
    Jesse Mott, Plaintiff, v. Walter F. Clayton, Defendant.
    
      Highways — rule as to the beds of highways laid out before the English occupation — effect of the Dutch capitulation and of subsequent English patents — when a description excludes the bed of a highway.
    
    Under the Dutch law, which prevailed in the colony of New York while it was a province of the States General, the fee of a -highway, and not a mere easement in it, vested in the public.
    The rights of the Dutch in the province of New York were finally determined by the terms of the capitulation made at, the time of the English occupation, and as a consequence of that capitulation the title to the bed of a road vested in the English government until granted by it.
    Upon the submission of a controversy without action, it appeared that the defendant declined to complete a purchase and refused to accept the plaintiff’s title to certain premises, forming part of an ancient highway which formerly traversed the city of Brooklyn (not beiug-one of those retained xvhen the system of .city, streets and avenues was adopted), and that the road had been for some years .abandoned and the land within its limits incorporated into city lots. During the Dutch occupation their authorities granted a patent or. charter to the . town of Brooklyn ; subsequent patents were" granted by the English crown covering all the lands within the limits of the town. The plaintiff had acquired, by conveyances from the city of Brooklyn, all its title to the land.
    
      Held, that the title of the plaintiff was good and that the purchaser was bound to accept it.
    Neither a description in a deed which runs to a road, and thence along the road, nor a description which commences at a point on the southerly side of a turnpike road and then runs on various courses and distances tó the southerly side of the said road, and thence along the said road to the point of beginning, conveys any part of the bed of the road.
    Submission of a controversy upon an agreed, statement of facts, pursuant to> section 1279 of the Code of Civil Procedure.
    
      Robert E. Wilson, for the plaintiff.
    
      Foley & Wray, for the defendant.
   Cullen, J.;:

The plaintiff agreed to sell and the defendant to purchase certain real estate in the city of Brooklyn. The defendant declined to complete the purchase on the ground that the plaintiff’s title was defective. The question of the validity of the plaintiff’s title is the only one submitted to ns for determination.

The northern front of the plot contracted to be sold falls within the limits of the old Brooklyn and Jamaica Turnpike Road. The submitted case concedes : “ That the Brooklyn & Jamaica Road was. an ancient highway and had been used as a road at the time that the colony of Rew York was a province of the States General and when it was in the possession of the original settlers and subject to the dominion- and laws of the Dutch government.” The history of this road is detailed at length in the report of Dunham v. Williams (37 N. Y. 251). For some years past the road has been abandoned. The plaintiff traces his title to so miich of the property as abuts the road, from one Sarah Lefferts, admittedly the owner of the adjoining farm, through mesne conveyances, including a deed' from Edward Copeland to Clarence D. Sackett continuously to himself., R'o criticism is made on .this chain of title so far as it relates to that part of the plot in suit lying south of the limits . of the old road.

The defendant, however, contends that two of the deeds in the chain of title were insufficient to carry the adjacent half of the road* assuming that Sarah Lefferts owned it. In the deed from Lefferts to Moser and others the description commences at a point on the southerly side of the turnpike road, then running on various courses and various distances to “the said last-mentioned road, thence along the said road to the point. of beginning.” The description in the deed from Copeland to Sackett begins at the corner “ formed by the intersection of the westerly side of Sackett avenue with the southerly side of the Jamaica turnpike ” and running various courses and distances to the “ southerly side of the Jamaica turnpike, thence easterly along the same to the point or place of beginning.” We think it too clear for debate that, under the authorities, neither of these conveyances included any part of the road. (Kings Co. Fire Ins. Co. v. Stevens, 87, N. Y. 287; Blackman v. Riley, 138 id. 318.) The plaintiff can, therefore, establish no title through this source.

But the character of this road was not the same as that of a modern highway. It was an old Dutch road. Under the Dutch law the fee of the highway, not the mere easement, was in the public. The original patent or charter from the Dutch authorities of the town of Brooklyn is lost. After the English acquired possession of the province two patents were granted to the town, one October-18, 1667, by Bichard Nicolls, Governor-General, and one May 13, 1686, by Thomas Dongan, Lieutenant-Governor. These patents granted to the patentees, “ for and on behalf of themselves and their associates, the freeholders and inhabitants of the Town of Brooklyn, their heirs, successors and assigns forever,” all the lands-within the limits of the town. On these facts it was held, in Dunham v. Williams (supra), that the title to the bed of the highway was not in the adjacent owners, but under its patents vested in the town of Brooklyn and the city, its successor. At an early date the road was acquired by á corporation for a turnpike. Subsequently it was changed into a plank road. The Court of Appeals, in the case cited, refrained from deciding whether the turnpike company had acquired an easement or the fee of the road. This question is not material in the present case, for the plaintiff has acquired, by conveyances from the city of Brooklyn and the Brooklyn and Jamaica Plank Boad Company, all the title of. each of those parties to the premises in suit. Therefore, under the authority of Dunham v: Williams, the plaintiff has perfect title to the land contracted to be sold.

Counsel for the defendant cites Mortimer v. The N. Y. El. R. R. Co. (57 N. Y. Super. Ct. 244) to show that the Dutch Colonial Government did not own the fee of the old highways existing at the time of’ their possession of the province. The opinion delivered by Judge Tbuax in that case goes to the extent stated. The burden of the argument of the learned judge is to establish the proposition that the Dutch never had any valid claim to the province of the-New Netherlands. In that conclusion Judge Freedman concurred, and further stated that “ neither the Dutch nor the Roman law ever prevailed in the State of New York de jure, and that the common law of England must be deemed to be the original source of all outlaw.” The proposition contended for by Judge Truax' is not decisive of the question involved, for the rights of the Dutch in the province were finally determined by the terms of the capitulation. (New York Colonial History, Holland Documents, vol. 2, p. 250.) The effect of the capitulation was considered in Dunhmn v. Williams, and it was there held that by virtue of the capitulation the title to the Bed of the road remained in the government-till the confirmatory grant to the town. The question discussed by the learned judge, in Mortimer v. Elevated Railroad, was not absolutely necessary .to the decision of the case. However that may be, in the respects cited, the opinion is directly opposed to' the decision in Dunham v. Williams. Nor does the authority of Dunham v. Williams stand unsupported by decisions in other - cases. In Carnal Appraisers v. People (17 Wend. 573) Sehator Beardsley held that the original grant of the Manor of Rensselaerwyck having been obtained from the Dutch government, its construction was to be controlled by the civil law and that the grant did not convey the bed of the. Mohawk river. (See, also, Commissioners of the Canal Fund v. Eempshall, 26 Wend. 404.) In Smith v. Rochester (92 N. Y. 463), in discussing the right of the People- to the beds of rivers, Chief Judge Roger said, in referring to the cases cited: “We think this -and similar cases might properly have been decided, for reasons peculiar to the Mohawk and Hudson rivers, upon the grounds stated in The Commissioners v. Kempshall, by Senator Verplanck and by the chancellor and Senator Beardsley in Canal Appraisers v. People. The titles granted to the original settlers in the Hudson and Mohawk valleys, as construed by the rules of the civil law prevailing in the Netherlands, from whose government they were derived, did not convey to their riparian owners the banks or beds of navigable streams. Upon the surrender of this territory the guaranty assured by the English authorities to its inhabitants of the peaceable enjoyment of their possessions simply confirmed the right already possessed, and the beds of navigable streams, never having been conveyed, became, by virtue of the right of eminent domain, vested in the English government as ungranted lands, and the State of New York, as a consequence of the Revolution, succeeded to the rights of the mother country.” This is equally true, of the beds of highways, except that in this case the Crown, before the revolution, granted its title in such beds to the town.

It is now too late to question the authority of Dunham, v. Williams. The road under discussion formerly traversed the city of Brooklyn for a distance of about six miles. It was not one of the highways retained when the system .of city streets and avenues was adopted. It has been almost wholly abandoned, and the land lying within its limits has been incorporated into city lots. The decision cited has become a rule of property in this city, and title to the abandoned part of the highway has been acquired on the faith of that decision. Its binding force should, therefore, not now be questioned.

There should be judgment for the plaintiff on the submitted case, that the defendant complete his purchase.

All concurred.

Judgment for plaintiff on submitted case, with costs.  