
    In the Matter of the Application of the City of New York, Relative to Acquiring Title, etc., for the Purpose of Opening West Farms Road from Bronx River to Westchester Creek, etc. William A. Prendergast, Comptroller of the City of New York, and the City of New York, Appellants; Mary C. C. Clark, as Administratrix, etc., of Thomas S. Ryan, Deceased, Respondent.
    First Department,
    March 20, 1914.
    Waters and watercourses — conveyance by municipality of lands adjacent to navigable stream—presumption of conveyance of lands under water — provisions of deed by trustees of town examined.
    A municipal corporation holding lands under navigable waters in its governmental • capacity will not be presumed to have intended to include in its deed of the uplands the adjacent land under water unless precise words are used clearly indicating such intention.
    Provisions of a deed from the trustees of a town of lands adjacent to a navigable stream examined, and held, not to convey the lands under water.
    McLaughlin, J., dissented, with memorandum.
    Appeal by William A. Prendergast, comptroller, etc., and the City of New York, from an order of the Supreme Court, .made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of November, 1913, confirming the report of a referee as to certain awards made to unknown owners in the above proceeding.
    
      Joel J. Squier, for the appellants.
    
      Benjamin Trapnell, for the respondent.
   Scott, J.:

The commissioners of estimate and assessment in this proceeding made a substantial award to Thomas S. Ryan for damage parcel No. 234 as shown on the commissioners map, and also made smaller, but still substantial awards to “unknown owners ” for damage parcels Nos. 235 and 236 as shown on said map. The awards for said last-mentioned parcels were claimed both by the city of New York and by Mary C. C. Clark, as administratrix with the will annexed of Thomas S. Ryan, deceased. These conflicting claims were referred to a referee who has reported that Mary C. C. Clark, as administratrix, etc., is entitled to receive the awards, and his report to this effect has been confirmed at Special Term. From the order of confirmation this appeal is taken, and the question involved is as to the ownership of the parcels for which the awards were made.

Lot 234 consists of upland fronting on Westchester creek; lots 235 and 236 lie in the bed of said creek in front of said lot 234. Directly to the north of the last-mentioned lot is an ancient causeway crossing said creek-. South of that causeway Westchester creek is, and from time immemorial has been navigable. Parcels 235 and 236 lie under water of that part of the creek which is navigable. The question we have to determine is whether title to those parcels lying thus under the waters of a navigable stream, passed to Thomas S. Ryan, under the deed hereinafter mentioned, from the trustees of the town of Westchester.

In 1667 Richard Nicoll, Governor of the Province or Colony of New York, conveyed to J ohn Quimby and others, as patentees, for and in behalf of themselves and their associates, the freeholders and inhabitants of the town of Westchester, a large tract of land, embracing the lands in question here, and by a description sufficiently comprehensive to include title to thé bed of Westchester creek.

The effect of this grant undoubtedly was to vest ownership of the lands in the town in its corporate capacity, and not in the patentees named in the grant, nor in the freeholders and inhabitants individually. (Lawrence v. Town of Hempstead, 155 N. Y. 297.)

Ryan’s title is derived from a deed made to him on August 14, 1878, by the trustees of the town of Westchester in which the property conveyed is described as follows: ‘ ‘ All that certain lot being and situated in the Town of Westchester and known and distinguished as lot No. 20 on a certain map made by William G. Livingston, Surveyor, and dated June 25th, 1878, bounded and described as follows: Beginning at a point on the road leading from Westchester Village to Throggs Neck at a marked stone, thence running north eighty degrees and forty-five minutes East (N. 80° 45' E.) along the said road or causeway (so-called) fifty-five and one-half feet (55% ft.) to a point on said causeway or road, thence running north eighty-five degrees and thirty minutes East (N. 85° 30' E.) forty-six and one-half feet (46% ft.) to a point marked on the causeway by Westchester Creek thence running along said Westchester Creek south four degrees and forty-five minutes East (S. 4° 45' E.) twenty-four and one-quarter (24% feet); thence by and with Westchester Creek and a certain stone wall sixteen and one-half feet (16% ft.); thence still along by said Westchester Creek and by said wall south forty-four degrees East (S. 44° E.) thirty-nine and one-quarter feet (39% ft.) to a slip thence by and with said slip south eighty-five degrees and thirty minutes west (S. 85° 30' W.) thirty feet (30 ft.) thence south sixty-seven and one-half degrees east eighteen and one-half feet (S. 67%° 18% ft.) to a turn in the wall of the aforesaid mentioned slip thence still along by said wall south eighty-five and one-half degrees west (S. 85%° W.) fifty feet (50 ft.) to the first above-mentioned road leading from the Town Dock thence along the easterly side of said road north six degrees East sixty-six feet (FT. 6° 66 ft.) to a marked stone the point and place of beginning Containing within said bounds fourteen hundredths of an acre (tYf) Together with all the right to the water of Westchester Creek which lies north of the causeway and the right to dam the same and in keeping floodgates and maintaining a dam across said Westchester Creek, where the causeway or road is now located, for the purpose of furnishing water from said pond to drive and work a mill. Together, with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining and the reversion and reversions, remainder and remainders, rents, issues and profits thereof. ”

Ryan conveyed the same property by the same description to William H. Corrigan in 1880, but ultimately through a series of mesne conveyances all containing identical descriptions the property was again vested in said Ryan in 1887. The question of his ownership of the lands under water, therefore, depends upon the terms of the conveyance to him by the trustees of the town of Westchester. It will be observed that so far as Westchester creek is concerned the description of the property conveyed commences at “ a point marked on the causeway by Westchester Creek;” thence it runs “along said Westchester Creek” for a distance; thence “by and with Westchester Creek” for another distance; thence “still along by said Westchester Creek” to a slip; and thence “by and with said slip "x" * * to a turn in the wall.”

It is clear that no part of the bed of Westchester creek is explicitly and in terms included within the lines of the descriptions which are all indicated as “by ” and “along” the creek and slip. The respondent in effect concedes this much, but she rests her claim to ownership by her testator upon the proposition that by operation of law title to the land under water in front of the upland passed under the descriptions quoted. We may assume for the purposes of this case that this would have been so if the grantor, instead of being a municipal corporation, had been an individual who owned the tideway and who had bounded the land conveyed by the creek (Smith v. Bartlett, 180 N. Y. 366; Archibald v. N. Y. C. & H. R. R. R. Co., 157 id. 574; Matter of Mayor, etc., 182 id. 361), or if Westchester creek had been merely a non-tidal fresh water stream, even though navigable in an actual but not legal sense. (Fulton Light, Heat & Power Co. v. State of New York, 200 N. Y. 400.)

A different rule, however, obtains where, as in the present case, the conveyance is made by a municipal corporation of land under navigable water granted to and held by it in its governmental capacity. Such land it holds as trustee for the use of the public and of commerce, and it will not be presumed to have intended to include in its deed of the uplands the adjacent land under water in a navigable stream unless precise words are employed in the conveyance which clearly indicate the purpose and intent to convey the lands under water and to pass the title thereto. (Matter of Mayor, etc., supra; Trustees of Brookhaven v. Strong, 60 N. Y. 56; Sage v. Mayor, 154 id. 61; Mayor, etc., v. Hart, 95 id. 443.)

Applying this very well-settled rule to the case at bar we are forced to the conclusion that the deed from the trustees of the town of Westchester to Ryan did not convey to the latter title in fee to the land under water adjacent to the upland granted to him.

Certain riparian rights he no doubt did acquire and these were probably of value, but it is to be assumed that their value was taken into account in fixing the amount of the award for the upland parcel 234.

It may also be true, as argued by the respondent, that the awards for parcels 235 and 236, burdened as they were, with riparian rights appurtenant to parcel 234, were too large, but that question cannot be dealt with on this appeal.

It is clear that the right given to Ryan to dam the waters of Westchester creek north of the causeway adds nothing to respondent’s claim of title to lands under water lying south of the causeway, and we do not understand that the respondent relies at all upon the grant of this right. From the description of the causeway given in the testimony it would appear that it marked the head of practicable navigability, that portion of the creek lying south, where the lands in question were situated, being navigable, and that portion lying north of the causeway being unnavigable.

The result is that the order appealed from must he reversed, with ten dollars costs and disbursements, the motion of respondent denied, with ten dollars costs, and the awards for damage parcels Nos. 235 and 236 ordered to be paid to the city of New York, as successor to the town of Westchester.

Ingraham, P. J„, Laughlin and Clarke, JJ., concurred; McLaughlin, J., dissented.

McLaughlin, J. (dissenting):

The land described in the deed of conveyance from the trustees of the town of Westchester to Ryan, in my opinion, ran not only to the bank but to the center of Westchester creek. (Smith v. Bartlett, 180 N. Y. 360.) There is nothing in the deed to indicate an intent to reserve the land between high-water mark and the center of the creek, and if such had been the intent it seems to me appropriate words would have been used for that purpose. (Fulton Light, Heat & Power Co. v. State of New York, 200 N. Y. 400.) This view is also strengthened by the fact that the parcel conveyed was for a mill site, which necessarily included the water in the creek required for its full enjoyment.

I, therefore, dissent from the conclusion reached by Mr. Justice Scott and vote to affirm the order appealed from.

■ Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and awards for damage ordered to be paid as directed in opinion. Order to he settled on notice.  