
    In the Matter of The City of New York, Appellant and Respondent, Relative to Acquiring Title to Real Property Necessary for the Establishment of a Public Beach in the Borough of Brooklyn. Charles L. Feltman et al., Respondents and Appellants.
    (Argued March 23, 1931;
    decided April 7, 1931.)
    
      
      Arthur J. W. Hilly, Corporation Counsel (Patrick S. MacDwyer of counsel), for City of New York, appellant and respondent.
    The main ocean never extended above low-water mark on the shore of the open sea coast and the express fixation of the main ocean as the external or open sea boundary of the territory granted to the town of Gravesend, carried the title of the town to the low-water mark of the ocean. (People ex rel. Morris v. Supervisors, 73 N. Y. 393; Baker v. Hoag, 3 Barb. 203; United States v. Grush, 26 Fed. Cases, 48; Constable’s Case, 5 Coke, 106a; Embleton v. Brown, 3 El. & El. 234; Reg. v. Musson, 8 E. & B. 900; Queen v. Keyn, L. R. 2 Exch. 63; De Lovio v. Boit, 7 Fed. Cases, 418; United States v. Newark Meadows Imp. Co., 173 Fed. Rep. 426; Trustees of Brookhaven v. Strong, 60 N. Y. 56; Robins v. Ackerly, 91 N. Y. 98; East Hampton v. Kirk, 6 Hun, 257; 68 N. Y. 459.) The letters-patent under which title is claimed to the lands under water were insufficient to convey title to the claimants. (People v. Schermerhorn, 19 Barb. 540; People v. Livingston, 8 Barb. 253; Bardes v. Herman, 144 App. Div. 772; Mayor v. Hart, 95 N. Y. 443.)
    
      Henry A. Uterhart and Joseph Gazzam for Charles L. Feltman et al., respondents and appellants.
    The colonial patent did not grant title to the foreshore to the town of Gravesend. (Town of Southampton v. Mecox Bay Oyster Co., 116 N. Y. 1; Somerville v. City of New York, 78 Misc. Rep. 203; People v. Steeplechase Park Co., 82 Misc. Rep. 247; Sage v. Mayor, 154 N. Y. 61; Matter of Mayor of New York, 182 N. Y. 361; Tiffany v. Town of Oyster Bay, 209 N. Y. 1; Rockaway Park Imp. Co. v. City of New York, 140 App. Div. 160; Furman v. Mayor, 5 Sandf. 16; Langdon v. Mayor, 93 N. Y. 134.) The claimants’ title to parcel 35 was not lost by submergence. (People v. Steeplechase Park Co., 218 N. Y. 459.)
   Per Curiam.

We agree with the conclusion of the Appellate Division as to parcel 84-A. The southerly boundary of the Colonial grants to the town of Gravesend was the high-water mark of the ocean. On February 2, 1898, the Feltmans owned the upland above the high-water mark of that date and by a grant from the State owned the land under water from that high-water mark south to the southerly limits of the grant (parcel 35). Upon the rehearing the Special Term must award compensation for the value not only of parcel 84-A but also of parcel 35, if any.

The order of the Appellate Division should be modified in accordance with this memorandum, and as thus modified affirmed, with costs to the owners, and the questions certified answered as follows: Question No. 1 in the negative; Questions Nos. 2 and 3 in the affirmative.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Ordered accordingly.  