
    Shinnecock Hills and Peconic Bay Realty Company, Appellant, v. Frank E. Aldrich and William Aldrich, Respondents.
    Second Department,
    April 30, 1909.
    Real property — deed construed -r provision excepting lands from conveyance — trespass — evidence showing title of defendant — evidence — presumption of grant by long occupancy — adverse possession of salt meadows.
    Where a grantor excepts from the Conveyance lands within the described boundaries, the exception in the. case of an ambiguity is to be taken most favorably to the grantee. But if the exception he so vague that the lands cannot-be identified nothing is excepted.
    Deeds are construed the same as other contracts,, and the court, so far as it can, will put itself in the position of the parties and ascertain their intention from the words used, their context and the surrounding circumstances, ■
    Action for trespass upon lands.. The plaintiff claimed under a deed, including the lands in dispute. The instrument, however, excepted from the conveyance all such meadows, and marshes within the boundaries as have “heretofore been, allotted to and are now owned by particular individuals.” The defendant claimed that the lands upon which he committed the alleged trespass had been allotted in 1654, though he was unable to trace a paper title to' any of the allottees. On all the evidence, held, that the exception Contained in the plaintiff’s deed was- not void for indefiniteness, and that the lands upon which the defendant is alleged to have trespassed had actually been allotted and. were éxcepted from the conveyance.
    Evidence showing acts of ownership exercised as far back as the memory of man runs is sufficient to justify the presumption of a grant.
    Evidence held to establish the' defendant’s title by adverse possession.
    Adverse possession of salt meadows which are incapable of cultivation is estaba lished where the plaintiff and his predecessors for over twenty years made a regular, open and notorious use of the lands by cutting the natural grass therefrom', that being the only use for purposes of husbandry of which the ' land was susceptible.
    Appeal by the plaintiff, Shinnecock Hills and Peconic Bay. Realty Company, from a judgment of the Supreme Court in favor of the defendants, bearing date the 21st day of November, 1907, and entered in the office of the clerk of the county of Suffolk upon the verdict of a jury rendered by direction of the court after a trial at the Suffolk Trial Term (as amended), and "also from an order bearing date the 19th day of November, 1907, and entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.
    
      J. Edward Swanstrom [Conrad S. Keyes with him on the brief], for the appellant.
    
      Timothy M. Griffing [Thomas Young with him on the brief], for the respondents.
   Miller, J.:

This action was brought to enjoin a trespass,.but it was tried upon the stipulation of the parties as an action at law for damages. At the close of the evidence both sides moved for the direction of a verdict and the defendants’ motion was granted. The dispute is over the title of a strip of salt meadow and beach on the southerly side of Cold Spring Harbor in the town of Southampton, Suffolk county. The plaintiff is the owner of the uplands adjoining the strip in dispute. The plaintiff derives title from a deed made March 21, 1861, by the “ Trustees of the Proprietors of the Common and undivided lands and marshes or meadows in the Town of Southampton ” to Lewis Scottand others. It is conceded that the description in that deed includes the premises in dispute, but the deed contained an exception in the following words : And excepting from this conveyance all such meadows and marshes, within the aforesaid boundaries as have heretofore been allotted to and are now owned by particular individuals in severalty or otherwise,, and also further excepting from this conveyance all land covered with water where the tide ebbs and flows within said bounds. It being the intention of this conveyance and it shall be so construed as to- convey said tract of land subject to all legal highways and Beads as aforesaid and in no sense to convey the meadows or marshes heretofore allotted to or the land covered with water where the: tide ebbs and flows within said Bounds according to the exception hereinbefore contained.” The plaintiff also claims: under a quitclaim deed of November 17, 1881, by the “Trustees of the Proprietors of the Undivided Lands of the Town of Southampton, County of Suffolk and State of New York,” conveying all the right, title and interest of the grantors to the undivided lands of a described portion of what was known as “ The Town Purchase,” which refers to an Indian deed made December 13, 1640. The defendants claim that the premises in dispute were a part of what was known ¡as the “. Seaponack Division,” which was allotted in 1654, and.while they are unable to trace their title to any of the allottees, they show a paper title, to wit, a warranty deed from the heirs of Sylvanus Baynor, deceased, to Franklin dagger, and. the will of the latter devising his residuary estate to them.

The plaintiff claims that the exception in the Scott deed is void for indetiniteness. It is true that an exception in a deed* must be taken most favorably to the grantee. (Jackson v. Hudson, 3 Johns. 375; Blackman v. Striker, 142 N. Y. 555.) If the language used is susceptible of more than one meaning, the grantee is entitled to the one most favorable to him; and if it is so vague as to identify nothing, nothing will be excepted. But deeds have to be construed the same as other contracts. The court, so far as it can, will put itself in the position of the parties and ascertain their intention from the words'used, their context, and the surrounding circumstances. (Blackman v. Striker, supra ; Clark v. Devoe, 124 N. Y. 120; Thayer v. Finton, 108 id. 394; Myers v. Bell Telephone Co., 83 App. Div. 623.) The contention of the plaintiff is that the exception is as indefinite as though, for the phrase “ such meadows ahd marshes within the aforesaid boundaries as have heretofore been •allotted to and are now owned by particular individuals/’ wei'e substituted the words, “excepting some of the meadowlánds within the aforesaid premises; ” but those two expressions have only to be put in juxtaposition to perceive the fallacy of that argument. .The meadows and marshes theretofore allotted, so far as anything appears on the face of the instrument, were capable of being; identified; and the question is what did the parties mean by the expression used. The- plaintiff’s contention that the exception was merely put in as a saving clause to guard against possibilities, is plainly refuted by the instrument. The exception is emphasized by the statement of . the intention of the parties, and the expression except as aforesaid ” is subsequently used at least four times.

The records of the town of Southampton contain the entry of what a witness, who had made a special study of the old records of the town, said purported to be an allotment of the Seaponaek Division,” made in February, 1654. They also contain entries purporting to have been made during the seventeenth century, subsequent to 1654, of. sales and leases by individual owners of salt meadows in the Seaponaek division, "some of them described as being on Gold Spring pond. Said witness testified that the Seaponaek division included the meadows in dispute, and that there was no other division of the town to which the name could refer. That witness had been one of the trustees of the proprietors and the town clerk of the town for several years succeeding 1860. He had made a special study of, and had compiled, deciphered and published the old records of the town. Those records required explanation from one having special knowledge of the subject, and the witness qualified as an expert; indeed his competence was not questioned. The record evidence then tends to show that there was an allotment of the division of salt meadows, including those in dispute, to individual owners whose ownership continued to be unquestioned after the Andros and Dongan patents. One of the trustees of the proprietors testified that, in 1861, consequently about the time of the Scott deed, an arrangement was made between the trustees who owned the uplands and the owners of the meadows, whereby the latter were to have certain rights in the uplands in return for allowing the cattle and sheep, pastured upon the hills, to go upon the meadows. At that time there was a fence between the uplands and the meadow — how long it had existed did not appear — but there is now a well-defined ditch where it existed. The three other sides of the meadow in dispute are marked by natural boundaries. There is no pretense that the proprietors made any claim to the ownership of this meadow at the time of the Scott deed. On the contrary, the evidence is undisputed that,. as far back as any one can remember, the claim of ownership of the defendants and their predecessors has been open, notorious and unquestioned, and they or their lessees have annually mowed the meadow and carried away the hay.

There seems to be no room to doubt from the evidence above outlined that the parties to the Scott deed understood that the premises in'dispute were a part of the meadows theretofore allotted to and then owned by individuals. However, thei language óf the exception requires that, both allotment to and ownership by individuals be shown. The defendants are unable to trace a paper title to one of the allottees, and of course cannot show, what possibly may be presumed, that the allottees took possession. The so-called Barrett patent of 1641 and the Indian deed of 1640 did not convey title; but titles to land in the town of Southampton have their origin in the Andros patent of 16<76, confirmed by the Pongan patent of 1686. Under those grants the title tó the uplands and meadows vested in the corporate body in trust for the original proprietors. (Town of Southampton v. Mecox Bay Oyster Co., 116. N. Y. 1.) However, both the Andros and the Pongan patents purport to be confirmatory of existing, rights, and the Andros patent contained the recital :* “ Whereas there is a certaiñe- Towne in the East Biding of Yorkshire upon Long Island commonly called and knowne by the name of South Hampton,5’- etc. : That charter was evidently granted to secure from the town, recognition of the authority of the Puke of York.. It appears that an order was made by the General Court .of Assizes under Governor Hicolls in 16Í0, requiring the towns of Southampton, Southold and Oyster-bay to give their reasons why they had delayed having their grants or patents renewed or Confirmed.: The rights of the original settlers were recognized and confirmed by the Andros, and Pongan charters, and any divisions of the common lands made prior thereto do- not appear thereafter to have been questioned. However, in view of the fact that under the Andros and Pongan charters the legal title vested in the body corporate ¡and' not in the equitable owners, it would seem that partition could not be made as among tenants in common, but that a transfer by the holder of the legal title- was necessary to vest title in the allottees (See Sanger v. Merritt, 120 N. Y. 109), and it may well be doubted whether land could be transferred by parol after the Andros charter. The English Statute of Frauds (29 Car. II, chap. 3) took effect June 24,1677, and it seems that there was then in force in the Colony of Hew York a similar statute. The Duke of York’s laws, which were said to have been promulgated at Hempstead on March 1,1665, and copies transmitted to the several ridings constituting the shire of Yorkshire, provided “ That henceforth no Sale or alienation of Houses and Lands within this Government shall be holden good in Law except the same be done by Deed in writing under hand and Seal and delivered and possession given upon part in the name of the whole by the Seller or his Attorney so authorized underhand and seale, Unlessethe said Deed be Acknowledged and Recorded according to Law.” (See 1 Colonial Laws [Comp. Stat. Rev. Com.] 6, 30.) And that provision was re-enacted by chapter 8 of the Colonial Laws of 1684 (Id. 148). It is unnecessary now to determine the effect of those laws, because the evidence showing the acts of ownership exercised as far back as the memory of man runs was sufficient to justify the presumption of a grant. (Roe v. Strong, 119 N. Y. 316; 137 id. 592.) It follows, therefore, that the learned trial justice was justified in holding that the premises in dispute were excepted from the conveyance of 1861, and that the quitclaim deed of 1881, conveying “ Undivided Lands,” was at most only confirmatory of the earlier deed.

Moreover, the defendants’ evidence tended to show an adverse possession for twenty years under a claim of- title. While there are some cases in the Court of Appeals which seem to be opposed to this view, I think the defendants have made out a case of technical adverse possession under the statute. Wheeler v. Spinola (54 N. Y. 377); Price v. Brown (101 id. 669), and Mission of the I. V. v. Cronin (143 id. 524) involved somewhat similar land but not the same facts, if I rightly understand those cases. The first case involved the annual removal of a load or two of what was called “ thatch ; ” the second case involved what was characterized by the court as “ an occasional foray” for thatch; and in the last case the one claiming title had only surveyed the land, marked boundaries and from time to time cut trees. In McRoberts v. Bergman (132 N. Y. 73) the owner of the upland, who had removed sand from the beach and cut grass from the salt meadow, was allowed to maintain ejectment on the ground that his right of possession was superior to the . defendant’s. The evidence in this ease shows more- thán “ an' occasional foray ” for thatch. It shows a regular, open and notorious use of the land, and, in fact, the only use for the purposes' of hus-. bandry of which it was susceptible! Section 310' of the Code of Civil Procedure provides: “For. the purpose .of constituting an adverse possession, by a person claiming a title, founded upon a written instrument, or a judgment or decree, land is ¡deemed to have been possessed and occupied in either of the following cases.: 1. Where it has been usually cultivated" or improved.: 2. Where it has been protected by a substantial in closure. 3. Where, although not inclosed, it has been used for the supply of fuel, or of fencing timber, either for the purposes of husbandry, or for the ordinary use of the , occupant.” I do not think the Words “ cultivated or improved ” should be used in a technical or narrow sense. The purpose of the statute, was. doubtless to require that the possession should be visible, open,, notorious. There is no.doubt that every farmer in the locality of this salt meadow -understood who claimed to own it. “ To cultivate is defined, " ‘ to improve the product of the earth by manual: industry.’ When ¡speaking of improved land, it is generally understood" to be süch as lias been reclaimed, is used for the purpose of husbandry, ¡and is cultivated as such, whethei the appropriation is for tillage, meadow or pasture.” (Clark v. Phelps, 4 Cow. 190, 203.): That case- dealt with another statute, but the quotation is appropriate to this. The land in question is not susceptible of being tilled.:" Doubtless.- only the natural grass will grow upon it. Unless annual cutting ¡and carrying away of that grass for purposes of husbandry constitutes cultivation or improvement of the land within the meaning of the Code, it .is not possible ever to acquire adverse possession of ¡ such land, no matter how notorious the possession in fact may "be. The defendants got hay, not “ thatch-,”- from thismeadojw. They doubtless uséd that hay for fodder or bedding. Doubtless the annual cutting of the grass improved the crop,-at least it., made it possible to get a crop, which would be difficult if the grass were not cut regularly, , That was- the only improvement practicable, at least for agricultural purposes. Had this been an upland meadow, no- one would doubt that mowing, it annually and taking away the grass were enough to constitute adverse possession. A good farmer might fertilize his meadow lands and regularly break them up; but he would still have adverse possession of them within the meaning of the statute, if’ he merely cut and carried away the grass. This record suggests, what I understand to be the fact, that the farmers of Long Island regard their salt meadows as more valuable and the use of them more important than was evidently made to appear in some of the cases hereinbefore cited. It appears that the salt meadows were the first lands allotted by the early settlers, and it seems to me that acts of ownership sufficient to give rise to .a presumption of a valid grant ought to be sufficient, if under a paper title, to constitute a technical adverse possession.

, The judgment should be affirmed.

Hirschberg, P. J., Gaynor, Burr and Rich, JJ., concurred.

Judgment and order affirmed, with costs.  