
    Scholle et al. v. City of New York.
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Boundaries—Evidence—Maps.
    In an action for trespass on land, defendant, claiming title to the locus in quo as within the tideway of H. river, and hence embraced in an ancient charter to it, introduced in evidence a map of that region, dated in 1819, on which appeared a pink line separating an area on the east, colored blue, from an area on the west, colored yellow. The premises in dispute were in the area colored blue. A surveyor testi-
    
      fled that the pink line showed the high-water mark, the area colored blue being within the tideway. Another surveyor testified that he had made a survey in 1886, and that his high-water line was almost identical with that shown by the map of 1819. A witness, who remembered the premises as far back as 1831, testified that high water never reached the premises, hut flowed against a natural embankment on the easterly side thereof. Held sufficient evidence to sustain a finding that the premises were not within the tideway.
    2. Adverse Possession—Evidence.
    Proof that plaintiffs and those under whom they claim had been in continued and uninterrupted possession of the premises in question from 1831 until the commencement of the action in 1887, and that the premises were inclosed by a substantial inclosure from 1831 until 1852 is sufficient to support a claim of adverse possession.
    Appeal from special term, Hew York county.
    Action of trespass by Jacob Seholle and other, executors, etc., of Abraham Seholle, deceased, against the mayor, etc., of the city of Hew York, for damages for unlawful and forcible entry by defendant upon plaintiffs’ lands, and the destruction of the fences surrounding the same. The complaint alleges that plaintiffs were seised in fee, and were in possession of certain premises in the Twelfth ward of the city of Hew York, in the block bounded eastwardly by Fifth avenue, and northwardly by One Hundred and Thirty-Eighth street, and southwardly by One Hundred and Thirty-Seventh street. The defendant denies plaintiffs’ title and possession, but admits entry upon the premises in question, and the destruction of the fences, and alleges lawful title to the premises. Early in the present century the property in question formed a portion of a large farm belonging to John Myer, the elder. After his death the farm was partitioned among his heirs. To one Garrett Myer (a son of John) was allotted a certain tract of this farm, claimed by the plaintiffs in this action to include the premises in question. Garrett Myer and wife, on July 7, 1825, conveyed to one Charles Henry Hall a tract of land in the Twelfth ward of the city of Hew York. Charles Henry Hall, the grantee, in 1831 constructed an earthen embankment, which commenced upon the present line of Fifth avenue at the upland or high ground which was at One Hundred and Thirty-Sixth street, and ran along the line of the avenue to about the northerly line of One Hundred and Thirty-Eighth street, as it now exists, and then ran westwardly along One Hundred and Thirty-Eighth street for a distance of at least 275 feet to the high ground, over near-Sixth avenue. This embankment was constructed by excavating the block in question to a depth of from 8 to 10 feet below the natural surface. The embankment, when completed, was 6 or 8 feet in height above the natural soil, and was about 15 or 20 feet in width upon its top,'with trees planted upon it, and with room for a carriage to drive over it. This excavation was for the purpose of a pond, and the water that accumulated in the pond was supplied from fresh-water springs existing to the westward of Fifth avenue, and within the limits of the excavation. Within the embankment, running along Fifth avenue, and between One Hundred and Thirty-Seventh and One Hundred and Thirty-Eighth streets, there was a sluice-gate erected, which was used to regulate the height of the water in the pond. The overflow went from the pond over the sluice-gate into the Harlem river. At or about this period of 1831 Charles Henry Hall was the ■owner of a large tract of land which was bounded southerly by One Hundred .and Twenty-Fifth street, and easterly by about the present line of Third avenue, westerly by about the present line of Eighth avenue, and northerly and easterly by the Harlem river. All of this farm was occupied by him as a residence; his dwelling-house being erected on One Hundred and Thirty-Second street, a little west of Fifth avenue. The entire property was inclosed, and was known to the public as “Hall’s Garden. ” Charles Henry Hall lived upon this property from 1831 until the date of his death, in the spring of 1852. During this period, while Charles Henry Hall was in possession of these premises, it is claimed by the defendant that the paper title was divested by reason .of the following proceedings: In the year 1839 the president, etc., of the Me-
    
      chanies’ Bank of the City of Hew York recovered a judgment against Charles Henry Hall for the sum of $4,611.40. Upon this judgment an execution was issued, and the interest of Charles Henry Hall to all property owned by him in January, 1839, in the Twelfth ward in the city of Hew York, was conveyed to one George Hawes, who thereafter assigned his certificate of purchase to one Isaac Adrianee, to whom a deed was thereafter executed and delivered by the sheriff Jacob Acker, conveying to him the premises in question by the same description as was contained in the deed from Garrett Myer to the said Charles Henry Hall. Defendant proved that on Hovember 8, 1839, Charles Henry Hall made a general assignment for the benefit of creditors to Charles M. Hall, conveying all his real and personal estate. But the sheriff’s deed to Adrianee conveyed all the estate which Hall possessed in the premises in question in January, 1839, and therefore antedated the assignment.
    The possession of the premises in question by Charles Henry Hall was never disturbed, and he continued in full and undisputed possession thereof until the date of his death, in the spring of 1852. Charles Henry Hall died intestate, leaving him surviving as his sole heirs at law two daughters,—one, Elizabeth, the wife of Lewis A. Sayre, and another, Mary Jane Hall. Isaac Adrianee died in the year 1862, leaving a last will and testament, which was duly probated, by which he devised all his estate, both real and personal, to his wife, Margaret E. Adrianee. Under date of Hovember 29,1872, and December 18, 1872, by two separate deeds, Margaret E. Adrianee, the widow of Isaac A., conveyed the premises in dispute to Benjamin A. Willis,describing the property as bounded upon the streets and avenues as they now exist. By deed executed in Hovember, 1872, Elizabeth Sayre and Lewis A. Sayre, her husband, and Mary Jane Hall conveyed to Benjamin A. Willis the same property by the same description. Benjamin A. Wiilis thereafter executed a mortgage which covered a portion of the premises in question to William H. Raynor and Lewis J. Phillips, securing the sum of $58,500, and another mortgage covering the remainder of the property to the same parties, securing the sum of $10,700. These mortgages were severally assigned to Abraham Scholle. Subsequently these mortgages were severally foreclosed in an action wherein Abraham Scholle was plaintiff and Benjamin A.Willis and others were defendants, and the premises covered by these mortgages were sold pursuant to the decree of the court by Edward S. Dakin, referee, and were conveyed to Jacob Scholle, one of the plaintiffs in this action, by two separate deeds severally dated the 1st day of April, 1880. Ever since the year 1873, Abraham Scholle, Jacob Scholle, and William Scholle were copartners in trade, and engaged in tile purchase of real estate; and in this entire transaction the purchase of the mortgages made by Abraham Scholle, and the purchase made by Jacob Scholle at the foreclosure sale, were made with copartnership funds, and in behalf of the firm. Abraham Scholle died in March, 1880, leaving a will, which was duly probated, by which he vested his estate, real and personal, in his executors as trustees, all of whom are parties plaintiff in this action.
    The premises in question were first taxed by the municipal authorities of the city of Hew York in 1842, and were assessed to Charles Henry Hall, as owner, down to 1856, and then to L. A. Sayre, Charles Henry Hall, and William R. Fosdiek, down to 1883. The entire amount of taxes and assessments that were levied on the premises in question have been paid by plaintiffs and by Benjamin A. Willis, the grantor. In 1883 the premises in question were leased by plaintiffs to one Daniel Fitzpatrick. There is a house standing on the north-west corner of One Hundred and Thirty-Seventh street and Fifth avenue, which has been there since 1877, and since that time has been continuously in the occupation of either Fitzpatrick or his tenants. The consideration of this lease was that Fitzpatrick should protect the premises in question from intrusion by strangers, and that he should fill in the same, together with other property, with good, wholesome earth filling. Subsequent to the execution of this lease, in 1883, a good, substantial, wooden fence was erected,, which inclosed the entire property in question, the cost of which was $487.27.
    Some time prior to 1821 a certain map was filed in the department of public works of New York city, made by one John Randall, a city surveyor, under contract with and by direction of the defendant in this action. There is nothing to indicate upon this map or sheet the meaning of the characters and hieroglyphics there depicted, but defendant claims that the heavy blue lines upon this map denote an arm of the I-Iarlem river, which extended up across the premises in question, and that the pink line on the map on the margin of the tract apparently flooded by this arm designated the line of ordinary high-water, thus locating these premises in the tideway. In support of this defendant read in evidence as admissions by the plaintiffs a portion of a petition presented by plainti ffs to the commissioners of the sinking fund, in which it was apparently admitted that the premises in question were situated below high-water mark; and offered in evidence a map,-attached to this petition, on-which the high-water line was depicted as shown on the Randall map. To-explain this extract from the petition the whole of that document was received, and plaintiffs were allowed to give in evidence the report and resolution of the commissioners of the sinking fund thereon. From these documents it appeared that in 1880 plaintiffs presented a petition to the commissioners of the sinking fund, alleging the filing of the Randall map, and that it would appear upon said map that a part of the lands described in the petition (which petitioners claimed they owned) were below the line of high water of the Harlem river, and averring that a cloud was. thereby cast upon-the plaintiffs’ title to said lands, and praying in conclusion that the mayor, aldermen, and commonalty of the city of New York should execute and deliver to the petitioners a confirmatory deed confirming to them their.title to-said premises. But in that petition the petitioners emphatically assert that the defendant has no valid claim against the said lands or any part of them. In these documents the uncertainty of the defendant’s right and the actual possession and claim of title of the plaintiffs are admitted, and there is a distinct admission “that the plaintiffs claim to be lawfully seised of the property, but that it appears from certain maps on file in the city departments that the property was formerly in the tideway of the Harlem river;” thus-showing that by the statements in that portion of the petition which defendant read in evidence, and by the map attached to the petition, plaintiffs meant, and tl^e commissioners of the sinking fund understood them to mean, that the lines on the Randall map constituted a cloud on the title of plaintiffs which they wished to have removed. From the terms of this report and resolution, by which plaintiffs appear to acquiesce in this disposition of the matter, the court may be led to ask why the dispute was not settled in accordance with the resolution. The comptroller in office at that time, on finding that nobody would bid for the right, title, and interest of the city, which alone he was authorized by the resolution to sell, offered to give a warranty deed, whereupon he obtained a purchaser. On finding that the city would not give a warranty deed, first, because the resolution under which the sale took place did not authorize it; second, because such a deed would be void for champerty as plaintiffs were in actual possession under a hostile title,—this official instructed the bureau of city revenue of the city of New York to take forcible possession of the premises. Thereupon the former petitioners and present plaintiffs brought this action of trespass, and the case was tried before Judge Beach at special term, without a jury. By stipulation the damages were reduced to the value of the property destroyed, and after trial judgment was rendered in favor of plaintiffs, adjudging the title to the property to be in them, and that defendant pay the damages. From this judgment defendant, appeals.
    Argued before Van Brunt, P. J., and Macomber and Bartlett, JJ.
    
      
      David J. Dean, for appellant. Alexander B. Johnson, for respondents.
   Bartlett, J.

This action is brought to recover damages for an alleged trespass committed by the defendant in entering upon certain premises on the west side of Fifth avenue between One Hundred and Thirty-Seventh street and One Hundred and Thirty-Eighth street in the city of Hew York, and removing therefrom and destroying a fence which inclosed the property. The plaintiffs proved their possession of the premises under a claim of ownership. The entry and the removal of the fence by the defendant were admitted. These acts could only be justified by showing that the title to the land was in the defendant. This he sought to do by proof that the property was situated in the tideway of the Harlem river, and hence passed to the city of Hew York under the Dongan charter of 1686. Mayor v. Hart, 95 N. Y. 443. But the plaintiffs introduced evidence to the contrary, tending to show that the ordinary line of high water was originally east of the premises to which this suit relates. On this issue the learned trial judge held with the plaintiffs, and we discover nothing in the record which should lead us to interfere with his finding. There is no evidence in the case going back to the time of the Dongan charter, to show us where the ordinary high-water mark of the Harlem river was, 1686. The earliest proof in this record as to the actual location of the line of high water near the property in question is furnished by what is known as the “Bandall Map, ” which was made for the city by a surveyor named John Bandall, Jr., and was filed in the office of the street commissioners in or before the year 1821. The particular sheet of this map which embraces the property in dispute is dated May 18, 1819. It shows a pink line, separating an area on the west, colored yellow, from an area on the east, colored blue. Both the yellow portion and the blue portion of the map bear symbols which are evidently intended to indicate the presence of grass. There are no words on the map to show what line, if any, was intended to represent the high-water mark of the Harlem river; but Mr. Silas Ludlam, an old and experienced surveyor, testified that the pink line, which has been mentioned, dividing the high grass and the low grass, showed the limit of ordinary high water on the map. To confirm the correctness of the Bandall map, the defendant proved by another surveyor, who made a survey of the upper part of Hew York island in 1886 for the purpose of locating the ordinary high-water line, that after the completion of his work he compared the results with the lines shown on the Bandall map, and found that those indicating high-water mark were almost identical. If the pink line on the Bandall map represents the actual location of the original line of ordinary high water on the. Harlem, the property in question must be within the former tideway. But the trial judge preferred to rely upon the testimony of living witnesses, rather than upon the map; and, indeed, some doubt may well be entertained as to the competency of this map as evidence in favor of the defendant, in view of the fact that it was prepared at the instance of the very municipal corporation which now puts it forward as the main foundation for the claim of title asserted in the present litigation in its behalf.

Hone of the witnesses called on the trial could recollect the loons in quo as far back as 1821, the year in which the Bandall map appears to have been filed; but Walter Brady, a witness for the plaintiffs, remembered the locality as long ago as 1831, when Mr. Charles H. Hall, who then occupied the property, caused a fresh-water pond to be constructed there. “The line of ordinary high water, ” says this witness, “opposite the block between One Hundred and Thirty-Seventh street and One Hundred and Thirty-Eighth street was somewhere about Fifth avenue—along the line of Fifth avenue.” This would leave the premises in controversy outside the tideway. Again the witness says: “I think high-water line was along by Fifth avenue. When the tide flowed up at high water at this place at Fifth avenue there was a high embankment there against which it flowed. ” And the witness explained that he did not mean an artificial bank built by Mr. Hall to inclose or retain his pond, but a solid bank, which existed there before any artificial construction, and against which the tide flowed at high water about on the line of Fifth avenue. In 1831 Mr. Hall seems to have determined to’devote a portion of the farm which he occupied to the purposes of a pleasure garden, and he then constructed the pond which has been mentioned upon the property to which this action relates. The pond was retained in part at least by embankments or causeways upon the east and north; and in the embankment to-the east there was a wooden sluice or flood-gate. According to Dr. Lewis A. Sayre, who knew the place as early as 1846, the embankment remained there-until after Mr. Hall’s death, which occurred in 1852. A portion of it had broken away, permitting the surplus water from the pond to overflow into-the marsh beyond, and there were parts where the muskrats had eaten away a great deal of the bank. As against the explicit testimony of the witness Brady, to the effect that the ordinary high-water line of the Harlem river was east of these premises in 1831, we have nothing but the statements of a number of witnesses for the defense that, years afterwards, they had known the tide to flow in over the locality where Hall’s pond is proved to have been situated. An inflow of this character, however, due to an artificial excavation upon the property and to breaks in the embankment about that excavation, is of little or no importance in determining the location of the original tideway. The earliest testimony given by any living witness as to the line of ordinary high water with reference to this land shows that the tide did not usually flow over it, and the court below was justified in accepting this as-more satisfactory than the inferences to be drawn from the Randall map, or from what occurred after the pond was made, and the retaining bank began to deteriorate. The adverse possession upon which the plaintiffs also rely appears, to us to have been sufficiently made out. There is proof enough to sustain the finding that the premises were protected by a substantial inclosure during Mr. Hall’s occupancy from 1831 to 1852. See Trustees v. Kirk, 84 N. Y. 215. The judgment below should be affirmed, with costs. All concur.  