was conveyed, and that the grantee acquired the ownership of the bed of that stream.

Such a construction of the grant, however, is not permissible, either by well settled rules of law, or in the light, which the facts, disclosed by the proofs, throw upon the claim. Harlem creek was subject to the ebb and flow of the tide to a point beyond the premises in question. Such bodies of water, at common law, were deemed to be navigable and held to be royal rivers, or the property of the crown. They were placed on the same footing as the sea and regarded as public highways. This rule of the common law became a part of the fundamental law of this state, by the adoption of the original constitution of 1W. There have been no revisions of that instrument, or any acts of the legislature, which in any wise affected the continuance of such a rule as a part of the body of the law of our state, and as one which governs in cases where the rights of riparian owners to waters, subjected to tidal influences, are in question. To the rights of the crown, the people of this state succeeded upon their separation, and the title to the lands under water, where the tide flows and reflows, vested and remained in them. This rule has been uniformly recognized in the adjudged cases in the reports of this state, which discuss the title of the people to such lands.

The courts in this country have gone further and have not felt bound by the distinction that the flux and re-flux.of the tide is the controlling element in determining the character of our bodies of water. The reasons which dictated the rule in England, where navigability of its waters depended upon tidal influences, were plainly inapplicable to our large inland rivers and lakes.

An elaborate and instructive review of the adjudged 'cases and of the doctrine laid down in the text-books, and by publicists, upon the subject of the rights of property in rivers and the lands under their waters, is contained in the case of The People v. The Canal Appraisers, 33 N. Y., 461.

In addition to the presumption of the navigability of Harlem creek, arising from the proof of the flux and re-flux of the tide therein, the testimony tends to prove the fact that it was actually used for purposes of navigation, to some extent. • The words of the grant in the deed mentioned, therefore, would not convey any land beyond high water mark of the creek; for there Benson’s right of property in land ended.

But from the facts disclosed by the proofs, I think that the grantor should not be deemed to have intended the con: veyance of the whole stream which was known as Harlem creek. He describes the property granted as his “ estate to the north of the mill pond” and including “the mill stream and mill and mill pond, with all its privileges and appurtenances, and to shut the mill dam at the south side of said mill pond.” His language is to be construed, not as conveying the stream known as Harlem creek, but only the use of, or easement in its waters for mill purposes, as the same had been acquired by him and developed, by the construction of the dam, the sluice ways, the connecting canals, etc. I think that the right “to shut the mill dam,” mentioned in the deed, negatives the idea of any intended- conveyance by the grantor of the whole creek. It forcibly suggests what the grantor covered by his language. The control of the mill-dam was the control of the mill stream, or water power, which he had created and by which the mill was operated; and viewed in that light, the grant is seen to be but the conveyance of water privileges, without which the mill property would be less valuable.

The appellant, however, argues that Peter B. Benson, the grantee in the deed mentioned, went into possession of the property in controversy, which lay to the south of the creek, and urges that proof of that fact is found in the testimony of Mrs. "Van Arsdale, an aged woman, and a daughter of Peter B. Benson, who was called as a witness. The learned trial judge found as a fact that Peter B. Benson had possession of the premises described in the complaint; but I think the evidence does not sustain that finding.

The act of possession relied upon was the cutting of the salt meadow grass on both sides of the creek; which the testimony of Mrs. Van Arsdale, the witness referred to, was supposed to prove. Her testimony is not at all clear; but what can be fairly gathered from it is, that her family cut the grass on the borders of the mill steam, or sluice ways. She says that they did not cut on the Hew York (or south) side of the creek. While it is difficult to understand her testimony on this point, it is not possible to find from it, as a fact, that her father ever had possession of any lands south of the creek and consequently of any of the land in controversy. I do not think that an occasional resort to lands, such as what was attempted to be shown in this case in the cutting of grass by Peter B. Benson, would be sufficient to prove occupancy or possession, in the absence of a deed describing and including the land where such an act was performed.

It is not proven here that there was any actual occupancy or pedis possessio, which was either definite or notorious; and without color of title in, or occupancy by plaintiff’s grantors, his claim utterly fails.

_ In my judgment the plaintiff has not proven any foundation, or origin of title, in appropriation or possession, as he has failed to prove that the premises were ever granted to Peter B. Benson from whom he claims to derive his title. The rule is well settled by frequent decisions that in an action of ejectment the plaintiff must recover upon the strength of his own title and he cannot rely on any supposed or actual weakness of his adversary’s title. The fact of title in, or of possession by those under whom the plaintiff claims, must be shown; otherwise he has failed to show any cause of action and consequently any reason for requiring the defendant to defend his possession.

The opinion at general term was well expressed and any further elaboration of our views is not called for by the brief of the appellant’s counsel.

The order of the general term, appealed from to this court, should be affirmed with costs and, under the stipulation contained in the notice of appeal, judgment absolute is awarded against the appellant.

All concur.  