#### William J. Hammel et al., Respondents, *v.*Camp Ranger, Inc., Appellant.

Third Department,

March 9, 1949.

*25
      *Benjamin M. Goldstein,*attorney *(Bliss & Bouch*of counsel), for appellant.

*William G. Birmingham,*attorney *(Paul McDermott*of counsel), for respondents.

Brewster, J.

The judgment appealed from adjudicates upon the titles of the parties to a portion of a small inland pond in Sullivan County formerly known as Pleasant Pond (now called Silver Lake). The controversy stems from the description of the easterly boundary of a parcel of land first employed in a 1916 deed from common owner, Walker, to one of defendant’s predecessors in title, Norris,' the pertinent part of which is as follows: “ * * * thence along the north line of said 4 acre lot and along a stone wall 349 feet to Pleasant Pond low water mark, thence in a northerly direction along said Pleasant Pond shore 864 feet more or less to wire fence and stake; * * *. The said premises to run along the said Pleasant Pond and to run to the low water mark thereof.” Defendants own whatever title to the pond was thus created. If the grant extended only to low-water mark, then from thence to the center of the pond the title is in the plaintiffs, by a later deed from the common owner and mesne conveyances. The judgment delimits the easterly boundary of defendant’s ownership at the line of the pond’s low-water mark, and directs defendant’s removal of its structures from, and restrains its use of, any area of the pond adjacent thereto. The basis of this is the disclosure of the record title of the parties. Plaintiffs rested their case upon their paper title. The above-quoted words in defendant’s grant have been held, per se, to so restrict its easterly extent to low mark that it effected a reservation by the grantor of the portion of the pond between it and its thread. We cannot agree. The above-quoted description in defendant’s grant if on its face not sufficient to extend it to the center of the pond, is at least so ambiguous and lacking in an express reservation of the land under water as to have opened inquiry into the intention of the original grantor.

The rule that the terms of a grant are to be liberally construed in favor of the grantee has special emphasis as to a grant of land bordering upon a small inland body of water. It is uniformly held that in such instance there is a *■“*very strong presumption ” that the grantor intended to convey his ownership under water, at least to the center, and “ that nothing short of an express reservation will overcome its force.” (8 Am. Jur., Boundaries, § 11; and see, *White*v. *26
      *Knickerbocker Ice Co.,*254 N. Y. 152, 156; *Stewart*v. *Turney,*237 N. Y. 117, 121; *Fulton Light, Heat and Power Co.*v. *State of New York,*200 N. Y. 400, 417; *Gouverneur*v. *National Ice Co.,*134 N. Y. 355; *Seneca Nation of Indians*v. *Knight,*23 N. Y. 498, 500; *Luce*v. *Carley,*24 Wend. 451, 453.)

The vexed question arising from a choice of language in the description of such a grant received extended treatment in the above-cited cases and cases therein cited. Despite the many adjudications upon the subject the particular choice of language in the instant case seems novel as regards the case law in this State. Here the boundary is given as the pond at low-water mark. No other exclusion or reservation is clearly expressed. Thus the boundary touches water. It is not placed upon *“*dry land ” for it lies along and in contact with a body of water except when entirely covered by the water of the pond. It is ever marked by the presence of water for no space can ever intervene between the pond and the boundary. The contention that the course which is stated as *“*along said Pleasant Pond shore ”, fixes it at the mark made by low water can at most but add to the ambiguity for it is patent that, as used, *“*shore ” meant its waterside edge as marked from time to time by low water. Considering the stated boundary as synonymous with *“*margin ”, *“*edge ” or “ side ” of the pond does not per se amount to the requisite reservation. As far back as *Ex Parte Jennings*(6 Cow. 518) there was an issue as to whether a grant of land from the State which bounded it on the “ margin ” of a nonnavigable stream, Chittenango Creek, conveyed to the center thereof, and it was held that it did (p. 528), and this in spite of the rule that as regards the sovereign the grant is to be strictly construed against the grantee. *Confer*v. *Pirman*(247 App. Div. 825, affd. 273 N. Y. 587) was a case quite like the one on appeal. It was a controversy over the ownership of a portion of an Adirondack pond, about the size of the one in question. The parties owned children’s summer camps on each side. Confer sued to enjoin Pirman’s use of his side of the pond. The latter’s record title began with a deed from an owner of the entire pond and its upland on both sides, wherein the description was: “ * * * that part of said quarter [of Lot 60] that *lys*(sic) on the east side of what is known as the Hutchins Pond untill [it] strikes the outlet of said pond ”. In later conveyances the description was: *“ *** * that part of said quarter that lies on the east side of * * * Hutch (sic) Pond and runs along thence southerly on the East Side of said Pond,” etc. Thereafter and *27down to and including the deed to Firman the description was: “ That part of said quarter that lies on the east side * * * [of the] * * * Fond [thence] running southerly along the *water’s edge*to the outlet ” etc. It was finally determined, in effect, that Firman’s title extended to the center of the pond. Confer had acquired all title to the pond except what Firman owned, and his suit for injunctive relief to exclude Firman’s use of the half of the pond on his side was dismissed.

The stark description of the boundary as the low-water line can be variously interpreted. It can reasonably imply the grantor’s assurance that the grant should at all times be bounded by the waters of the pond in order that the enjoyment of access thereto in connection with the use of the granted upland be uninterrupted. That interpretation is at least as reasonable as to construe the choice of the fluctuating line as meaning only where it might chance to be, there and no farther out. It would be rather incongruous to intend a shifting meander as a fixed and definite boundary. Such could well be productive of much uncertainty. Confusion, too, might be added in the instant case since there is evidence that the pond is regulated artificially, and hence doubt can arise over whether the pond’s natural or artificial low-water mark controls. Moreover, if the grantor intended a restriction to the upland why did he extend the grant into the pond or pond bed and on out as far as its waters might recede? It is difficult to conceive how the inter-vale would be of much if any value to the grantee, whereas if the intention was to reserve the land under water and thus continue in ownership and control of the pond, the strip between the high and the shifting low-water mark would have been of considerable, probably great, value to the grantor.

It is clear that the paper titles, if on their face they'failed to defeat plaintiffs’ contentions under the “ rule of property ” pointed out in *Stewart*v. *Turney*(237 N. Y. 117, 121, supra) they at least opened inquiry to the intention of the original grantor, and therein plaintiffs bore a burden of proof to square that with their interpretation of the water mark line of boundary. Not only did they fail in this but defendant’s proofs were ample to refute the plaintiffs’ claims and to establish its own which it pleaded affirmatively. The evidence is convincing that the very objective of the Walker grant was to afford the grantee access to and enjoyment of the advantages afforded by the pond. This was competent, and even the declarations of the grantor, although then deceased, would have been competent. (8 Am. *28Jur., Boundaries, § 96.) In addition there was evidence of the long, open, undisputed and continuous possession and use made of the lake by Norris and his assigns from the time of the Walker grant to the present time — a period of over thirty years, and for over twenty, by the defendant in hostility to the very claim which plaintiffs now assert. “ In questions of boundary, long and notorious possession authorizes the inference of any fact which can rationally be inferred to make such possession consistent with right.” (8 Am. Jur., Boundaries, § 90.)

The judgment under appeal should be reversed and the complaint dismissed; findings of fact numbered “ 7 ” and “ 8 ” and conclusions of law numbered “ 1 ” to “ 7 ”, inclusive, should be reversed and new findings made to the effect that in the 1916 deed from Walker to Norris it was not the intention of the grantor to locate and limit the easterly boundary of the eight-acre parcel at the low-water mark of Pleasant Pond, but that such grant included the land adjacent thereto and extending to the center of the pond, title to which is now owned by the defendant, and that defendant is entitled to judgment accordingly.

Foster, P. J.,

(dissenting). Defendant has appealed from a judgment which decided that it has no title or interest in a small pond or lake, situated in the town of Bethel, Sullivan County, and known as Silver Lake, by virtue of a deed of an adjacent parcel containing eight acres of land.

The lake involved was formerly known as Pleasant Pond. It is a small pear-shaped body of water, fed by underground springs, and of natural formation to a great extent, although there is a small dain at the outlet which backs up the water at times. The parties to the action own and maintain summer camps for children on the adjacent uplands. If the judgment is correct the individual plaintiffs own most of the lake. Defendant owns a four-acre parcel which juts partly out into the lake and is not involved in this controversy. But in addition to this parcel defendant claims to own to the center of the lake under its deed of an eight-acre parcel, and it is this claim which is in issue.

At one time title to all the premises now owned by the defendant and the individual plaintiffs was in a common owner. He conveyed first to a predecessor in title of the defendant by a conveyance which embraced the eight-acre parcel and the four-acre parcel. This was in 1916. The eight-acre parcel was described as follows: ‘ ‘ Also all that other tract, piece or parcel of land adjoining the last above described and being described *29as follows: Beginning at the northwest corner of the 4 acre lot last above described and thence along the north line of said 4 acre lot and *along a stone wall 349 feet to Pleasant Pond low water mark, thence in a northerly direction along said Pleasant Pond shore 864 feet*more or less to a wire fence and stake; thence westerly along said wire fence 349 feet more or less to the east line of the McKee farm; thence south 900 feet more or less to and along the east line of the McKee lot line to the place of beginning containing 8 acres of land more or less. *The said premises to run along the said Pleasant Pond and to run to the low water mark*thereof.” (Emphasis supplied.)

The foregoing description was carried in a series of mesne conveyances until title was acquired by the defendant in 1927.

In 1918, the former common owner conveyed the remainder of his holdings, embracing the greater part of the lake, to a predecessor in title of the individual plaintiffs, excepting therefrom the eight-acre parcel and also the four-acre parcel. Subsequently and through a series of mesne conveyances the individual plaintiffs acquired title to all but the eight-acre and the four-acre parcels.

At the time of the trial the common owner was dead. Defendant sought to show conversations between him and his first grantee, and also between them and the scrivener, tending to prove the common owner’s intent to convey title to the center of the lake in connection with the eight-acre parcel. Defendant also sought to show an alleged admission to that effect made by the common owner to a stranger. All of this testimony was excluded, and I think properly so. Evidence of this character would be generally inadmissible as against the rule that all prior conversations are considered to be merged in the deed *(Uihlein*v. *Matthews,*172 N. Y. 154). But there is an additional reason for exclusion here. The former common owner is dead. The parties to this controversy are remote grantees and the recording act has intervened. The plaintiffs may well urge that it is bound by the record only, and entitled to rely upon it *(Tuscarora Club*v. *Brown,*215 N. Y. 543). It is too late in the day to either add or subtract from the land conveyed by evidence of what was said prior to the execution of the first deed by the common owner. It is true that property may at times be identified by parol testimony, but that rule is only applied when the property cannot be identified from the instrument itself *(Cordua*v. *Guggenheim,*274 N. Y. 51). There is no difficulty here in identifying the property. It has definite measurements and is bounded by stated monuments. The question in the case *30arises not from lack of identification, but rather as to the legal implication arising from the use of certain terms for the designation of one boundary. For the solution of that question I think we are required to look only to the record and the law. Nothing passes by deed except what is described, whatever the intention of remote parties may have been *(Clark*v. *Baird,*9 N. Y. 183; *Terry*v. *Chandler,*16 N. Y. 354; *Armstrong*v. *Du Bois,*90 N. Y. 95; *Coleman*v. *Manhattan Beach Improvement Co.,*94 N. Y. 229; *Thayer*v. *Finton,*108 N. Y. 394; *Muldoon*v. *Deline,*135 N. Y. 150).

A conveyance of land bounded by a small nonnavigable lake or pond ordinarily carries title to the center, or the thread of the current. This was the rule at common law *(Hardin*v. *Jordan,*140 U. S. 371). It is the law of this State. The rule, however, is based merely on a presumption, and if an express restrictive boundary is named the presumption does not apply. Thus a description carrying the boundary “ by the shore ” is such an express restriction; and like-wise a description carrying the land ‘ to the bank ”. On the other hand a description carrying the boundary “ along said pond ” contains no restriction and conveys title to the center of the pond *(White*v. *Knickerbocker Ice Co.,*254 N. Y. 152; *Gouveneur*v. *National City Ice Co.,*134 N. Y. 355; *Child*v. *Starr,*4 Hill 369). It has also been held in this State that where land was described as extending to the bank of a creek the grantee did not take title to the center of the creek, nor was he limited to the bank at high water mark. Such a description included land to the margin of the stream at low-water mark *(Halsey*v. *McCormick,*13 N. Y. 296). It has been held in a sister State that a description *“*to low-water mark * * *; thence northerly along the low-water mark ’ ’ of a pond or river, fixes that mark as the boundary and does not convey any land beyond the low-water mark *(Allen*v. *Weber,*80 Wis. 531).

To apply the foregoing principles to the description of the eight-acre parcel the following language may be recalled: “ * * * along a stone wall 349 feet to Pleasant Pond low water mark, thence in a northerly direction along said Pleasant Pond shore 864 feet more or less to a wire fence and stake; * * *"

Thus far the description clearly expresses a marginal restriction, I think. It carries the line to low-water mark and thence along the Pleasant Pond *“*shore ”. It is argued that the term “ low water mark ” indicated an intent to convey to the center *31of the lake, but with this argument I do not agree. "Where the boundary is limited to the bank or shore it follows equally that it extends to low-water mark, because obviously what is meant by the bank or shore is the line where the land touches the water. Obviously the shore follows the edge of the water whether the water is high or low.

Defendant relies quite largely upon the last sentence contained in the description which reads: *“*The said premises to run along the said Pleasant Pond and to run to the low water mark thereof.” The court below held that the course along Pleasant Pond was qualified by the latter clause *"*to run to the low water mark thereof ”. Ih view of the language used in the main body of the description this seems to me to be a correct interpretation. Thus we have, considering the description as a whole, two restrictive terms used, “ shore ” and *“*low water mark ”, which constitute a marginal limitation. Under the cases cited these restrictive terms should not be ignored, and in my opinion they overcome the presumption which ordinarily flows from a conveyance of land along fresh water.

In addition to this claim of title by virtue of the record description defendant claims a prescriptive right to use the waters of the lake to the center line thereof. The court below found the evidence insufficient to sustain such a claim. The defendant had the burden on this issue but it failed to show any exclusive use of any part of the lake. At most it was shown that the defendant used the waters in common with several other owners and strangers. Exclusive use is one of the cardinal elements of a prescriptive right, and common use or acquiescence will not suffice to establish such a right *(Commonwealth Water Co.*v. *Brunner,*175 App. Div. 153; *Mix*v. *Tice,*164 Misc. 261). The trial court found that the use of the entire lake was a common one, and there is evidence to sustain this finding, in fact there is little, if any, evidence to the contrary.' Such a common use would include I think any inexpensive and temporary structures ■ such as docks or piers set up for convenience in launching or landing boats and canoes. Such structures and the use thereof would not constitute adverse user in view of the general and common use of the' lake *(Noble*v. *Echo Lake Tavern, Inc.,*142 Misc. 427).

The judgment should be affirmed, with costs.

Heffernan and Santry, JJ., concur with Brewster, J.; Foster, P. J., dissents in an opinion in which Bergan, J., concurs.

*32Judgment reversed on the law and facts, and complaint dismissed, with costs to appellant; findings of fact numbered *“ 7*” and “ 8 ” and conclusions of law numbered *“*1 ” to “ 7 ”, inclusive, are reversed and new findings made to the effect that in the 1916 deed from Walker to Norris it was not the intention of the grantor to locate and limit the easterly boundary of the eight-acre parcel at the low-water mark of Pleasant Pond, but that such grant included the land adjacent thereto and extending to the center of the pond, title to which is now owned by the defendant, and that defendant is entitled to judgment accordingly.

Settle order on notice before any Justice of this court.