
    The People ex rel. Charles G. Burnham, Respt’s, v. Edward T. Jones et al., Commissioners of the Land Office, App’lts.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    1. Title—Land under water oe navigable lakes or rivers—Commissioners op land oppioe—To whom mat make grants—1 R. S. (7th ed.), 573, et seg.
    
    The powers and duties of the commissioners of the land office, on an application made to them for a grant of lands under water by different parties claiming the right to have title thereto, are defined in 1 Revised Statutes (7th ed.), 573, et seg. By section 67 the commissioners are authorized to make grants of land under the waters of navigable rivers and lakes in the state to the proprietors of the adjacent lands; but they are expressly prohibited from making such grants to other persons, and such grants if made are declared void.
    
      2. Same—Power op commissioners op land oppioe—Nature op—How EXERCISED.
    On an application to the commissioners of the land office for a grant from the state of certain lands under water: Meld, that the exercise by the commissioners of the power of determining who is the riparian owner of the adjacent uplands is a judicial one, dependent upon notice given to all persons interested, and the determination of the question involved can only be made after a hearing through proof, conducted in accordance with legal rules, and such determination, if erroneous, is reviewable by the supreme court under a writ of cerUoi'a/i'i.
    
    :3. Same—Deed—Description op premises—When ambiguous what controls.
    Where the intention of the parties is left in doubt by the language of the conveyance as to the particular plot to be conveyed, and there is ambiguity in the description growing out of the differences between the land described by metes and bounds and that embraced in lines extending to natural or artificial monuments, the former as being less certain is controlled by the latter description.
    4. Same—How grant op certain lands construed.
    Ordinarily and in the absence of a clearly expressed intention to the contrary; a grant of lands under the name of a beach, or a boundary of lands upon or along a beach, is synonomous with the words shore or strand, as having reference to and including only the lands washed by the sea between high water and low water mark.
    
      5. Same—Description of premises hot construed—Easement.
    When in a grant of uplands adjoining a lake the shore line is described to be a straight line not following the natural sinuosities of the shore or water front, and there is a clause conveying an easement in the land beyond the expressed' line: Seld, to be plainly opposed to the theory of a diversion to accommodate the irregularities of a varying line, and as implying the existence of land between the land granted and the lake in which the grantor assumed to grant an easement only.
    6. Same —Riparian rights—Line of ownership.
    The line of riparian ownership extends only to high water mark on inland seas, or large navigable bodies of water, the title to all lands beyond high water mark being in the state.'
    7. Same—To whom accretions of shore inure.
    All the accretions to the shore inure to the person who owns the adjacent uplands, and he alone is entitled to the grant from the commissioners.
    Appeal from a judgment of the supreme court, general term, third department, reversing the decision of the commissioners of the land office granting an application for a grant of land under the waters of Lake Ontario..
    
      Chas. F. Tabor, Attorney-General, for appl’ts; Wm. B. Hornblower, for resp’ts.
    
      
       Modifying 17 N. Y. State Rep., 586.
    
   Ruger, Ch. J.

The principal question in this case relates to the riparian proprietorship of a strip of land extending about 100 feet along the south shore of Lake Ontario, at the village of Charlotte, in Monroe county.

The question arose over an application to the commissioners of the land office, for a grant from the state of land under water in front of said premises, made by the Bartholomay Brewing Company of Rochester, claiming to be the owners of the uplands adjoining the, lake. This claim was contested before the commissioners, by one Charles G. Burn-ham, who also claimed title thereto, and upon a trial of such claims the commissioners decided to award the grant to the Brewery Company. Upon a certiorari brought by Burn-ham, the proceedings were removed into the supreme court, and upon a hearing thereon, the award of the commissioners was reversed and the application denied. The commissioners appeal from this reversal to this court.

A determination of the questions presented involves purely a question of law, and is controlled by the construction to be given to the deeds presented by the respective parties, and the statutes giving authority to the commissioners to execute grants of lands under navigable water for the state,

The board of commissioners of the land office is organized under section 5 of article 5 of the constitution, and its powers and duties are defined by section 6 of the same article to be such “as now are or hereafter may be prescribed by law.” Their powers and duties so far as the questions in this case are affected, may be found in 1 R. S. (7th ed.), p. -573, et seq. By section 67 of the statutes referred to, the commissioners were authorized to make grants of land under the waters of navigable rivers and lakes in the state, to the proprietors of the adjacent uplands; but they were expressly prohibited from making such grants to other persons, and such grants, if made, were declared to be void. Before any grant is authorized to be made, the applicant therefor is required to give six weeks’ notice of his application by advertisement in a newspaper of the county where the land is situated, and post a copy of such advertisement on the door of the court house of such county. Section 70. The commissioners have authority to compel the attendance of witnesses in an application pending before them, and, by implication, the right to take testimony, hear counsel, and adjudicate upon the questions presented. Chapter 134, Laws of 1839.

The hearing in question was had before the commissioners in pursuance of the authority of the statutes referred to, and both the relator and the Bartholomay Brewing Company were present and heard by their witnesses and counsel in support of their respective claims. Both claimed title to the disputed premises by virtue of conveyances, from Whitney, the conceded original owner. The Brewing Company under a deed to one Upton, dated in 1873, and the relator under one dated in 1886.

The real question is therefore whether the first deed conveyed title to the premises in dispute or not. The uncontradicted evidence in the case shows that there was a strip of.land situated between the lake and the premises embraced in the metes and bounds contained in the first deed,, and the adjudication by the commissioners was made upon the assumption that such deed conveyed the title thereof to the grantors of the Bartholomay Brewing Company. The adjudication proceeded upon the ground that the true construction of the deed did not confine the grantees to the land included within the metes and bounds; but extended, beyond them to the natural monument constituted by the waters of the lake. The rule is well settled that where there is an uncertainty as to the plot of land intended to be conveyed, arising out of differences between the land described by metes and bounds and that embraced in lines extending to natural or artificial monuments or objects mentioned in the deed, that the former shall give way, as being less certain, and be controlled by the latter description. Wendell v. People, 8 Wend., 183; Yates v. Van De Bogert, 56 N. Y., 531.

But this ruléis not inflexible, and is applicable only where there is.ambiguity in the description, and the intention of the parties has been left in doubt by the language of the-conveyance. People ex rel Banks v. Colgate, 67 N. Y., 512; Higinbotham v. Stoddard, 72 id., 94; Buffalo, N. Y. and Erie R. R. Co. v. Stigeler, 61 id., 348.

When that intention is clearly revealed in the instrument, it furnishes the rule by which deeds, as well as statutes and other contracts, must be construed. Case v. Dexter, 106 N. Y., 553; 11 N. Y. State Rep , 162.

The description in the deed of 1873 is, so far as it is material in this case, as follows: ‘"Part of lot 20 in the village of Charlotte * * * beginning in the west line of a private street or avenue, thirty feet wide, extending from Beach avenue, parallel with and 250 feet easterly from the west line of said lot 20, at a point seventy-three feet northerly from the north line of Beach avenue; thence northerty along said street 810 feet to the beach of Lake Ontario; thence westerly at right angles 100feet * * * to lands of J. D. Husband and others * * * thence southerly at right angles 210 feet along said Husband’s land; thence easterly at right angles 100 feet to place of beginning, together with the use and privilege of the beach at the end of said street, and for a distance of 100 feet westerly therefrom, in common with the owners of lots on said private street and the owners of lots in the southwest quarter of said lot for bathing and boating.” As claimed by the brewing company, the significant words in the deed are those which describe their easterly line as running northerly “to the beach of Lake Ontario,” and from thence to Husband’s line.

We are referred by the learned attorney general to authorities holding that ordinarily a grant of lands under the name of a beach, or a boundary of lands upon, by or along a beach would be held synonomous with the words shore or strand and as having reference to and including only the lands washed by the sea between high water and low water mark. Trustees, etc. v. Kirk, 68 N. Y., 459.

Such undoubtedly would be the general interpretation of similar words, if there were nothing in the deed showing an intention to the contrary; but this rule of construction would necessarily give way, under all • authorities, to any clearly expressed intention to a contrary effect contained in the deed Here the words themselves are equivocal as they purport to convey the line at one point “ to the beach” and according to general understanding such words would not include any part of the lands referred to as the terminal point. Their literal signification is satisfied by a line which touches the beach at a single point; but even this might be overcome if other language in the deed showed an intention to give the grantee’s title in the beach or a water front on the lake. Bedlow v. Floating Dry Dock Co., 20 N. Y. State Rep., 707.

The contrary of such an intention is, we think, clearly and unequivocally expressed in the deed. Hot only is the north line described to be a straight line, not following the natural sinuosities of a shore or water front; but runs to a fixed point in the line of Husband’s land forming a mathematical parallelogram plainly opposed to the theory of a. diversion to accommodate the irregularities of a varying line. Higinbotham v. Stoddard, 72 N. Y., 94; People ex rel. Banks v. Colgate, 67 id., 512.

A circumstance, however, which is quite decisive upon ■ this point, is the clause conveying an easement only in the land beyond the expressed line, to the grantees therein, thus implying the existence of land between the land granted and the lake to which the grantor claimed title in which he assumed the right to grant an easement. Mather v. Chapman, 40 Conn., 400.

It would be a manifest absurdity to suppose that the grantor was attempting to convey an easement to grantees in lands, in whom he had already by the same instrument, vested an absolute title in fee. The latter clause, upon the assumption of a conveyance of a fee by the prior part of the deed, could have no operation, and would involve an interpretation opposed to settled rules. This construction is also fortified by the fact, that as late as 1885, the brewing company procured and accepted a second deed from Whiting, of other lands in lot 20, bounded along the shore of the lake, which also contained the grant of an easement, in connection therewith, in common with other owners of lots, over the beach of the lake lying north of the lands heretofore conveyed by the deed of 1873, being the land in question. A more explicit disavowal of title in such lands could hardly be expressed in language. We think intentions so-clearly expressed as those contained in the deed of 1873, are not impaired by reference to terms employed in other and extrinsic conveyances, and need not be strengthened by allusions to ulterior considerations.

We are, therefore, of the opinion that the brewing company did not, under the deed in question, take title to any land on the shore of the lake byond the rectangle described in the metes and bounds therein employed.

No question arises in this case over the line of riparian proprietorship along the lake, as it is conceded by both parties, that it extends only to high water mark on inland seas or large navigable bodies of water like those of Lake Ontario, Smith v. City of Rochester (92 N. Y., 463), and that the title to all lands beyond high water mark, or under water, is in the state. Id.

Neither can it be doubted but that a riparian owner conveying lands adjacent to navigable waters, may so limit his grant as to reserve to himself, not only his riparian privileges in the water, but also subsequent accretions to the soil, formed by the operation of natural causes. This follows necessarily, from the absolute right which. the owner has to impose such terms and conditions upon his grants, as he may deem necessary or proper.

Whatever may have been the motive, or however inconsiderable may have been the right ungranted, the only inquiry here is whether any land next to the lake remained unconveyed by the deeds of 1873. People ex rel. Banks v. Colgate, (supra). If there did, such land was concededly ■conveyed by the deed from the Whitings to Burnham, executed in 1886.

The undisputed evidence in the record shows that there - was a strip of land of varying depth, from thirty feet and upwards lying between the lake and the rectangle described in the deed of 1873, at the time of the hearing before the ■commissioners. Whenever this land was formed and whether it existed to its full extent at the time of the conveyance of 1§73, or not, we think is immaterial, as all accretions to the shore inured to the benefit of that person who ■owned the land adjacent to the water, and he alone, if any, was entitled to the grant from the comissioners under the statute. People ex rel. Banks v. Colgate (supra).

The only remaining question relates to the authority of the supreme court to review the award made by the commissioners, under a writ of certiorari. It is quite earnestly contended by the attorney-general that such authority does not exist. We are of the opinion that the writ properly issued in this case and afforded the only adequate remedy for the protection and preservation of the relator’s right to a grant of the lands under water at the places indicated, if any was tó be made by the commissioners. It is not easy to see any other sufficient remedy open to him, while the existence of an outstanding grant from the commissioners to other parties, apparently barring him from access to the water, however invalid it might be, would seriously impair the market value of his property and be the source of danger, annoyance and inconvenience in the future. It is no valid objection to the power of review that a grant in pursuance of the decision would be void, for the relator had the right to have' even a void determination set aside if it affected any interest belonging to him. Fitch v. Commissioners, etc., 22 Wend., 132.

It is not claimed by the relator that the commissioners can be controlled in the exercise of their discretion upon the question whether a grant shall be made or not, but it is insisted if they do make such a grant it shall issue to the owner of the adjacent uplands and not to a stranger. This is clearly the right of the relator, conferred upon him by statute, and upon a decision, in a controversy between himself and another holding that he is not such owner and is, therefore, not entitled to such grant, made by a tribunal authorized by statute to hear and decide the question, he was entitled.at common law, as he now is by the Code, to review the determination in the courts by certiorari. Wildy v. Washburn, 16 Johns., 49; Starr v. Trustees, etc., 6 Wend., 564; Lawton v. Commissioners, etc., 2 Caines Rep., 182; Code Civ. Pro., § 2120.

That the exercise by the commissioners of the power of determining who was the riprarian owner of the uplands in question, was a judicial one and must always precede the making of a grant by the commissioners, can admit of no doubt. The statutes clearly contemplate the compulsory attendance of witnesses; the taking of evidence; the consideration thereof by the board, and a judicial determination of the respective claims according thereto.

The paper to entertain an application was made dependent upon notice previously given to all persons interested, and such notice clearly implied the right of such persons to be heard upon the determination of such application. No lawful determination of the questions involved could be-made except after such hearing through proofs and arguments of counsel. People ex rel. Banks v. Colgate, (supra).

It was held by this court in the People, etc., v. Nichols (79 N. Y., 582), that a power to remove certain city officers for cause, and after opportunity to be heard, given to the-mayor of New York, can only be exercised upon just and reasonable grounds, and after notice to the person charged. The proceeding must be instituted upon specific charges-sufficient in their nature to warrant the removal, which, unless admitted, must be proved.

The defendant may cross-examine the witnesses to support the charges; call others in his defense, and in all steps of the proceeding is entitled to be represented by counsel. The proceeding, therefore, being judicial in character, is subject to review by a writ of certiorari issued by the-supreme court.

The learned attorney general has cited a number of cases to support his contention; but, upon examination, we find them to be cases where the writ was addressed to ministerial officers, or where the determination sought to be reviewed involved the exercise of legislative or discretionary power. Here no such questions were involved, but the commissioners were authorized to determine the issue presented only as a question of law upon lawful evidence and in accordance with legal rules. That such a determination is re viewable by certiorari is not subject to doubt.

It was said by Justice Spencer in the Lawton Case that “It is a position beyond contradiction that the king’s ¡bench in England (and this court is clothed with the same •common law authority) has and may award a certiorari, not only to inferior courts, but to persons invested by the legislature with power to decide on the property or rights of the citizen, even in cases whei’e they are authorized by statute finally to hear and determine.”

That the determination of the commissioners was of such a character as authorized the court to examine into it and •correct it, if erroneous, under the provisions of the Code, seems to be quite clear. People ex rel. Kent v. Board of Fire Com'rs, 100 N. Y., 83.

The cases in which the court is authorized by the Code to review by certiorari the ‘ ‘ determination of a body or-officer,” include, among others, those in which the question arises (subdivision 3), “ whether in making the determination any rule of law affecting the rights of the parties thereto has been violated to the prejudice of the relator.” Subdivision 4. “ Whether there was any competent proof •of all the facts necessary to be proved in order to authorize the making of the determination.” Code Civ. Pro., § 2140.

The proof upon the hearing, as we have seen, did not authorize the determination made by the commissioners, and it violated the statute from which they derived authority to act in awarding a grant to a person or corporation not entitled thereto. People v. Board of Assessors, 39 N. Y., 88.

In accordance with the views expressed, the judgment of the general term should be modified by striking out that part dismissing the application to the commissioners of the land office, and affirmed, as thus modified.

All concur, except Danforth, J., not voting.  