
    Blakslee Manuf’g Co. v. Blakslee’s Sons Iron-Works.
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1891.)
    1. Ejectment—When Lies—Grant from State.
    Ejectment may be maintained for land granted by the state to plaintiff and in the possession of defendant.
    2. Riparian Rights—Land under Water.
    Where a riparian owner conveys his land he cannot reserve any right to the adjacent land under the water, of which he has received no grant from the state. The grantee becomes the riparian owner, and as such is entitled to apply to the state for a grant of the land under the water.
    Appeal from circuit court, Westchester county.
    Ejectment by the E. G. Blakslee Manufacturing Company against the E. G. Blakslee’s Sons Iron-Works. There was a judgment for plaintiff and defendant appeals.
    Argued before Barnard, F. J., and Pratt, J.
    
      Francis Larkin, for appellant. Taylor & Parker, for respondent.
   Pratt, J.

This is an action of ejectment for land at Sing Sing under a grant from the state to plaintiff March 18, 1889. The locus in quo is land under water. Defendant is in possession of part of the premises covered by this grant. Ejectment is, nevertheless, the proper remedy, and, generally speaking, a grant from the state will support the action. The grant is presumptively regular, and creates presumption that the patentee was the owner of the adjacent upland. Defendant alleges that this grant to plaintiff is void, on the ground that it was not the owner of the adjacent upland when it was made. Beuben Quimby was common source of title of both parties, so far as the adjacent upland is concerned. Plaintiff’s title to this upland is from Quimby to Gregory So Mead, May 15, 1853; to McCord, December 2,1854; to Jones, February 27, 1856; to Jones, through a referee February 6, 1860; to Sawyer, September 14, 1885; to Bunting, September 26, 1885; to plaintiff, February 6, 1886. Defendant’s title is by mortgage to Curtis, September, 1854; to David Quimby, through foreclosure, May 1, 1863; to Larkin, July 1, 1863; to Larkin, November 1, 1873; to Blakslee, September 14, 1883; and thence to defendant. It thus appears that Quimby’s deed to Gregory & Mead (May 15, 1853) antedates this mortgage to Curtis, September, 1854. It is claimed, however, that while Quimby sold the upland adjacent to the locus in quo to Gregory So Mead, he reserved all water-rights, etc., in front of that land, and that the rights thus reserved passed to David Quimby, and so on to defendant, under the mortgage and foreclosure. The difficulty- is that the Gregory & Mead grant made them riparian owners. It carried all that Quimby owned. He had then no grant of any land under water. He owned nothing in the water of the river. He was a mere riparian owner, and, as such, had no estate whatever in the land under the water. He had simply a right to apply to the state for and to obtain a grant as the owner of the upland, but when he sold the upland that right ceased. Gregory So Mead then became the owners of the upland, and, as such, they and their grantees were entitled to apply for the grant of land under water. We fail to see how the state could grant that land under water to anybody except the grantees of Gregory & Mead. To say that the state could not grant it to them would be to say that it could never be granted by the state at all, and that simply because Quimby chose to write some words in his deed indicating that he claimed rights in the land under water which he never owned at all. It seems to have been claimed that the locus in quo was covered by an ancient grant from the state to Hunter in 1787; and hence that Quimby, a grantee thereunder, did own the land under water, which he reserved from his conveyance to Gregory & Mead; but that was a question of fact on the evidence, and the finding is against defendant on this point. We do not find any specific request upon this point; and, in the absence thereof, we cannot say that any error of law was committed in this respect. Indeed, we think the evidence sustains the finding. We have examined the other questions suggested on appellant’s points, and fail to find error. The judgment should therefore be affirmed, with costs.  