
    Village of Monroe, Respondent, v. Robert Benjamin, Appellant. Village of Monroe, Respondent, v. Henrietta Shearin et al., Appellants.
    (Argued May 11, 1932;
    decided June 2, 1932.)
    
      
      Philip A. Rorty and Thomas Gagan for appellants.
    No absolute title in fee to the lands overflowed could be acquired by the building of the dam or by either of the subsequent raises. (Matter of Brookfield, 176 N. Y. 138; Case v. Haight, 3 Wend. 632; Howard v. Wadsworth, 3 Greene, 471; Bryan v. Idaho Q. M. Co., 73 Cal. 249; Brigham v. Ross, 55 Conn. 373; Mack v. Bensley, 63 Wis. 80; Emery v. Three Rivers, 78 Mich. 438; Barber v. 
      Nye, 65 N. Y. 211; Erie R. R. Co. v. Steward, 170 N. Y. 172; Belings, S. & M. Co. v. Hanger, 160 Vt. 160; Goodrich v. Lingley, 1 Gray, 615; Jennison v. Walker, 11 Gray, 423; Bradley v. Warner, 21 R. I. 36; Hammond v. Zehner, 21 N. Y. 118; Hall v. Augsburg, 46 N. Y. 622; Ely v. State of New York, 199 N. Y. 213; Hazelton v. Webster, 20 App. Div. 177.)
    
      John Bright for respondent.
    The exception in the deed of 1803 was of a fee and was not confined to the erection of one dam. In that construction the defendants and their predecessors in title have acquiesced for over 100 years. (French v. Carhart, 1 N. Y. 96; Trustees of Brookhaven v. Strong, 60 N. Y. 56; Read v. Erie, 97 N. Y. 341; McRoberts v. Bergman, 132 N. Y. 73; Carthage T. P. Mills v. Village of Carthage, 200 N. Y. 5; White v. Knickerbocker Ice Co., 254 N. Y. 152; Kingsland v. Mayor, 45 Hun, 198; 110 N. Y. 569.)
   Per Curiam.

Our decision must not be taken as an approval of finding 21 of the trial justice, that Peter Townsend and his successors have the right to flow back and drown the land by the waters of Mombasha lake by reason of a succession of raises in the height of the dam. We leave this question open.

The judgment in each action should be affirmed, with costs.

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

Judgments affirmed.  