
    Hugh McFarlane, Jr., Plaintiff and Appellant, v. John Kerr, Defendant and Respondent.
    1. When the owner of land in the City of New York, bounded on one side by high water mark, continues the fences, on his lines running to the water, down to low water mark, to prevent cattle passing around them; this is not such an occupancy or inclosure of .the land between high water mark and low water mark, as will constitute an adverse possession, against the city in whom the title thereto is vested by charter.
    2. Nor is the building of a bulkhead, or the filling in with earth, of a limited portion of the land between high and low water.mark, an improvement of it; nor is the cutting of sedge thereon, under a claim of a custom of the owners of the upland to cut sedge below high water mark, an occupation thereof, such as is necessary to amount to an adverse possession.
    
      4. The corporation of the city'are not estopped from claiming title to land between high and low water mark, by their having designated it for years upon their maps as the property of an individual, and having assessed taxes and the expenses of improvements thereofi as his property, and collected the same from him.
    (Before Bosworth, Ch. J., and Robertson and Barbour, J. J.)
    Heard, December 10, 1862;
    decided, February 21, 1863.
    Appeal from a judgment in favor of the defendant, recovered by the plaintiff upon a trial before Mr. justice Moncrief, without a Jury, in ¡November, 1861.
    The plaintiff sued to compel the specific performance of a contract by the defendant to purchase twelve lots of land on Fourth avenue, between 133d and 134th streets, in the Oity of ¡New York.
    The defendant alleged that the plaintiff’s title was defective, and he therefore refused to complete the purchase.
    A portion of the premises lay below the line of original high water mark, and between high and low water mark of Harlem river, and the question in the case was, whether the plaintiff had title to that portion. To the other part of the land his title was not questioned.
    The premises in question were in the water front of tracts of land which were occupied as farms down to about the year 1838, when they were laid out in lots upon a map conforming to the proposed streets and avenues of the city. A portion of the lots in question were between the line of high and low water mark, which area, by the charters of the Oity of Hew York, belonged to the city corporation and their grantees. The plaintiff claimed by various mesne conveyances and foreclosures, under a deed or mortgage executed in 1838, by Charles Henry Hall, who was the owner of the upland, which deed and all the subsequent conveyances, assumed to convey the lots in question, designating them1 as such. The previous conveyances, under which Hall claimed, described the lands as bounded in this direction by the river.
    It appeared that for many years, the plaintiff and those under whom he claimed, had been designated as the owners of these lots, upon the maps of the city corporation, and had been assessed by the corporation with taxes and with the expenses of improvements, and had paid the same, and the plaintiff claimed that the occupancy of the premises and the payment of taxes and assessments gave him good title, and precluded the city from any claim to the premises.
    The Justice, before whom the cause was tried, found that the plaintiff had not title; and that the defendant was entitled to judgment for the amount which he had advanced upon the contract, with interest, and his expenses in investigating the title.
    The plaintiff took exceptions to these findings, and appealed from the judgment.
    
      Benjamin W. Bonney, for plaintiff, appellant.
    I. The patents by the Royal Governors under the crown of Great Britain, to the freeholders and inhabitants of Harlem in 1666 and 1686, granted to and vested in them title in fee to the lands between high and low water mark of Harlem river, and such freeholders and inhabitants owners of the adjoining upland, have always claimed and exercised rights of ownership in and over said land, between high and low water mark, undisturbed and unquestioned by any person. (See North Hempstead v. Hempstead, 2 Wend., 109.)
    The Sovereign is presumptively owner of the shore of the sea, and of the bed and shore of all navigable streams, where the tide flows and ebbs; but the Sovereign may grant the same, and an individual proprietor may prove title in himself thereto by express grant, or by usage or prescription. (Hale De Jure Maris, chs. 5 and 6; Blundell v. Catterall, 5 Barn. & Ad., 268; Commissioners of Canal Fund v. Kempshall, 26 Wend., 404, 413; Child v. Starr, 4 Hill, 369; 3 Kent’s Com., 427, &c.)
    An individual proprietor under such title, owns and may improve and use the shore, by building or otherwise, for any purpose which does not so affect the channel and navigation of the stream, as to be a purpresture or nuisance, and no structure upon or use of land between high and low water mark on Harlem river can be a nuisance, since the act of April 14th, 1852, and the acts in relation to the harbor commissioners and the proceedings under the same. (Laws of 1852, p. 420, ch. 285; Harbor Commissioners’ Acts and Maps.)
    II. The Dongan and Montgomerie charters gave all these lands between high and low water mark, to the city of Hew York; and “The State of Hew York” has never owned, or claimed to own such lands between high and low water mark, or any part thereof. (Charters of New York; Acts of Colonial Legislature, Davies City Laws, p. 198; and 8 Barb., 291, 292.)
    III. When an adjoining riparian proprietor, or any other person, has, in- any way, by grant or by prescription, acquired title as against the Sovereign to the shore or to the bed of a navigable stream, the same rules of law in relation to the conveyance, possession, and use of such shore or bed, apply to and govern the same, as to any other land or real estate.
    IV. The deed by Myer, executor, to Adriance, dated 10th May, 1787, and that by Lawrence to Furman, dated 26th July, 1804, in legal intendment, include and convey the shore of Harlem river between high and low water mark in front of the parcels of upland in such deeds respectively, described; and, under such conveyances, the grantees claimed, possessed, and used such shore, as their private property. (Child v. Starr, 4 Hill, 369, and opinions and cases cited.)
    V. So also of the deed by Adriance to Hall, dated 27th June, 1825, and that by Furman to Hall, dated 5th July, 1825. (Authorities above cited.)
    VI. The case shows no ground for claim or pretense of title to the premises in question, adverse to the plaintiff, in any other person than “ The City of Hew Yorkand as against the city, and all other persons, the plaintiff has proved perfect title in himself through conveyances in writing, and by adverse possession founded thereon.
    The possession by plaintiff and his grantees, if it were not founded on written instruments, has been sufficien t to bar any claim of title by the city. (2 R. S., 294, §§ 9-12 ; Code of Pro., §§ 82-85; Jackson v. Vermilyea, 6 Cow., 678; Poor v. Horton, 15 Barb., 485; People v. Van Rensselaer, 5 Seld., 291.)
    VII. The title of plaintiff and his grantors has been, for more than twenty years, acknowledged by the City of Hew York, by maps, assessing taxes, and the. award for benefit and damage on the opening of Fourth avenue.
    VIII. There is no allegation or pretense that the City of Hew York or any other person, has ever claimed any title or interest.
    IX. Plaintiff has .shown a good, merchantable title in himself to the whole premises contracted to be conveyed; and the defendant has proved nothing to impeach that title; not even a pretense' of claim by any other person thereto ; the judgment of the Special Term was therefore erroneous and should be reversed; and judgment rendered for specific performance by defendant of the contract in question; with costs to plaintiff. (Story’s Eq. Jur., § 749; Pyrke v. Waddington, 17 Eng. L. & E. R., 534.)
    H. W. Robinson, for defendant, respondent.
    I. The plaintiff was bound to show such marketable title as was free from doubt, and which would secure to the purchaser full and unembarrassed enjoyment of the property. (1 Hilliard on Vendors, 209, 211, 443 ; 2 Id., 15; Adams’ Eq., 258.)
    It is not sufficient that the title be such as would prevail in an action to try the right to the property. (Story Eq. Jur., § 749; Jervoise v. Duke of Somerset, 1 Jac. & Walk., 549; Cooper v. Denne, 1 Ves. Jr., 567; Fry on Specific Per. (84 Law Lib. N. S.), 256 ; Pyrke v. Waddingham, 17 Eng. C. L. and Eq., 539; S. C., 10 Hare., 1.)
    IT. The plaintiff had no title by deed or judgment which assumed to convey the premises to Hall, under whom he claimed. (3 Kent’s Com., 427-432; Halsey v. McCormick, 3 Kern., 297; Lansing v. Smith, 4 Wend., 20; Lowndes v. Dickerson, 34 Barb., 586; Gould v. The Hudson River R. R. Co., 2 Seld., 522; Canal Commissioners v The People, 5 Wend., 448 ; Furman v. Mayor, &c., of N. Y., 6 Seld., 567; Jackson v. Hathaway, 15 Johns., 454; Lawrence v. Delano, 3 Sandf. S. C., 340.)
    III. The facts proved do not show any adverse possession by Hall, or any person holding under Mm. (Emans v Turnbull, 2 Johns., 322; Smith v. Levinus, 4 Seld., 472; Hammond v. Inloes, 4 Maryland, 138; 2 R. S., 294, §§ 11, 12; Corning v. Troy Iron & Nail Factory, 34 Barb., 529; S. C., 22 How. Pr., 212; Revisers’ note, 3 R. S., (2 ed.), 700; Lane v. Gould, 10 Barb., 254; Humbert v. Trinity Church, 24 Wend., 587; Bowie v. Brake, 3 Duer, 35; Jackson v. Frost, 5 Cow., 346; Simpson v. Downing, 23 Wend., 316; Bullen v. Arnold, 31 Maine, 583; Davies’ Laws City N. Y., 539; See Street Opening Act of 1813; 2 R. L. of 1813, 418, § 184.)
    
      IV. The facts proved with a view to establish an adverse possession are insufficient to sustain a title, as between opposing claimants; far less do they show such a clear undoubted, and exclusive possession continuously, for the time necessary to constitute an absolute estate in fee simple, by adverse possession such as would warrant a judgment for a specific performance. (Smith v. Death, 5 Mad., 371; Cotterel v. Watkins, 1 Beav., 361; Pyrke v. Waddington, 17 Eng. C. L. and Eq., 539.)
    V. The judgment in favor of defendant, awarding a return of the money he had advanced upon the contract, with interest, and his expenses of examining the title was correct, and ought to be affirmed. (2 Hilliard on Yend., 15.)
   By the Court—Bosworth, Ch. J.

The plaintiff claims title under Charles Henry Hall, to the premises in question. These premises are on the westerly side of Harlem river, between high and low water mark, or wholly easterly of low water mark.

Charles Henry Hall’s paper title to a part of the premises, (if any he had,) is under a deed from John Adriance, dated June 27, 1825. This deed bounds the premises .which it professes, to convey, “ easterly on the Harlem river.”

The deed under which said Hall obtained whatever of documentary title he has to the residue of the premises, is from Gabriel Furman, is dated June 25,1825, and describes the premises conveyed by it “ as bounded easterly by the Harlem river " and as “including the purchases heretofore made by Gabriel Furman, of William Daivrence, Gabriel Ludlow, Master in Chancery, Peter Meyer and others, and Peter Meyer, containing 40 acres more or less.” The deed from William Lawrence to Gabriel Furman, is dated July 26, 1804, and describes the land which it conveys, as running “ along land of John Adriance, north 88° 10' east, 13 chains and 50 links, to high water mark on the Harlem river; thence along high water marie in Harlem river, north 3° 11' west 3 chains 6 links; thence along the same north 28° 30' west 4 chains and 11 links, to lands of John Meyers,” &c.

These are the only conveyances to Charles Henry Hall, which pretend to vest in him any title to the premises in question. .

The Harlem river, opposite these premises, and for some distance above and below them, is a navigable stream, where the tide ebbs and flows.

These deeds do not convey any title to the premises in question, to Charles Henry Hall. (Gould v. The Hudson R. R. Co., 2 Seld., 522; Furman v. The Mayor, &c., of New York, 5 Sandf., 16; 6 Seld., 567; Halsey v. McCormick, 3 Kern., 297.)

Ho such occupancy by Charles Henry Hall and those claiming under him, is shown, as is requisite to constitute a title by adverse possession.

To constitute an adverse possession, where the claim of title is not founded upon some written instrument or some judgment or decree, apparently transferring a claim of right, there must have been “ an actual continued occupation,” under claim of title, and in such cases only “ the . premises so actually occupied, and no other, shall be deemed to be held adversely.” (2 R. S., 294, § 11; Code, § 84.) In such a case there cannot be said to have been an occupation, unless the land claimed to have been possessed, “ has been protected by a substantial inclosure,” or “ has been usually cultivated or improved. (2 R. S., 294, § 12; Code, § 85.)

Large portions of the premises in question have never been protected by a substantial, or any other inclosure. Hor have they been cultivated; nor has any part of them been improved, unless the parts on which bulkheads have been erected, or those parts which have been filled in with earth, may be said to have been thereby improved.

The fact that on the lines of the land running easterly to the river, fences were continued down below high water mark, (or even below low water mark, if that was in truth done,) for the purpose of preventing the passage of cattle upon the upland, is not of itself such occupancy as the statute declares to be indispensable, nor does it amount to an inclosure of the premises. On the easterly side, (the Haflem river,) there was no fence or erection, either on the line or within the waters of the Harlem river. There was, therefore, not only the absence of any substantial inclosure of the whole premises, but there was not in fact an in closure of any kind.

There was no occupation, except of the limited portions covered by bulkheads, filled in with earth, unless the cutting of the sea weed amounts to an, occupation.

One witness (Peter Randel) says that “ we fished on the Adriance property, three or four different seines; the fishermen came up on the upland, and had their fishing houses on the upland; they quit fishing about the time Mr. Hall bought; they had done this as long as I can remember, from the time I was a boy.” He had lived on the Adriance property from 1814 to 1825. He says “I used to cut sedge that grew on land between high and low water mark, to make manure.”

He says “ the custom has been for the person owning the upland, to cut the sedge growing in front of his premises.”

The testimony of the other witnesses in respect to cutting sedge is substantially the same. This shows that they claimed the right to cut the sedge as owners of the upland, and not as owners of the land on which the sedge grew. (See Emans v. Turnbull, 2 Johns., 313; and Smith v. Levinus, 4 Seld., 472.)

There is, therefore, no just ground for the claim that the plaintiff .has shown himself capable of conveying to the defendant, an unincumbered title in fee simple to the premises, unless he has shown that the title was in the Mayor, Aldermen and Commonalty of the City of Hew York, at the time of the aforesaid conveyances to Charles Henry Hall, and that the latter is now estopped, by facts proved, from denying the plaintiff’s title.

The Dongan charter, dated April 27,1686, conveys to the Mayor, &c., “ all the waste, vacant, unpatented, and unappropriated lands lying and being within the said City of New York, and on Manhattan’s Island aforesaid, extending and reaching to the low water mark,” &c.

The Montgomerie Charter, dated June 15th, 1730, recites and confirms the former patent.

In 1838, the premises in question were assessed for taxes to Charles Henry Hall, for the taxes of that year, and he paid them.

In 1849, and since, they have been assessed for taxes, and the taxes have been paid by Mr. Hall, or those claiming under him, and during this period they were assessed as the property of the person, claiming title at the time of such assessment.

No law has been cited which declares that assessing lands for taxes, as being the property of a particular person, and the payment by such person of the taxes so assessed, for the period during which that was proved to have been done in respect to the premises in question, or for any period of time, shall divest the true owner of his title, and vest it in the person paying the taxes thus assessed.

It is not one of the modes specified in the statute, by which one having no title, can acquire a good title. In Rose v. Klinger, (8 Watts & Serg., 178, 180,) it is said that the payment of taxes for several years by one claiming title, is not evidence of title, though it may be some evidence of the extent of his claim.

We think that the exceptions taken to the decisions of the Court at Special Term, are untenable, and that the judgment should be affirmed, with costs.  