
    In the Matter of the Application of Isaac P. Smith and Emma L. Moller, as Executors, etc., of Joseph H. Godwin, Deceased, Respondents, for Payment of Awards for Parcels Shown as Numbers 3 and 3A on the Damage Map of the Commissioners of Estimate and Assessment in the “ Matter of Acquiring Title, etc., for the Opening of Broadway from Its Present Southerly Terminus in the Twenty-fourth Ward to the Southerly Line of Van Cortlandt Park, in the Twenty-fourth Ward, Borough of The Bronx, City of New York.” The City of New York, Appellant.
    First Department,
    April 8, 1910.
    Eminent domain.— street opening, city of Hew York — award to unknown ■ owners — facts not showing accretion — accretion defined.
    Street opening proceeding in which a claim was made to an award to unknown owners upon the theory that while the claimant originally owned but a small portion of the lands condemned, the land covered by his deed had increased by accretion from the water front. Evidence examined, and held, insufficient to establish the claim.
    Accretion is the process of gradual and imperceptible increase of land caused by the deposit of earth, sand and sediment thereon by contiguous waters; an imperceptible addition to riparian landlnade by water to which the land" is contiguous. In order to be an accretion, the formation must be imperceptible.
    Appeal by the City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1909, Confirming the report of a referee and directing the comptroller of the city of New York to,pay certain awards.
    
      Clarence L. Barber, for the appellant.
    
      Ernest Hall, for the respondents.
   Dowling, J.:

In the proceeding for the acquiring of title to Broadway from its then southerly terminus to the southerly line of Van Cortlandt Park, in the borough of the Bronx, the commissioners made awards for the parcels designated on the damage map as Nos. 3 and 3A, amounting to $6,829.73, to unknown owners. Title vested in the city of Mew York under these proceedings on May 27, 1898, and the report of the commissioners was duly confirmed, February 5, 1903.

Isaac P. Smith and Emma L. Moller, as executor and executrix of the last will and testament of Joseph H. Godwin, deceased, claimed to be the owners of shell awards by virtue of deeds (1) from Augustus Van Courtland and others .to Joseph H. Godwin, dated August 27, 1888 ; (2) from Augustus Van Courtland and another to the same, dated August 27,1888 ; (3) from Caroline M. Foster and others to George H. Peck and Joseph H. Godwin, dated July 19, 1858; (4) from George H. Peck and another to Joseph H. Godwin, dated June 15, 1862 ; (5) from Francis Perot and others to the samé, dated February 27, 1869. Conceding that but a portion of the land embraced in damage parcels 3 and 3A was included within the description of the property conveyed by these deeds, the claimants sought to establish title to most of the remainder by accretion, averring that such portion had been converted from land under water into nplandjjy the gradual accumulation of deposits of silt. The city of Mew York claimed to be the owner of such awards by virtue of two water grants from the Commissioners of the Land Office to the mayor, aldermen and commonalty of the city of Mew York, dated respectively April 5, 1888, and June 2,1904. A reference was ordered herein, and from the report of the referee, confirmed by the court at Special Term, the present appeal is .taken. It was found by such report that the total area of. the two parcels 3 and 3A was 6,684.19 square feet, and of this it was determined that on May 27, 1898 (when title vested), Joseph H. Godwin had acquired title, by deed and by accretion, to 5,740.43 square feet, and the city of Mew York to the remainder, 943.76 square feet, thus entitling the former’s estate to $5,865.42 as its proportionate share of the award, and the latter to $964.31.. The referee Wrote no opinion and it is, therefore, impossible to tell on what theory he found that the claimants!1 contention was sustained, but it is obvious that there is no competent evidence, upon which to base such a,fihding. He does not separately find how much of the land was gained by accretion and how much passed by deed. The only land which upon the testimony belonged to the claimants under the various deeds was an area of 402 square feet. The balance of the tract was land under water. This was not owned and could not have been conveyed by any of Godwin’s grantors. It- was incumbent upon claimants.to show that the upland had been added. to by accretion before their title could be extended to cover other laud. The most that they successfully did in this direction was to offer proof that an addition' had been made to the upland by the deposit of the materials and the consequent filling in of parts of the land under water when Broadway at this point was opened and constructed. In fact' their only witness testified that “ the building of Broadway is the only contributing cause as far as I can see to the filling up of this arm ” in the Harlem river. "While he subsequently sought to explain that the raising of the land above the water -level was due to the gradual deposit of silt, owing to the current of the river ceasing to circulate in the arm because of the extension of Broadway, lie failed absolutely to do more than give his speculation or surmise, based upon no definite facts or personal observations. It is apparent that there has been no proof of accretion here.' Accretion is the process of gradual and imperceptible increase of land, caused by the deposit of earth, sand or sediment thereon by contiguous.waters (1 Am. & Eng. Ency. of Law [2d.ed.], 467); an imperceptible addition to riparian land made by water to which the land is contiguous. (29 Cyc. 348.)

“In order to be accretion, the formation must be imperceptibly made,— that is, so gradual that no one can judge how much is added from time to time. The word1 imperceptible ’ means that the addition is such that its progress is not perceptible, although the fact of the addition may be perceptible after a long lapse of time. The test as to what is gradual and imperceptible is that, although the witnesses may see from time to time that progress has been'made, they could not perceive it while the process was going on.” (1 Farriham Waters & Water Bights, 321.)

It has been held that where by reason of the building of dams, their gates and sill, the placing of stones in the sluiceway and other obstructions a channel became filled up with múd, so that a. bár-was formed, the sole cause of the accumulation of sediment being the erection of these artificial structures whereby the natural flow of the wat.er was cut off, no title by accretion could arise. (Sewall and Day Cordage Co. v. Boston Water Power Co., 147 Mass. 61.)

The proof establishing claimants’ title by deed to only 402 square feet of the damage parcels, and there being no proof of any accretion, the findings in their favor as to their title to 5,740.43 square feet cannot be sustained. As to the city of New York, it coticededly had title to 943.76 square feet. Had it been able to establish that the remaining part of the damage parcels, 3 and 3A was not only-land under water at the time of the land grant from the State in 1888, hut was land under water between the high-water line and the exterior line defined therein, its right to the entire award would then have been established. But the testimony on. that' phase of the, case is, in its present condition, too vague and indefinite to warrant judgment absolute for the city.

■ The order appealed from must, therefore, be reversed, with costs to the appellant to abide the event, the motion to confirm the referee’s report denied, with ten dollars costs, and the entire matter sent to a new referee to take the proofs and report thereon.

Ing-baham, P. J., McLaughlin, Claeke and Scott, JJ., concurred.

Order reversed, with costs to appellant to abide event, motion to confirm referee’s report denied, with ten dollars costs, and matter sent to new referee to take proof and report.' Settle order on notice.  