
    The Rockaway Park Improvement Company, Limited, Appellant, v. The City of New York, Respondent.
    (No. 2.)
    Second Department,
    October 7, 1910.
    Water and watercourses—title to lands beneath, waters of Jamaica bay — title in sovereign and its grantees.
    The land granted to Jamaica under the Nicolls patent of 1666 and the Dongan patent of 1686 was bounded on the south by Jamaica bay instead of by the open sea, so that the lands below mean high water in Jamaica bay north of Rockaway.Neck remained in the sovereign and in its successor, the State of New York, and the title to such lands granted to the Rockaway Park Improvement Company by the State in the year 1899 is superior to that of the city of New York claiming under said Nicolls and Dongan patents.
    A title to such lands derived from the State is superior to the title of the city of New York claiming under the said Nicolls patent of 1666 and the Dongan patent of 1686, although the southern boundary of the tract thereby conveyed is stated to be “ the sea,” those words being used to describe Jamaica bay instead of the ocean.
    The fact that Jamaica had no title to the lands beneath Jamaica bay is shown by the agreement between Jamaica and Hempstead settling the boundary line made in 1684 before the Dongan patent with Jamaica wherein it is stated that Jamaica has “no pretence to Rockeway Neck that is Jameca,” and also by the fact that the State has made many grants of land beneath the water of Jamaica bay and has always asserted ownership thereof.
    As a usual rule a grant by the sovereign of land on tide waters extends only to the high-water mark, but such presumption gives way where a grant to the low-water mark is expressly made.
    Appeal by the plaintiff, The Eockaway Park Improvement Company, Limited, from a judgment of the Supreme- Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 15th day of June, 1909, upon the decision of the court rendered after a trial at the Queens County Trial Term, a jury having been waived.
    
      Leavitt J. Hunt [Robert McLeod Jackson with him on the brief], for the appellant.
    
      Clarence L. Barber [Theodore Connoly and Archibald R. Watson with him on the brief], for the respondent.'
   Thomas, J.:

Each party asserts title to some sixteen acres of land below mean high water in Jamaica bay, north of Eockaway Heck. The defendant traces title from the Hicolls patent of 1666 and the Dongan patent of 1686. The plaintiff claims under a patent made in 1685 by Governor Dongan to Palmer whereby Eockaway Heck to the Hempstead line was conveyed, and under letters patent to it made by the State in 1899. Defendant’s contention is that it owns all of Jamaica bay south of its upland, and, therefore, the land under the bay to mean high water on Eockaway beach. The Hicolls charter bounds the land granted to Jamaica “ South with the sea.” The defendant finds the intended sea at the main ocean, and so includes in its grant Jamaica bay and Eockaway Heck. But as early as December, 1684, two years before the Dongan patent to Jamaica, and one year before the Dongan grant to Palmer, it is in writing declared by Jamaica that it has “ no prtence to Eockeway Heck.” If this is an assertion that it did not own Eockaway Heck, it follows that it did not own to the main ocean, and the word “sea” would mean Jamaica bay. In such case the land granted to Jamaica would be bounded on the south by the bay. But the defendant urges that by the words used Jamaica was releasing, not denying, ownership ; that Hicolls had granted, and it was surrendering. To whom ? The words are interpolated in an agreement to settle the line between Jamaica and Hempstead, its neighbor on the east. This dispute was composed; the witnessing clause was written, and then followed before signature these words: “Mem We have no prtence to Eockeway Heck that is Jameca.” Two years later in the Dongan grant of 1686 to Jamaica this agreement and memorandum are recited, and the grant as described in the Hicolls patent confirmed, qualified by the line established by the towns. Had a release been intended, a more formal and definite instrument expectably would have been used and the person benefited made a party thereto, or at least mentioned. It is considered that it was not intended to execute a release running to the sovereign, and it is not suggested that it affected Hempstead. There will be occasion later to analyze the agreement, but as preliminary to other discussion it is remarked that while it was organizing -and perfecting its bounds and title, Jamaica in writing proclaimed that it did not claim the main ocean as its south line. But that Jamaica’s holding did not include the bay is made certain by the words of its grant. What do the Nicolls and Dongan patents to Jamaica grant? The Nicolls patent recites the purchase by Jamaica of lands, the improvement of part thereof and the settlement of families thereon, and'for a confirmation of the= possession and enjoyment of the premises ratifies, confirms and grants “ All that Tract of Land iv?h already hath beene or hereafter .shall bee Purchased for and on the behalfe of the said Towne of Jamaica whether from the Natives proprieto:rs or others wthin y® Lmitts and Bounds hereafter Exprest.”. The Dongan patent of 1686 states the same. That patent recites the Nicolls patent, the agreement of 1684- between Jamaica and Hempstead, allotments made by Jamaica, the application for confirmation of the tract contained in the former patent as limited by the agreement, and “ for a Confirmatioli unto the Present freeholders and inhabitánts of tlié said Towne * * * for ever in the Quiett and Paceable Possession and Enjoyment of the aforesaid Tract of Land and premissess Divissions alottments and Settlements made at Severall Towne Meetings,” the grantor ratifies, confirms and grants “ all the before ¡Recited and Parcells of Land Divisions Alotments and Setlements made at Severall Towne metings of the said Towne and" Premisses Sett forth Limitted and Bounded as aforesaid by the aforemenconed Pattent and Agreement.” This patent is to confirm the Nicolls patent in view of the allotments made and to be made, and the agreement with Hempstead. Therefore, the" Nicolls patent is the source of Jamaica’s title. But that patent grants only what Jamaica shall obtain from the native proprietors or others within limits. Hence reference must be made to other earlier or later grants. There are no grants to Jamaica affecting this question, save by the Indians. To such Indian grants recourse must be had. Them are three, one confirmed by Governor Stuyvesant on the" application in 1656, one of land west thereof and one of land northward thereof. The trial court found that such Indian deeds of 1655 and March 7 and 19, 1663,..did not include any of the premises in question. With this finding, and in the absence of evidence of other grants to Jamaica covering the land in question, I find no basis for defendant's claim. What Jamaica had or should get from others within limits the Nicolls and Dongan patents granted them. Jamaica never got from others the land in question. Therefore, the patents do not grant it. Townsend v. Trustees of Brookhaven (97 App. Div. 316) suggests some support to this conclusion. But the Nicolls and Dongan patents to Jamaica with exactness make the bay the south boundary. The antiquity of the grant seems to tempt to unneeded interpretation. The description in the Nicolls patent is “ The Easterne Bounds begining on the East side of the little Plaines to extend South East to Bockway Swamp Then North East from Hempsteed Bounds to runne west as the Trees are Markt on or about the Middle of the Hills untill it reach to flushing Creeke which are their North Bounds and divides them from the Towne of Flushing (according to an order made at the Gen:a11 Meeting at ye Towne of Hempsteed in the Moneth of March 1664) Then to Meete New Towne Bounds at ye Southward Edge of the Hills. The Northwest Corner begining at Certaine Markt Trees at the edge of the said Hills from wence to runne in a South Line to a "Certaine Biver that is to the East of Pleuders Neck and bounded South with the Sea.” This can .be traced on Stewart’s map of 1797. The first or easterly line runs southerly “to Bockway Swamp,” which is at the head of Bockaway river, now Hook creek. The second is the northerly line, which runs from Hempstead’s west line westerly, as shown by marked trees, to Flushing creek, and thence to meet the new town bounds at the southward edge of the hills to the northwest corner. The third or west boundary line runs from the northwest corner in a south line “ to a Certaine Biver that is to the East of Pleuders Neck.” This river is Old Seller river, also called Mill creek and Spring creek, and flows into Jamaica bay. The fourth or south hound is the “ Sea.” So the east line as described ends southerly at Bockaway swamp, the source of Hook creek, arid the west line ends southerly at Old Mill creek, both of which rivers flow into Jamaica bay. The defendant’s contention is that these east and west lines were by the word “ Sea ” protracted some four miles to the ocean to meet the claimed south line. But the lines end where the description stops them by \vords of unmistakable .location, and at their terminations is a body of water which is the sea and was known as such and was so called. Sharing the tides it stretches away to the southward to meet the main ocean, of which it is a part, with such environment of land as to permit identification by a name. The grants by the Indians to Jamaica by their descriptions exclude the bay, as found. It is expectable that the first settlers, looking out on this great water, would have spoken of it as the sea, as it technically and in fact was. The Indian deed of February 11,1666, conveys to Bustdorpe, that is, Jamaica, meadows and uplands, bounded by a “ Line from the head of the aforesaid Biver, to rune close to the South Line, being the South Sea,” and makes “ over all the Lands and Mead owes, within the said Bounds, from the Sea Southward, to the Hills upon the North.” The learned trial justice found “ That in the seventeenth century the words ‘sea’ and ‘bay’ were used to indicate what is now known as Jamaica Bay.” In 1674 the Jamaica town meeting allotted to one Oldfields a lot of land and limited it by a line that ran “ down to the sea,” and in 1683 a deed from one Lynas used the words “fronting upon the upland and the reare to the .seae as the rest of the lots doe.” The record further by instances illustrates this use of the word. It was similarly used in the Dongan patent to the adjoining town of Flatbush in 1685, where the language is “ from thence with a Southerly Line to the Kill or Creelce by the East of the Plunders Neck and soe alongst the said Kill to the Sea.” Each party invokes the agreement of 1684 between Jamaica and Hemp-stead. To appreciate fairly the agreement, the Nicolls patents to Hempstead of 1666 and 1667 should be considered. The patent of 1666 describes two lines running south or southward to the sea, constituting the eastern boundary, and a line “rune to tlie head or middle of Mathew Garretsons Bay * * * to the Sea,” and adds, “ They are bounded to West by the East Limitts of the Townes of flushing and Jamaica, and South by the Sea or Main Ocean.” Here the. “Sea” is particularized as the “Ocean.” It should be observed that the west bounds are Flushing and Jamaica, which aids the defendant. In the Nicolls patent of 1667 there is similar description, save the following substitution with reference to the Flushing .and Jamaica line: “ffrom ye North West Bounds aforespecifyed a' Lyne is to Bun crosse ye Land by the East Lvmitts of the Towne of Flushing & Jamaica & so to goe South to the Sea or Maine Ocean.” So Jamaica’s east line had been described in.the Nicolls patent of. February 15, 1666, and Hempstead’s west line by the Hicolls patents of March 6, 1666, and March 6,1667. Differences arose about the “ bounds of the townes ” and it was settled in the agreement of 1684, which provides “ that Jameca bounds Eastward betwixt Hemp-steed and them Shall bee and Remaine and Continue where their Indian Purchase line runs begining att the hills and. soe Running to the mouth of Rockeway Swamp which line is made by marked trees markt and run by the Indians, the former Owners of the Land.” It is plain that for the bounds of Jamaica the Indian line was adopted, and such line does not run to the ocean. The words above definitely stop it at Rockaway swamp. But to make it clear that Hempstead’s line was not limited by the termination of Jamaica’s line, it was immediately added “ this our Agreeing shall not hinder Hempsteed Men from Running there Antient line from the head of Mattagarisons bay south to the sea.” This left the line for Jamaica and Hempstead terminated just as the Hicolls patents placed it. But after' the testing clause had been written there seems to have been some further discussion or suggestion, and the words were added: “Mem We have no prtence to Rockeway Heck that is Jameca.” Then the agreement was signed, and thereafter \ Jamaica apparently was not content with the stipulation that its east line should run to “ Rockeway Swamps Mouth,” and "’"ere was added what the Dongan confirmatory patent to Jamaica calls a “ postscript ” as follows: “ Whereas it is mentioned in the within written Agreeing that Jameca bounds Shall run to Rockeway Swamps mouth it is to be understood that Rockeway River that runns out of Rockeway swamp Shall be Jameca east Bounds and that all the Meadows lyeing on the west side of the said River shall belong to Jameca.” That river is Hook creek, which empties into Mattagarisons bay, where Jamaica’s east line by the agreement ended and whence Hempstead’s west line continued to the ocean. This line, so clearly fixed by varieties of express statement, should not be disturbed by attempted interpretation. There is no ambiguity and construction is not required or proper. It is true that on several occasions Jamaica indicated a sense of proprietorship by taking action respecting fishing in the bay, the cutting of sedge grass therein and leasing lands therein. These matters sifted and appreciated in their proper proportion would be useful in case of doubt, but in view of the unequivocal language of the grants and agreement, they suggest nothing more than unwarranted, but desired, appropriation. Their force is diminished, if not neutralized or overcome by acts of ownership on the part of the State and submission thereto by the town. In 1822, by chapter 235, the State authorized the election of trustees to control the common lands and marshes belonging to the town “as far forth as the said town is entitled to the same.” In 1849 (Chap. 194) the State undertook the regulation of tlie-planting of oysters in Jamaica bay through the supervisors of the county, and since that time Jamaica has derived any authority exercised by it relating to leasing for oyster beds from the State, although it has been the policy of the State since 1895 directly to make leases for oyster beds in the bay and receive the revenue therefrom. The State has by many grants of land in Jamaica bay asserted its ownership thereof, and, as found by the trial court, without protest on the part of the town or of this defendant. Indeed, upon the application for the present grant to the plaintiff, the defendant was heard in opposition, but asserted no title to the land in question. In fact, it or its predecessors have never undertaken to convey title under water. Proprietary acts similar' to those here invoked were common on the south shore of Long Island, and their significance depends upon the title, real or color-able, pursuant to which they were done. In Lawrence v. Town of Hempstead (155 N. Y. 297) the town of Hempstead ineffectually relied upon such acts as against the holder of the legal title. The defendant’s counsel has gathered numerous private deeds, resolutions of the town of Jamaica and legislative acts that aid defendant’s contention. It is undoubted that from 1700 through the greater part of the nineteenth century Jamaica in resolutions used language that carried assertion of control and ownership to the bay. Hence, if for purposes of gaining title that is sufficient, Jamaica owns the bay. Attention is called to the Revised Laws of 1813 (Chap. 39), wherein the town of Jamaica is described as part of the western boundary of Queens county. The Stewart maps of 1797, already consulted, show the boundary line between Kings and Queens counties terminated at the ocean. But the Indian deed and patents end that line at Old Mill creek in language that no map may gainsay. The map of the division line between Hempstead and Jamaica, surveyed in 1878 by authority of the State, places the termination of the eastern line of Jamaica at the mouth of Hook creek, and the charter of Greater New York (Laws of 1897, chap. 378, § 1, as amd. by Laws of 1899, chap. '379, and Laws of 1901, chap. 466) shows that Jamaica’s east line does not extend southerly beyond the north shore of Jamaica bay. The defendant, by assertion, would protract this line, but preference is due to the definite boundaries designated in the patents. It is true that the Hicolls patent, after defining the boundaries earlier granted, adds, “ All wc.h said Tract of Land together with the Hecks there unto belonging wthin the bounds and Limitts aforesaid And all or any Plan tacón there upon are from hence forth to belong to the said Towne of Jamaica. Together with all Havens HarboT3 Creekes Quarryes Woodland Meadowes Pastures Marshes Waters Rivers Lakes ffishing Hawking Hunting and Howling And all other Profiits Commodites Emolumts and Iiereditam1? to the said Land and prmisses wthin the Limitts and Bounds afore mentionéd described.” The only words helpful to defendant are “ Havens Harbor? ” Considering the exact easterly and westerly lines delineated in the patents it would be more reasonable to look for the havens and harbors along the northerly side of the bay, within a line connecting such easterly and westerly lines at their southern termination, than for the purpose of finding “ Havens Harbor? ” to. carry such lines to the ocean, thereby taking in the bay and Rockaway Heck, neither of which is named or in anywise suggested by faint or remote reference. The patent contemplated that the town would divide, allot and distribute the land acquired to its inhabitants, and it will not be presumed, in the absence of clear and express words ” denoting it, that it was the intention to surrender for that purpose to a single town a part of the sea, whose tideway also reached the shores of the towns of Flatbusli and Flatlands, and included the beaches of Rockaway Heck, to which Jamaica made no prqtense. (Martin v. Waddell, 16 Pet. 367; De Lancey v. Piepgras, 138 N. Y. 26.) The improbability of giving such control of the bay to Jamaica is a matter of judicial consideration. (People ex rel. Underhill v. Saxton, 15 App. Div. 271; Town of Southold v. Parks, 41 Misc. Rep. 456, 461.) This improbability is strengthened by the Dongan patent of Hovember, 1685, to Flatbusli, where, in the description of the easterly line, it is stated, “ from thence with a Southerly Line to the Kill or Oreeke by the East of the Plunders Neck and soe alongst the said Kill to the Sea.” As already stated, Jamaica’s west line is described “ from wence to runne in a South Line to a Certaine Eiver that is to the East of Pleuders Neck and bounded South with the Sea.” The Flatbusli east line by no intendment or claim runs to the ocean, taking a portion of Jamaica bay and Eockaway Neck. How, then, can Jamaica’s west line, stopped at Old Mill creek, be protracted to the sea? Moreover, if Jamaica took the land under the bay, it took to high-water mark on all beaches south of it, thereby depriving the owner, whether the State or others, of uplands, to 'the adjacent beach to low-water mark. If the acknowledgment that Jamaica had no pretense to Eockaway Neck was a release to the State, then the State took back land only to high-water mark, and left Jamaica with land below high water, which it could not utilize except to obstruct the enjoyment of the uplands. It is not credible that the sovereign, .deemed to reserve.in private grants below high-water mark, would accept a release of land that limited it to high water. The patent to Palmer remains for discussion. I have earlier adverted to the inconsistency, even in view of the disclaimer in the agreement with Hempstead, of construing the patent to Jamaica as extending to the ocean, and including Eockaway Neck, but if the patent to Palmer extended to low-water mark, then it would be more difficult to conclude that Nicolls had already granted the same land under water to Jamaica, and that Dongan a year later than the Palmer patent confirmed Jamaica in the same holding. The trial court found that Eockaway Neck was originally granted by the Nicolls patent of 1666 to Jamaica, that the agreement with Hempstead “ constituted a surrender and release by the Town of Jamaica of its title to the lands and uplands on Eockaway Neck or Beach ” between mean high-water mark on each fide of the neck, whereby such lands became revested in the Crown,” and that the Dongan patent of 1685 vested the same in Palmer, limited, however, to high-water mark on the north shore. Palmer, by license of Governor Dongan, obtained title to Eockaway Nock from the Indians by deed dated October 27,1685, although there had been no release to the Indians nor former grant of the lands by the Indians. The order appointed Welles “ to Survey and Lay out for the Said John Palmer soe much of the

said Land and meadow belonging unto the said N eches as Lyes without the bounds of the said Towne of Hempstead.” The Dongan patent to Palmer, based on such Indian deed, bpunds the land “ on the East with Hempsted West Patient Line on the South with the Maine Sea or Ocean to Low Water Marlce and on the West with the Outt or Inlett which makes the Bay or Sound betwixt Jamaica and the said Tract Parcell of Neck of Land and on the Northward with the said Bay or Sound as it Runns East or Easterly untill it Comes unto or meets with Hempstead Line as aforesaid.” Now, observe the words, “ the Bay or Sound betwixt Jamaica and the said Tract,” that is, Rockaway Neck. Dongan, familiar with the entire situation, denies the bay to Jamaica. Then the description, “ with all and Singular its Rights, Members and Appurtennces togather with all and all manner of Messuages Pastures feedings Meadows Marshes Woods Underwoods Wayes if enees Lakes, Ponds Creeks Beach or Beaches Rivers Brooks Springs Hunting Hawking Fishing and Fowling and Appurtennces whatsoever to the said Parcell Tract or Neck of Land and Premissess or to any Parte or Parcell thereof in any wise belonging" Adjoyning or Appurtaineing To Have And To Hold the said Tract Parcell or Neck of Land and Meadow and all and Singular other the Premissess hereby granted,” etc. The usual rule that a grant by the sovereign of land on tide water extends only to ordinary high-water mark must give way to intention expressed to grant' to low-water mark. It was the intention that the grant should go to low-water mark on the south side, and with the subject in mind such explicit provision relating 'to the north side was omitted. The learned counsel for defendant in his succinct and competent brief finds as a reason for the omission the previous grant of the land below high water to Jamaica. But the proffered reason is disputed by considerations to which I have alluded, and lastly by the statement in this very patent that the bay divides Jamaica from Rockaway Neck, But the appellant finds the grant to low water in the separate specification of 11 Beach or Beaches * * * and Appurtennces whatsoever to the said Parcell Tract * * * in any wise belonging Adjoyning or Appurtaineing.” But what makes doubt is that this language is applied to the south side of the land as well as to the north side, and yet it was deemed necessary to express the intention to go to low-water mark on the south side. The word Beach ” in describing the thing granted means the tideway (Trustees of East Hampton v. Kirk, 68 N. Y. 459; Littlefield v. Littlefield, 28 Me. 180; Cutts v. Hussey, 15 id. 237), although it may be used for purposes of boundary to describe the shore above high-water mark. (Trustees of East Hampton v. Kirk, supra, 463 ; Wakeman v. Glover, 75 Conn. 23.) In Trustees, etc., v. Smith (118 N. Y. 634) the patent in question granted “ necks and tracts of land * * * together with the waters, rivers, lakes, creeks, harbors, bays,” etc., and it was considered that the bay was granted by express terms with all the benefits and privileges appertaining thereto. As the beach and beaches are expressly granted, and as they usually carry the grant to low water, I am inclined to the conclusion that the present case is not . exceptional. In any case, it has been concluded that the Indians did not convey to the ocean, nor did they convey any part of the bay, that the east and west lines of Jamaica are stopped at two very definite points, and that “ South with the sea ” meant the north shore of the bay, and that the disavowal of Jamaica to the neck was not a release but a disclaimer, and that the agreement with Hemp-stead, confirmed by the Dongan patent of 1686, settled the east line and its southern termination beyond all possible contention, and it follows that the land under Jamaica bay remained in the sovereign and that the State succeeding to the title conveyed the land in question to the plaintiff..

The judgment should be reversed and a new trial granted, costs to abide the final award of costs.

Hirschberg, P. J., Burr, Rich and Carr, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.  