
    The E. G. Blakslee Mfg. Co., Resp’t, v. The E. G. Blakslee’s Sons’ Iron Works, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    1. Ejectment—Land Grants.
    A grant from the state of lands under water will support an action of ejectment for such lands. 'Ihc grant is presumptively regular and creates a presumption that the patentee was the owner of the upland.
    3. Same—Deed by riparian owner.
    A mere riparian owner, as such, has no estate in the lands under water, but simply a right to apply to the state for and obtain a grant as owner of the upland, and when he sells the upland the right ceases, notwithstanding an attempted reservation thereof in his deed.
    Appeal from judgment in favor of plaintiff.
    
      Francis Larkin, for app’lt; Taylor & Parker (Alfred Taylor, of counsel), for resp’t.
   Pratt, J.

This is an action of ejectment for land at Sing Sing under a grant from the state to plaintiff March 18, 1889. The locus in quo is land under water. Defendant is in possession of part of the premises covered by this grant. Ejectment is, nevertheless, the proper remedy, and, generally speaking, a grant from the state will support the action. The grant is presumptively regular and creates a presumption that the patentee was the owner of the adjacent upland.

Defendant alleges that this grant to plaintiff is void, on the ground that it was not the owner of the adjacent upland when it was made.

Reuben Quimby was common source of title of both parties, so far as the adjacent upland is concerned. Plaintiff’s title to this upland is from Quimby to Gregory & Mead, March 15, 1853; to McCord, December 2, 1854; to Jones, February 27, 1856; to Jones, through a referee, February 6, 1860; to Sawyer, September 14, 1885; to Bunting, September 26, 1885; to plaintiff, February 6, 1886. Defendant’s title is by mortgage to Curtis, September, 1854; to David Quimby, through foreclosure, May 1, 1863 ; to Larkin, July 1, 1863; to Larkin, November 1,1873; to Blakslee, September 14, 1883, and thence to defendant.

It thus appears that Quimby’s deed to Gregory & Mead (May 15, 1853,) antedates this mortgage to Curtis, September, 1854. It is claimed, however, that while Quimby sold the upland adjacent to the locus in'quo to Gregory & Mead, he reserved all water rights, etc., in front of that land, and that the rights thus reserved passed to David Quimby, and so on to defendant, under the mortgage and foreclosure.

The difficulty is that the Gregory & Mead grant made them riparian owners. It carried all that Quimby owned. He had then no grant of land under water. He owned nothing in the water of the river. He was a mere riparian owner, and as such had no estate whatever in. the land under the water. He had simply a right to apply to the state for and to obtain a grant as the owner of the upland. But when he sold the upland that right ceased. Gregory & Mead then became the owners of the upland, and as such they and their grantees were entitled to apply for the grant of land under water.

We fail to see how the state could grant that land under water to anybody except the grantees of Gregory & Mead. To say that the state could not grant it to them would be to say that it could never be granted, by the state at all, and that simply because Quimby chose to write some words in his deed indicating that he claimed rights in the land under water, which he never owned at all.

It seems to have been claimed that the locus in quo was covered by an ancient grant from the state to Hunter, in 1787, and hence that Quimby, a grantee thereunder, did own the land under water which he reserved from his conveyance to Gregory & Mead. But that was a question of fact on the evidence, and the finding is against defendant on this point. We do not find any specific request upon this point, and in the absence thereof we cannot say that any error of law was committed in this respect. Indeed, we think the evidence sustains the findings.

We have examined the other questions suggested on appellant’s, points, and fail to find error.

The judgment should therefore, be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.  