
    TRUSTEES, ETC., OF TOWN OF EAST HAMPTON v. VAIL et al.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    Grant from British Government—Description in Patent.
    Plaintiffs in ejectment for land under the water of a bay on the north side of Long island claimed under patents which conveyed lands bounded on the north “by the hay,” and on the south by the Atlantic ocean, “together with all havens, harbors,” etc., to the said tract -belonging, or in any wise appertaining. Held that, whatever might be meant by the term “bay,” the grant extended only to the water on the north, aitd did not include the lands in dispute, it not appearing that the bay on the north was entitled to be called a haven or a harbor.
    Exceptions from circuit court, Suffolk county.
    
      Action by the trustees of the freeholders and commonalty of the town of East Hampton against Jeremiah H. Vail and George M. Vail to recover certain land. There was a verdict for defendants, and plaintiffs’ exceptions were ordered to be heard in the first instance at general term.
    Exceptions overruled.
    Argued before BARNARD, P. J„ and DYKMAN and PRATT, JJ.
    Wilmot M. Smith, (Charles R. Street, of counsel,) for plaintiffs.
    Thomas Young and T. M. Griffing, for defendants.
   DYKMAN, J.

This is an action of ejectment for the recovery of land under the water of Ft. Pond bay, on the northerly side of Long Island. The plaintiffs claim title under a patent from Gov. Gen. Richard Nichols to John Mulford and others, for and on behalf of themselves and their associates, the freeholders and inhabitants of the town of East Hampton, in 1666, and a confirmatory grant from Gov. Gen. Thomas Dougan, in 1686, to Capt. Thomas James and others, freeholders and inhabitants of East Hampton. The primary and paramount question is whether the premises were included in the patents, and that depends upon the language of the instruments, in describing and bounding the same. That language is this:

“All that tract of land which already hath beene or that hereafter shall bee purchased for and on the behalf of the said towne, whether from the natives (Indian proprietors) or others within bounds and limitts hereafter set forth and exprest, vitz:—That is to say their West bounds beginning from the East limitts of the bounds of Southhampton (as they are now laid out and stak’t according to agreement and consent) so to stretch Bast to a certain Bond commonly called the Fort Pond, which lyes within the old bounds of the lands belonging to the Muntauke Indyans, and from thence to go on still East to the utmost extent of the Island, on the North they are bounded by the Bay and on the South by the sea or moine ocean. All which said tract of land within the bounds and limitts before mentioned, and all or any plantation thereupon, from thence forth are to belong and appertain to the said towne, and bee nothin the jurisdiction thereof, together with all havens, harbors, creeks, quarryes, woodlands, meadows, pastures, marshes, waters, lakes, rivers, fishing, hawking, hunting, fowling, and all other profflts, commodityes, emoluments, and hereditaments to the said tract of land and premises within the limitts and bounds aforementioned, described, belonging or in any wise appertaining.”

Then follows the usual habendum clause. The description of the premises in the confirmatory patent from Gov. Dougan is substantially the same. Ft. Pond bay is not within the limits and bounds named in either patent, but the plaintiffs insist that it was included therein, and conveyed thereby, by the words, “together with all havens, harbors, creeks,” etc., but it must be remembered that those words are followed by the word's, “within the limits and bounds aforementioned.” That clause is restrictive of all the subjects named, and therefore nothing is included in the patents, unless it be within the limits and bounds specified therein. The language is peculiar, and the description is somewhat uncertain. The west bounds of the premises begin at the east limits of the town of South Hampton. Then the language describes a single line stretching east to Fort Pond, and from- there still east to the utmost extent of the island, and there the line terminates. That line, therefore, includes nothing, but it is immediately followed by these words, “on the North they are bounded by the bay and on the South by the sea or moine ocean.” The premises described in the patent," therefore, are bounded on the west by South Hampton, on the north by the bay, and on the south by the Atlantic ocean. What body of water is intended to be designated by the word “ba3r,” as the northern boundary of the premises, is not very apparent. It seems to apply only to the sound, as that is the body of water on the north and the only water that extends along the whole of the north side. The word can scarcely apply to Ft. Pond bay, for that only extends for a short distance. Whatever it may designate, however, it carries the grant to the water only, and the water is the north boundary. . In respect to Ft. Pond bay, its south shore is the north bound of the premises. In respect to the contention of the plaintiffs that nothing else can pass under the word “haven,” the answer is that it is not essential that an3rthing should so pass. There may have been no quarries, and, if none, then nothing passed by virtue of that word. Much testimony was offered upon the trial to show that Ft. Pond bay was a good harbor, but it is not so secured by the circumjacent land as to be entitled to that designation. Like every lee shore, it is a secure and quiet place for vessels when the wind blows from the land, but when the wind is from the sound there is no protection. Upon careful consideration, we find no errors, and our conclusion is that the verdict was properly directed for the defendants, and the exceptions should be overruled, and judgment entered upon the verdict for the defendants, with costs. All concur.  