
    Elizabeth D. De Lancey, Respondent, v. John P. Hawkins, Appellant; Elias D. Hunter and Others, Respondents.
    
      Maintenance, upon lands under water, of mcwine railways—it will not constitute an adverse possession—a deed by the State of lands under navigable waters — what amounts to a reservation of the right to make subsequent grants to ripm'ian owners — admission made by a party in possession.
    
    The maintenance, upon land under water, of marine railways, extending 550 feet' from high-water mark, and used for hauling ships out of the water, is not such a possession as necessarily requires the implication of a grant in fee to render it lawful, and,' therefore, is not available to support the defense of adverse possession where the owner of the legal title seeks to recover the fee.
    Under a clause contained in a deed executed by the Comptroller of lands lying under the waters of Long Island’Sound, making the rights acquired by the grantee “subject to all claims which the People of said State have therein,” the State reserves the right to make other grants to riparian owners for the “ purpose of promoting the commerce of, said State and for the beneficial enjoyment of the adjacent owner.”.
    Where, however, a riparian owner to whom such a grant is subsequently made . builds a marine railway for his own private benefit, such grant is no defense to an action of ejectment, brought by the grantee named in the Comptroller’s deed. - ' ■
    
      Semble, that it would he otherwise if the riparian owner had built a wharf to which the public would be entitled to access upon paying wharfage.
    A single statement by a party; acknowledging that lie claims no title, fastens a character upon his possession which makes it unavailable for the establishment of a right by adverse possession.
    Appeal by the defendant, John P. Hawkins, from a judgment of the Supreme Court in favor of the plaintiff and the defendants Elias D. Hunter and others, entered in the office of the clerk of the county of Westchester on the 26th day of December, 1896,. upon the verdict of a jury rendered by direction of the court.
    
      Lawrence Kneeland, for the appellant.
    
      Walter D. Edmonds [John Hunter, Jr., with him on the brief], for the respondents.
   Goodrich, P. J.:

The action is ejectment to recover the possession of a strip of land in front of the shipyard of the defendant Hawkins:, at City Island, and extending out about 400 feet from high-water mark. The judgment awarded to the plaintiff the possession of three undivided fourth parts, and to the defendants, other than the defendant Hawkins, the possession of one undivided fourth part of the premises in question. The premises are situated under the waters of Long Island Sound, adjacent to Minneford’s, now called City Island, and are part of a large tract which extends from high-water mark outward and under the watérs of the sound on the east, west and south sides of the island.

These lands were granted by the English Crown to Benjamin Palmer, his heirs and assigns, by royal patent dated May 27, 1763, upon the tenure of free and common socage, and upon the express condition that he pay to the said Crown or its successors, yearly forever, a certain rent. At the time of this grant Palmer was the owner of the entire upland of the island.

The Colonial Assembly, and afterwards the- Legislature of this State, the People having succeeded to the rights of the Crown, passed a number of acts directing the grantees of lands chargeable with perpetual rents to redeem from their defaults, and, in case of their failure to do so, declaring that such lands should be sold by reason of such non-payment. It is not necessary to refer to these acts, other than chapter 222 of the Laws of 1819, whereby the lands so forfeited were directed to be sold by the Comptroller of the State. Under this act the lands were sold on March 26, 1826, but the deed was not delivered until April 5, 1836, when the Comptroller duly transferred by patent the said premises to Elias D. Hunter, who, on April 1, 1851, leased the premises to Joshua Leviness for a term of six years, and at the end of that term made a further lease of said premises for a term of five years, both of which leases were duly recorded. Hunter died on March 22, 1865, leaving a will, under which the property passed, subject to the life estate of "his widow, to his two daughters, Mrs. De Lancey, the plaintiff, and Adele Hunter, share and share alike. The widow died, leaving Adele surviving her, but she is also dead, leaving her surviving as next of kin and only heirs at law the plaintiff and one John Hunter.

Thus it appear that the plaintiff was the - owner of three-fourths of the estate, and John Hunter was' the owner of one-fourth, as tenants in common. On December 12,1893, John Hunter conveyed his interest in the premises to the defendants other than the defendant Hawkins.

In the spring of 1867 one Fordham, who, by various mesrie conveyances originating with Palmer, had become owner of a portion of the upland, leased the same to one Hillman. The lease is not in evidence, but I assume that it conveyed the same premises as were subsequently conveyed by Fordham to. Hillman, in'April, 1872. The premises in this deed had' a frontage on the sound of about 192 feet. When Hillriian obtained his lease he constructed certain shipways or marine railways in front of such premises, at a cost of from $8,000 to $10,000. These were designed and used by Hillman for the purpose of' hauling out vessels from the water to the land, and they extended some 400 feet below high-water mark. In 1877 Hillman leased the premises to the defendant Hawkins. In December, 1886, Hillman, at the request of Hawkins, procured a grant from the State of the premises under water, upon a part of which the railways were built. The grant was both for promoting the commerce of the State and for beneficial enjoyment. These premises, the subject of this action, are said in the grant to contain one and four hundred and seventeen thousandths (1.417) acres, more or less, and are a part of the strip of land under water contained in the Palmer patent.

On December 1, 1887, Hillman and wife conveyed the upland to the defendant Hawkins, and also gave him a quitclaim deed of the premises described in the grant. Previously to this time, and when he went into possession of the premises under the lease, Hawkins partially rebuilt the marine railways, and extended them out to a distance of 550 feet from high-water mark. This structure was of a somewhat more durable and permanent character than that which had been erected by Hillman.

On April 5, 1894, the plaintiff conveyed to Walter D. Edmonds the undivided fourth of the lands in.question under water, being that part which she had inherited from her sister Adele, and this action is instituted by Edmonds in the name of the plaintiff, pursuant to section 1501 of the Code of Oml Procedure. The defend-, ants, other than the defendant Hawkins, were made parties defendant upon the allegation that they had' refused to join as plaintiffs in the action.

The complaint alleges that the defendant Hawkins is wrongfully in possession and unlawfully holds possession of the said lands under water, and demands judgment for the plaintiff for the possession of three undivided parts thereof. The defendants, other than the defendant Hawkins, answered and demanded judgment against the defendant Hawkins for the possession of the other fourth part of the premises. The defendant Hawkins admits that he has entered upon the possession of the premises, but denies that the same is. unlawful, and alleges that neither the plaintiff, nor any one from whom she derives title, was seized of the premises within twenty years before the commencement of the action, and that he, the defendant Hawkins, and Hillman have held undisputed and possessed the premises adversely to' the pretended title of the plaintiff for twenty years, and that as owner in fee in possession of the upland he has all the riparian rights appertaining thereto, including the right to build and maintain a marine railway, which has been used by him in his business of shipbuilder.

The issues thus framed came on for trial before the Trial Term iu Westchester county., At the close of the testimony, the plaintiff’s counsel moved for the direction of a verdict in favor of the plaintiff and the defendants, other than the defendant Hawkins, and the defendant Hawkins moved for the dismissal of the complaint and of the demand of the other defendants for affirmative relief. This, motion was denied, and he excepted and subsequently asked to go to-•the jury upon the question whether so much of the premises as are covered by the marine ways had been actually held by the defendant Hawkins and his grantors adversely to the plaintiff and the other defendants for more than twenty years before the commencement of this action. The court directed a .verdict as requested by the plaintiff, and from the judgment entered upon the verdict the defendant Hawkins appeals.

The learned justice based his refusal upon the authority of De Lancey v. Piepgras, which has been many times before the courts. The first report 'will be found in 63 Hun, 169; this was affirmed in 138 New York, 26. As reported in 73 Hun, 607, it was affirmed in 141 New York, 88. In the case as reported in 138 New York, the court sustained the title of Mrs. De Lancey to the lands embraced in her ¡latent, and held that the title of Piepgraa to ways of the same general character as those of the defendant Hawkins did not constitute adverse possession to the lands, or a permanent appropriation thereof. It is stated in the opinion of Judge Maynard (p. 46) that there was no permanent appropriation of the soil, that the structures in that case were of a temporary character ' and designed simply to afford a means of access between the upland and the navigable waters of the sound, and that a title in fee will never be presumed from user, where an easement only will secure. the privilege enjoyed, and that “ From the nature of the property, it is difficult to show such a" possession of lands under water as is required to support the presumption of a grant, and we fail to find any case where anything short of a permanent and exclusive occupation of the soil has been regarded as sufficient. (Buswell on Lim. & Adv. Poss. § 244; McFarlane v. Kerr, supra.)

The use which the appellant’s grantor made of this property, for any continuous period of twenty years, is not shown to have been of such a kind as to necessarily require the implication of a grant in fee to render it lawful, and it is, therefore, not available as a defense, when the owner of the legal title seeks to recover the fee.

By section 368 of the Code of Civil Procedure, in an action of this character, the person who establishes a legal title to the premises is presumed to have had possession thereof within the time required by law, and the occupation of the premises by another person is presumed to have been under and in subordination to such legal title, unless the premises have been held and possessed adversely to the" legal title for twenty years before the commencement of the action. This section was held to apply to the structure of Piepgras, arid we think it applies equally to the structure of Hawkins. We approve the decision of the learned .justice at Circuit in holding that the erections of the defendant Hawkins, although a little more permanent and substantial than those of Piepgras, were of the same general character. The denial of the request of Hawkins to go to the jury on that question was proper.

Since the argument of this case, and at the current term, the Court of Appeals has decided the case of Sage v. The Mayor, Aldermen & Commonalty of the City of New York (154 N. Y. 61). The premises which were the subject of controversy were lands in the upper part of New York city running, out into the East river, the plaintiff claiming title thereto under the charter of Governor Nichols and the defendant under the Dongan charter. The lands were what are called the “ tideway lands,”, between high and low-water mark. Judge Vann, in delivering the exhaustive opinion of the court, held that where lands are described in a deed, as bounded by a navigable river where the tide ebbs and flows the title ends at high-water mark, as the law stood in 1767, and as it stands to-day, and that while the title of such owners did not extend beyond the dry land, they were entitled, as against all but the Crown, as trustee for the People at large, to certain valuable privileges or easements, including the right of access to the navigable part of the river for the purpose of unloading boats, drawing nets and the like; that these riparian rights were property belonging to the riparian owner, who could not be deprived of them without his consent or by due process of law, although he could only use them subject to the rights of the public. He cited, ■ with approval, the remarks of Mr. Gerard in his valuable work on Beal Estate (4th ed. 853), where he said: “ It has been established in this State by judicial decision that the Legislature of the State has an inherent right to control and regulate the navigable waters within the State. * * * The individual right of the riparian owner was considered * * * as subject, to the right of the State to abridge or destroy it at pleasure by a construction or filling in beyond his outer line, and that, too, without compensation made.”

As the State has this power, it has equal power for the purpose of promoting the commerce of the State, or for the purpose of the beneficial enjoyment of the owner of the upland, to grant the land under water; and it made such grant to the plaintiff’s ancestors when by patent, in 1836, it granted to the plaintiff’s predecessors in title the land around a large portion of City Island between high and low-water mark, including the premises in question. The subsequent grant to Hawkins, in 1886, purported to be a grant of the premises in question for promoting the commerce of the State and for his beneficial enjoyment.

It will be observed that there is no evidence that, since the issuing of that grant, Hawkins has made any considerable improvement of the premises, his improvements having been made only when he went into possession under lease from Hillman in 1877. It must ■also he held.that the rights of a grantee-under a grant of the character of the Hawkins grant, must be construed strictly against the grantee.

Hawkins testified that hé got the Hillman grant from the State in 1886, because he wanted to have the right to work his railway, and did not claim to own any land below high water mark in fee. Hawkins, when under examination, testified : “ The way's are only used for marine purposes. Mr. Hillman got this grant of land under water .from the State. I thought it was his duty to do it to protect me, so that in case vessels ran in on the railways I had pro^ tection. They would pay for repairs on the ways, and they wouldn’t sue me for damages for having the obstruction there. . I did not know whether I had a right or not to put an obstruction out there without a grant frtim the State. It was built without a grant, but, as I told Mr. Hillman when I leased the place, I thought it was his duty to get a grant to protect me, which he did. I wanted to have the right to do work, and in case a vessel came ashore to get damages ; they couldn’t sue me, but I could make them pay for the damages they done me.” .This testimony becomes important in view of the law, Well stated in the case of Colvin v. Burnet (17 Wend. 564, 569), where the.court said :■ “It is well known that a single lisp of acknowledgment, by the defendant that he claims no title, fastens a character upon his possession which makes it unavailable for ages. No matter that in the language of these pleas, he and those under whom he claims may have holden peaceably, and without the hindrance, molestation or even claim of the ówúer.” And this would seem to dispose of Hawkins’ contention that he has ever held the premises by adverse possession against the other parties to the -action.

Neither does the easement of Hawkins as a riparian owner avail him. Such was the decision of the court in De Lancey v. Piepgras (supra). In accordance with the opinion of the court in that case, we are compelled' to affirm the judgment so far as it' awards the possession óf the premises.

It remains to examine the.effect of the inclusion in the judgment in ipsis verbis of the .proviso contained in the Palmer- patent, which Was referred to by Judge Maynard in the case of De Lancey v. Piepgras (138 N. Y. 47). It is to the effect that if Palmer, his heirs or assigns, shall at any time erect or build any wharf or any other building or thing whatsoever on the premises, or on any part thereof, so as in any manner to obstruct, hurt or prejudice the navigation of the said sound, or to make it- at any time less commodious for ships to navigate, then the grant shall be void, except sucli parts of the premises as shall at such times be covered with wharves or buildings by Palmer, his heirs or assigns, reserving to the Grown all rights and privileges in every part of the premises not covered with wharves or buildings, as aforesaid, as fully as if the grant had not been made.

Judge Maynard, in commenting upon this proviso, said : “ The property rights granted to Palmer were similar in terms to the grants of land under water by the commissioners of' the land office, and contained similar reservations, which secure to the people the same measure of enjoyment of the premises conveyed as they were entitled to before the conveyance, until the land has been actually appropriated and applied to the purposes of commerce, or for the beneficial use of the owner, by the erection of docks and other structures thereon. The deed to Hunter is expressly limited to the lands granted to Palmer and did not vest in him any rights which the Crown had reserved and which passed to the People as the successors of the royal power, and of which they did not become possessed by means of the forfeiture of the' grant.”

The Comptroller’s deed contained the following habendum clause, “ to have and to hold the same to the said party of the second part, his heirs and assigns, subject to all claims which the People of said State have therein.” Under this clause the State reserved the right to make other grants to riparian owners for the purpose “ of promoting the commerce of said State, and for the beneficial enjoyment of the adjacent owner.” (1 R. S. [9th ed.] 408.)

In the case of Sage v. Mayor, etc. (supra), the court said : “ While we think it is a logical deduction from the decisions in this State that, as against the general public, through their.official representatives, riparian owners have no right to prevent important public improvements upon tidewater for the benefit of commerce, the principle upon which the rule rests, although sometimes foreshadowed, has not been clearly set forth. Although, as against individuals or the unorganized public, riparian owners have special rights to the tidewray that are recognized and protected by law, as against the general public, as organized and represented by government, they have no rights that do not yield to commercial necessities, except the right of pre-emption, when conferred by statute, and the right to wharfage, when protected by a grant and covenant on the part of the State, as in. the Langdon and Williams cases. I think that the rule rests upon the principle of implied reservation, and that in every grant of lands bounded by navigable waters where the tide ebbs and flows, made by the Crown or the State as trustee for the public, there is reserved by implication the right to so improve the water front as to aid navigation for the benefit of the general public, without compensation to the riparian owner. The implication springs from the title to the tideway, the nature of the subject of the grant and its relation to navigable tidewater, which has been aptly called the highway of the world. The common law recognizes navigation as an interest of paramount importance to the public. Thus, when the king used to grant an exclusive right of fishing in navigable tidewater, as once he lawfully might, if, in the course of time, the nets or weirs interfered with navigation, they became a nuisance and could be abated as such. The grant was silent upon the subject, yet the courts held that whatever impeded the superior right, of navigation was impliedly excepted from the effect of the grant. So, as it seems to me, when any public authority conveys lands bounded by tidewater, it is impliedly subject to those paramount uses to which government, as trustee for the public, may be called upon to apply the water front for the promotion of commerce and the general welfare. The purpose for which the supreme authority holds the title to lands under tidewater is inconsistent with the power to grant any easement or right to those lands that will prevent it, when the necessities of commerce demand, from ‘wharfmg out’ to deep water, so that vessels can load and unload, and the interests of navigation be promoted.”

The result of these two decisions and the reservations of the Palmer patent and the Comptroller’s deed to Hunter, is that the State was in 1886 still the owner and possessed the power of .erecting wharves and structures so as to so improve the water front .as to aid navigation for the benefit of the general public, without compensation to the riparian owner,” navigation being an interest of paramount importance to the public,” and the State being possessed of these rights to grant, at least to the riparian owner (and to him alone, under the statute, 1 R. S. [9th ed.] 408, the law being-the same in 1886), the right to erect wharves and bulkheads in the public interest of navigation.

In pursuance of this power, the State, in 1886, made its grant to TIillman. for the purpose of promoting the commerce of the said State and for the beneficial enjoyment by Hillman of the premises upon which his marine railway was constructed. But the railway is a private enterprise and used by Hawkins only in the conduct of his own individual business, and no one can use the same without his permission. ' If Hillman liad erected a public wharf, the public would have been entitled to use it on payment of wharfage (Heaney v. Heeney, 2 Den. 625), and a very different question would have arisen. But this is not true of the structure of the defendant Hawkins, and the distinction is a clear one. It makes no difference that in an ultimate sense the structure is designed for the benefit of vessels employed in navigation. Its proximate use is for the individual benefit of the defendant Hawkins.

We are thus forced to the conclusion that the judgment must be affirmed.-

All concurred, except Cullen, J., who concurred in the result.

Judgment affirmed, with costs.  