
    EDWARD ROBERTS, Respondent, v. AUGUST BAUMGARTEN, et al., Appellants.
    
      Decided March 30, 1885.
    
      Ejectment—evidence to support action.—Navigable stream, conveyance of land abutting on—Possession, insufficient evidence of-—Dam across stream—Deed from, Benson to Benson, liber 54, p. 321.
    Where the title is in dispute, the plaintiff must show either seizin or possession under claim of title by him, or some grantor under whom he claims, anterior to the defendant’s possession, otherwise the action must fail through the weakness of his own title.
    A deed by an individual conveying land abutting on a navigable stream, will only carry the grantee to high-water mark. The title to the land between high and low water, and to the bed of the stream, is in the sovereign and can only pass by his or its grant.
    Where the locus in quo is land in a navigable stream, between high and low-water mark, the entering thereon from season to season, cutting the grass growing thereon, and removing the same, is not sufficient evidence of possession as owner.
    Some of the parties under whom plaintiff claimed, constructed and maintained a dam across Harlem creek, at a short distance west of Third avenue between One Hundred and Sixth and One Hundred and Seventh streets, making a pond to the west of it (See Pandell’s Atlas, Book 8, p. 54, and Book 10, p. 55). Held, not to constitute any claim of a right to land under water under the creek to the east of it.
    In the deed from Benjamin Benson to Peter B. Benson, recorded liber 54, p. 321, the phrase “ mill stream ” in the description,—Held, under the evidence to refer to a race between two ponds and not to the creek between the dam and Harlem river. If, however, it did refer to that creek, and if the description conveyed the land under the stream,—Held, under the evidence, that it was not intended to convey the land under the creek east of the dam.
    From above principles held that plaintiff had neither shown seizin nor a possession under claim of title prior in time to defendant’s possession of the locus in quo, and consequently a judgment in his favor should be reversed.
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.
    Appeal by defendants from judgment entered against them, on findings and conclusions by a judge trying the action without a jury, by consent.
    
      The action was in ejectment.
    The facts sufficiently appear in the opinion.
    
      Cephas Brainard, attorney, and of counsel, and John E. Parsons, of counsel, for appellants,
    on the question considered by the court, argued :—I. To make out his case the plaintiff was compelled to prove title in himself and in those through whom his claim of title was derived (Lamont v. Cheshire, 65 N. Y. 30; Wallace v. Swinton, 64 Ib. 188).
    II. The special term erred in finding that the premises described in the complaint were conveyed by the deed from' Benjamin Benson to his son Peter. (1) Ño title was proved in Benjamin Benson to the bed of Harlem Creek. (a) The deed to him from Simon Johnson did not purport to convey the bed of the creek; on the contrary, the premises described extended “ southerly to Harlem Mill Creek.” (b) The testimony of Mrs. Van Arsdale as to the creek was that her father (Benjamin P. Benson, son of Peter) only used the creek “the same as any body else “ for navigation“it was public “a public stream,” “like all waters are, you know.” (2) The testimony of Mrs. Van Arsdale for the plaintiff, of Mr. Brown for the defendant, and the maps, showed that the creek was salt water, within the ebb and flow of the tide, and navigable. The well-settled rule of law is, that in the absence of a public grant, private ownership of lands bounded on tide water extends only to high-water mark (Wiswall v. Hall, 3 Paige, 313; 13 Central L. J. 3 ; Morgan v. King, 30 Barb. 9 ; People v. Canal Appraisers, 33 N. Y. 465).
    III. If it be assumed that Benjamin Benson did own the creek, his title did not pass to his son Peter by the deed of his farm north of the creek. (1) That deed contained no words apt to convey the bed of the creek. The words relied upon are “including the mill-stream, mill and mill-pond, with all its privileges and appurtenances, and to shut the mill-dam at the south side of the said millpond, where it now lays.” (a) These words obviously applied to the stream and pond above the dam. The creek was known as “Harlem Greek.” A salt water creek differs materially from a “stream.” (b) These words do not relate to the bed of the creek. They were intended to confer upon Peter such right to the stream mentioned, as was necessary for the use of the mill, and nothing more, i. e., the use of. the water. (2) The right to use a stream does not imply the ownership of the bed of • the stream; and the conveyance of a stream, with no terms of enlargement, operates only to transfer the right to the use of the water (Jackson v. Halstead, 5 Cow. 216 ; Nostrand v. Durland, 21 Barb. 418 ; Wiswall v. Hall, 3 Paige, 316 ; Luce v. Carley, 24 Wend. 451; Seneca Nation v. Knight, 23 N. Y. 498 Halsey v. McCormack, 13 Ib. 296). Howard v. Ingersoll (13 U. S. R. 380), cited by the plaintiff, is not in conflict with the above. The case involved the right to use the waters of the Chattahooehe river, not any question of the ownership of the bed of the river under a grant of the river.
    IV. The deeds from Benjamin Benson to his two sons establish that the creek was treated as the division between the two farms. The argument then proceeded upon the effect of the deeds in connection with the testimony.
    
      Benjamin A. Willis, attorney, and of counsel for respondent,
    on the questions considered by the court, argued I. We have absolute proof of possession, under color of title, and it is to be presumed that the possession was immemorial and uninterrupted until the commencement of this action. Even in England the general practice is to begin the title so as to show the state of the evidence for a period of sixty years (3 Blacks. Comm. 196, Sharswood ed.). Forty years is the longest limitation in this country, and possession for that period confers a perfect title (Old Code, § 75 ; People v. Arnold, 4 Comst. 508 ; People v. Van Rensselaer, 5 Seld. 291).
    II. To recover in this action it was incumbent upon the plaintiff to show either title or actual possession of the premises, at the time the defendants entered (Lane v. Gould, 10 Barb. 254). The plaintiff, at the trial, met both requirements. How much stronger than needful our proof, when “a prior possession for less than twenty years, will support ejectment against one who shows no lawful title ” (Teller v. Lorillard, 10 John. 338 ; Hopkins v. Mason, 61 Barb. 469 ; Robie v. Sedgwick, 35 Ib. 319).
    HI. The subsequent possession of defendants, when rebutted by this prior possession, which is evidence of a fee, cannot prevail (Teller v. Lorillard, supra; Allen v. Broughton, 2 Saund. 111; Bakeman v. Allen, Cro. Eliz. 437 ; Jackson v. Hazen, 2 John. 22 ; Jackson v. Myers, 3 Ib. 388 ; Jackson v. Harder, 4 Ib. 202).
    IV. The word “ stream ” in the deed of Benjamin Benson to Peter B. Benson, dated April 2, 1791, comprehends “the water,” “the bed of the stream,” together with the shores and the tide-ways, banks and everything between high and low water mark (Howard v. Ingersoll, 13 How. U. S. 426 ; Woolwich on Sewers, 51; Woolwich Law of Water Courses, 3 ; Hale De Jure Maris, chaps. IV., V.). The word stream is an apt word to convey a fee (Touchstone, 89 ; 4 Kent Com. 2 ed. 467 ; Leroy v. Platt, 4 Paige, 82 ; Comyn’s Dig. Grant, E. 11; Blaine v. Chambers, 1 S. & Rawle, 169 ; Bacon v. Bowdoin, 22 Pick. 401; Whitney v. Olney, 3 Mason, 280). To add yet greater force to the construction upon which plaintiff insists, it remains to consider together the two deeds given by Benjamin. Benson, he at the date thereof having owned on both sides of the mill stream, and the stream itself. 1st. To his son, Peter B. Benson, April 2, 1791; 2d. To his son, Sam Benson, May 2, 1791, both introduced as plaintiff’s exhibits. In the first deed, he conveys not only the northern part of the farm, but the mill, mill-stream and all appurtenances, water-courses, &c., to Peter B. He desires him to use and enjoy the mill; to do this, he gives him not only the mill but the mill-stream—the whole of it. He needs must have control of it from bank to bank. How otherwise could he make dams across ; how otherwise shut down the dam on the south side; how otherwise could he take advantage of high tides and fill his interior mill pond through the flood-gates ; how otherwise could “ he so use his own as not to injure anotherhow otherwise escape committing continued trespasses ? The intent is conclusive, the description plain. But notice the description in the second deed, “All that farm, &c., bounded as follows: beginning at black oak stump, at corner of land belonging to, etc., on .the south side of Mill Creek or Pond, running thence by various courses to drowned meadows ; thence along drowned meadows or marsh, till it comes to the mouth of Mill Creek, thence westerly along said mill creek or pond to the place of beginning, being the estate of Benjamin Benson, south of Mill Creek and Pond.” The black oak stump was on the bank—not between high and low. water ; it would not grow there. The location of this stump brings the suit at bar precisely within the reasoning of Babcock v. Utter (1 Abb. Ct. of App. Dec. 27; 1 Keyes, 115). The foregoing anthority is sustained in Smith v. Slocum (9 Gray, 36); Sibley v. Holden (10 Pick. 249); Tag v. Keteltas (48 Super. Ct. 241; affirmed, 92 N. Y. 625); Robinson v. White (42 Maine, 209). Another important feature of the latter deed to Samson Benson is, that it omits the words “meadows,” “marshes” and “water courses,” which the former deed contains. Therefore, the exclusive language of the deed to Samson Benson just as effectually interprets the intent of the grantor as the inclusive language of the deed to Peter B. Benson.
    V. Conceding that the stream was originally the property of the sovereign, yet the use of the stream for mill purposes, the dam at Third avenue from 106th to 107th . street, completely across the stream, dividing it from the pond, forming a basin on the property in controversy, the mowing of both banks for ninety.years would bar any claim of the state, would create the presumption that our grantor had received a patent therefor. Here is a case precisely in point (Yates v. Van De Bogart, 56 N. Y. 526 ; Patten v. Bigelow, Peters C. Ct. 452 ; Stevens v. Hauser, 39 N. Y. 302). It is settled that a defendant cannot avail himself of an outstanding title, which is barred by the statute of limitations—it must be a subsisting available title, on which the asserted owner might recover in ejectment (Hoag v. Hoag, 33 N. Y. 473). A mere intruder, and such is the defendant, will not be allowed to set up title in a stranger (Duncan v. Harden, 4 John. 202 ; Klock v. Hudson,. 3 Ib. 375 ; Chapman v. Del. & Lack. R. R., 3 Lans. 261). The premises of the defendants, however, are at fault; while it is true that that the court of appeals have decided in Mayor v. Hart (95 N. Y. 443), that by virtue of Pongan Charter that tideway and rivers around Manhattan Island vested in the city, subject to certain equities. It is, however, equally true the city never claimed this property; it is not in the tideway of the rivers embraced in the decision; the city permitted the' stream to be crossed with avenues, &c., for the reason “that all the inland creeks, meadows, marshes and fisheries within certain bounds therein contained were conveyed to the freeholders of Harlem by a more ancient grant, that of Governor Nichols ” (Riker's History of Harlem, 252, 271).
   By the Court.

Sedgwick, Ch. J.

The judgment appealed from has awarded to the plaintiff possession of a number of lots on the south side of 107th street, commencing at a point 135 feet easterly from the Third avenue and running easterly 200 feet on that street, and then running 400 feet back to the centre of the block. Formerly, the bank of a creek ran from about the southwesterly corner of the space now occupied by the lot, to about its north-easterly comer. The claim of title made by plaint,iff does not extend to that part, that is southerly of the fine that would be made by the bank, and it would be necessary that the judgment should be modified in this respect, if it were not necessary to hold under the present facts that the judgment should be reversed, because of the plaintiff’s failure to show title to the northerly part of the lots.

The northerly part referred to was, at the time of the earliest deeds in evidence, land under water, over which the tide ebbed and flowed. This land has since that time been filled up, but there was no proof that any one under whom the plaintiff claims has ever been in actual possession of the filled-in land, unless the presumptions upon facts that will be noticed, are that there was such actual possession. It is virtually conceded, that the land of which the bank was a part, did not belong to any ancestor in title of the plaintiff. The plaintiff claims under Peter B. Benson, who, it is virtually admitted, had title to the land on the opposite side of the creek. The creek was a small body of water, that may be called an arm of the Harlem river. As the tide ebbed and flowed in it, the presumption would be that the stream was navigable (People v. Canal Appraisers, 33 N. Y. 472, opinion of Judge Davies). In this case its unnavigability was to be proved by the plaintiff. It is clear that the facts tended to show navigability in fact. The title to the land in question was then in the state or public, or in the city of New York (Mayor v. Hart, 95 N. Y. 443). No conveyance was proved to have been made by the city or the state. It therefore appears that the grantors in the deeds of Johnson to Benjamin Benson and of Benjamin Benson to Peter B. Benson, had no title nor by presumption actual possession of the land. An assumption that a grantor has title, if we assume that the deeds referred to described the land, is no proof of title. The production of a deed of conveyance upon the trial of an action of ejectment will not entitle the plaintiff to a verdict, when the title is in dispute. Nor will such evidence put the adverse party upon his defense. He must show in addition either that his • grantor had the title, that is seizin or possession claiming the title (Dominy v. Miller, 33 Barb. 386). It is hardly necessary to say that being in actual use and occupation of the upland under a deed that extended to low-water. mark would not form an adverse possession of land between high and low-water mark, for it would not be a hostile act as respected the true owner of the land under water. The only testimony as to plaintiff’s remote grantor taking possession of the land in question, is that he, from season to season, cut and took grass on both sides of a piece of water, one side of which it is assumed was the locus in quo. The strongest ground for the assumption that the witness proved that the grass between high and low-water mark was cut, is that sometimes the counsel or witness would call the grass cut sedge. The witness was eighty-five years of age, and it is apparent from her deposition that she understood only a small number of the questions given to her. It is certainly consistent with the testimony that she gave, that the grass she referred to was not grass between high and low-water mark. But if it were, such a fugitive, intermittent act as going upon land, cutting grass and retiring from it from year to year, is not an act manifesting a purpose of taking possession as owner, if there be no other proof. It is' equivocal. It may refer to a claim to own the grass and not the land. It is not continuous enough, of and by itself, to constitute a notice of claim of title likely to reach the attention of the owner. There is no need here of referring to such an act excepting upon the kind of land in question (McFarlane v. Kerr, 10 Bosw. 256 ; Smith v. Levinus, 8 N. Y. 472 ; Yates v. Van De Bogert, 56 Ib. 526 ; Wheeler v. Spinola, 54 Ib. 377). But after a careful scrutiny of the testimony of the witness, I am convinced that she did not, and did not mean to testify that her family cut the grass on both sides of the stream at a point which would indicate this land. The thing she oftenest said, was that the stream she referred to was a sluice, a race, or canal, that her father had made to connect two ponds, one of which was to the west of the land in question, and the other in such a position that the land on each side of the connecting stream would not be near the land in question. The other witness on the same matter gave testimony favorable to the defense. My conclusion on this branch of the case is that the plaintiff faded to prove any title in any of his grantors, and also any possession of the land. I do not perceive that the will of Peter Benson declares in any way, even if his declaration could make a title, that he had been in possession of any land between high and low-water marks. Nor is the keeping possession and using of the dam, any claim of a right to land under the creek to the east of it. The dam could have been used, as ib was, consistently with the ownership of the land to the east being in the public. The most that would be involved would be a claim to a right to have the tide flow over the land in question to the gate in the dam. This action has no regard to such a claim.

I am further of opinion, that the deed on which plaintiff relies for proof of title, does not describe land between high and low-water mark in Harlem creek, between the dam and that river. The description is “all that messuage, being all my estate to the north of- the mill-pond, between the fence of the widow Storm and the road leading to Harlem, including the mill-stream and mill and mill-pond, with all its privileges and appurtenances, and to shut the mill-dam at the south side of said mill-pond, where it now lays.” The only words here that can plausibly be considered to include the premises are “the millstream. ” The learned counsel for respondents claims that the creek to the east of the dam had been artificially made by the Bensons. The evidence does not seem to me to show that labor had been used on any place east of the dam. The mill-stream or canal referred to by Mrs. Van Arsdale and Mr. McG-own was, as I have said, a race or sluice between the two ponds, so that if, in any sense, the creek below the dam was a mill-stream, there were in fact two mill-streams, and the collocation of the words in the description, applied to the physical facts, show that the deed meant the stream between the ponds that kept the mill supplied with a water-power it would have greater than if it depended alone upon the pond nearer to it. But if mill-stream, did mean the creek between the dam and the river, and if the description conveyed the land under the stream, which, however, is not decided, it is not a necessary result that the land in question was meant tobe conveyed. We must take it that the intention was to convey land in which the grantor had an estate. He refers to his estate in the land north of the pond, and is presumed to have referred to such estate as he liad in what was also conveyed. Now, it is manifest, that a stream that ebbs and flows does not describe a quantity of land under it of fixed dimensions. The land between high and low-water mark was not always under the stream and the presumption from the general description of the millstream, would be that the land above low water was not intended to be conveyed in favor of a person owning to low-water mark (Wheeler v. Spinola, 54 N. Y. 377). In this case Benson owned no part of the land under the stream formed by the creek east of the dam. It should not for that reason be inferred that the description was intended to convey more than it would if he had been or claimed to be owner of some of the land.

My opinion is that the judgment should be reversed, and a new trial ordered, with costs to abide event.

O’Gorman and Ingraham, JJ., concurred.  