
    Alfred Roe et al., Executors, etc., Resp’ts, v. Caroline A. Strong et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed November 29, 1887.)
    
    1. Title—Colonial patents to Long Island towns—What title TESTED.
    The colonial patents to Long Island towns vested in the towns the legal title to the soil under the waters of the bays and harbors within the bounds of the patents. A party, therefore, asserting a title to part of the shore on which a bridge has been erected has no standing until he establishes that the title of the town has been divested and has been acquired by such party.
    2. Same—Evidence—Local history incompetent.
    A local history, e. g., “ Thompson’s History of Long Island,” is not admissible in evidence to establish the fact that the possession of a party ante-dated a patent of 1666.
    8. Title in pee—When not implied prom user.
    A title in fee will not be implied from user where an easement only would secure the privilege enjoyed.
    Appeal from a judgment of the supreme court, general term, second department, affirming judgment rendered at special term. The action was brought to recover damages for the erection of a bridge upon plaintiff’s property, and was also asked for its removal.
    
      A. A. Spear, for app’lts; John J. Macklin,, for resp’ts.
    
      
       Reversing 34 Hun, 632, mem.; title, Floyd, et al. v. Strong.
      
    
   Andrews, J.

The judgment requires the defendants to remove the wharf and bridge erected by them from the upland on the southerly side of Setauket harbor, and also from that part of the shore adjacent to the upland, between high-water mark and the northerly line in the Seaton deed of 1768. The judgment rests upon the finding that the plaintiffs are the owners of the land and of the adjacent shore up' to the line in the Seaton deed. The plaintiffs on the trial rested their case upon the claim that they had the legal title to the upland ana the shore, and that the erection of the defendants was an invasion of their right of property in the soil. If the plaintiff’s own the upland, but not the shore, the judgment is too broad, and if they have title neither to the upland nor the shore, they were not, upon any facts appearing in the record, entitled to any relief. The plaintiffs rely upon two claims of title: (1) The homestead title; and (2) their title under the Seaton deed. It is conceded that Richard Floyd, the ancestor of the plaintiffs, settled upon a tract of about fifty acres of land, situate on Setauket harbor, in the present town of Broolchaven, more than two centuries ago, and that this tract, called the homestead, has ever since remained in possession of his descendants. The origin of his title is not shown, The plaintiffs, offered and read in evidence, under objection, an extract from Thompson’s history of Long Island, and with a view of establishing that Richard Floyd’s possession ante-dated the Nicholls patent of 1666. This evidence was incompetent. McKinnon v. Bliss, 21 N. Y., 206; 1 Greenlf. on Ev., § 497. They also proved a tradition that the Floyds came to this country about 1G46, and afterwards settled on Setauket harbor, but in what year, there is no definite proof.

On a new trial the requisite evidence may be given. The point is material upon the question whether the homestead, lot was bounded on the north by the water. If Richard Floyd’s possession ante-dated the NicoHs patent, there would be a strong presumption that his title, however derived, extended to high-water mark. The fifty acres is adjacent to the harbor, and in the absence of evidence to the contrary, it could not be supposed that the persons from whom Richard Floyd derived title, reserved a strip a few rods wide along the shore, thereby cutting him off from access to the water over his own land. There is no evidence of any such reservation in titles acquired prior to the Nicholls patent, and the Duke of York’s laws, enacted in 1665, the year preceding the granting of the patent, confirmed the title of the then settlers to the lands in their possession.

If, however, the possession of Richard Floyd, the ancestor, originated after the Nicolls patent, and his title is derived thereunder, then it seems probable that the cliff was the boundary on the water side, leaving a strip of land along the shore above high-water mark which was reserved for common use. It seems to have been the practice of the towns of Long Island to make this reservation in the allotment of common lands held under patents from the colonial .government. (See Trustees of East Hampton,, 68 N. Y., 459.) The defendants, in confirmation of the claim that the practice prevailed in respect to allotments of the common lands of the town of Brookhaven, produced the ancient town records of the town, from which it appears that at a meeting of the trustees February 5, 1755, it was voted and agreed that “Ye lots that were laid out on the Sound and Harbors, were designed to extend to ye bottom of ye clifts .against ye said lots,” and it also appears from the same records that Col. Richard Floyd, then the owner of the homestead tract, was during that year one of the trustees of the town.

But passing this question, which by evidence on a new trial may be freed from obscurity, and assuming that the plaintiff’s boundary of the upland extends to high-water mark, we are of opinion that they failed to establish title to any part of the shore, over which the bridge was built, or any injury to their rights as riparian owners which entitled them to a judgment requiring the defendants to remove that part of the bridge extending below high-water mark to the line of the Seaton deed. The construction of the patent granted by Governor Nicolls in 1666, to the trustees and freeholders of the town of Brookhaven, and of the confirmatory patent of Governor Dongan, granted in 1686, was elaborately considered by this court in the case of The Trustees of Brookhaven v. Strong (60 N. Y. 56). It was held in that case that by virtue of these patents and the confirmation thereof by the colonial legislature, the town was vested with title to the lands under the waters of the bays and harbors included within the boundaries of the patent, as well as to the uplands, not already the subject of private ownership. The grant under these patents was in trust for the use of the inhabitants of the town. It is well known that titles to large tracts of land in various towns of Long Island are held under similar patents. The uplands have, to a great extent, by grants from the towns, become the subject of private property. The public trust as to them has been subserved by grants to individuals in severalty, the towns receiving the consideration. The title to the soil under navigable waters vested in the Long Island towns under the colonial patents, was undoubtedly subject to the public right of navigation, and it would seem to follow that the towns could not alienate the title so acquired to the material prejudice of the common right.

But, whatever limitations may have been imposed upon the title of the town of Brookhaven, for the protection of the public in the use of navigable waters, it is no longer an open question that the colonial patents to the Long Island towns, vested in the towns the legal title to the soil under the waters of the bays and harbors within the bounds of the patents. Gould v. James, 6 Cowen, 369; Rogers v. Jones, 1 Wend., 237; Brookhaven v. Strong, 60 N. Y., 56; Hand v. Newton, 92 id., 88; Robins v. Ackerly, 91 id., 98; The Mayor, etc., v. Hart, 95 id., 451.

The plaintiffs, therefore, who asserts a title to that part of the shore of Setauket harbor on which the bridge is erected are met in the first instance by the fact that the title was originally in the town. They have no standing until they establish that the title of the town has been divested, and has been acquired by them. They do not show any deed from the town, or any agreement or writing on the part of the town recognizing their title or that of their grantors. They proved a deed from Joseph Brewster to Andrew Seaton, dated June 21, 1768, which purports to convey “a certain piece of salt thatch,” by lines which include the locus in quo, and they trace their record title from this source. In addition they proved that from time to time the grantees under the. Seaton deed, cut the salt thatch growing on the. premises, and that one of them for several years leased to one Rogers the right to cut the thatch, and some other circumstances of a like nature. There is no proof that the town in any way recognized any title in Seaton or his grantees to the shore, nor indeed is' there any evidence that the town had any notice of the -deed. It was never recorded, nor was there any recorded conveyance describing these premises in the whole chain of title under the Seaton deed until 1866, a century after that deed was executed.

What title, if any, Brewster had, is not disclosed, and the evidence falls far short of establishing a title in his grantees by adverse possession. The premises embraced in the deed were never inclosed, but remained open, subject, without obstruction, to the ebb and flow of the tide and to the uses of a public landing place. The trustees of the town after the execution of the Seaton deed and down to the time of the commencement of this action, exercised jurisdiction over the part of the shore in question, and from time to time, granted privileges wholly inconsistent with the claim of title made by the plaintiffs.

Assuming that the town was cognizant of the acts of Seaton or his grantees in cutting the thatch, and that they claimed an exclusive right, and acquiesced therein, this at most would give them a prescriptive right, as against the town, to take the thatch without conferring a title to the soil, which would be unnecessary to the enjoyment of the right. In other words, a title in fee would not be implied from user, where an easement only would secure the privilege enjoyed. See Hale on Sea Shore, 217; Gould on Waters, § 22. The prescriptive right acquired, if any, was analogous to a profit a prendre, appurtenant to some particular estate, and it may be doubtful whether it could be granted alone, or could exist severed from the estate to which it was attached. See Co wen, J., in Pearsall v. Post, 20 Wend., 123; Waters v. Lilley, 4 Pick., 145; Perley v. Langley, 7 N. H., 233; 2 Greenlf. Ev., 540; Angell on Tide Waters, 272; Gould on Waters, § 25.

We think the plaintiffs failed to establish a title to the shore of the bay, and that there is no evidence that the title of the town under the Nicolls patent has been divested.

It is not material to inquire whether the grant of the right to construct abridge over the bay, made by the trustees of the town to the defendants in 1878, was valid. If the construction of the bridge over the waters of the shore is an unlawful obstruction to navigation, the wrong may be redressed by appropriate proceedings in behalf of the public. It does not appear that the plaintiffs have suffered any special injury, and upon the facts proved they have no standing to maintain an action for the removal of the bridge, in the absence of legal title to the soil. Fort Plain Bridge Co. v. Smith, 30 N. Y., 44.

The judgment should be reversed and a new trial granted.

All concur, except Rapallo, J., absent.  