#### Alfred Roe *et al.,*App’lts, *v.*Caroline A. Strong *et al.,*Resp’ts.1

*(Court of Appeals,*

*Filed, February 25,1890.)*

1. Boundaries—Land bounded by sea shore.

The bridge erected by Strong, the removal of which is the object of the-present action, extends several feet above high water mark of the harbor, in front of the Floyd homestead lot, and also across the land under water described in the Seaton deed. On a former appeal (12 2ST. T. State Rep., 56), it was held that the evidence then presented rendered it doubtful whether the title of Richard Floyd antedated the Nicoll Patent to the freeholders of Brookhaven, and evidence was introduced by defendant tending to show that the town reserved a street between the cliff and the shore for public use. On the retrial there was no evidence of such reservation. *Held,*that upon the evidence now appearing there was nothing to-overcome the presumption that the Floyd lot was bounded by the water, and that the bridge so far as it extended above high water mark was upon plaintiff’s land, and should be removed.

8. Same—Adverse possession.

While no grant in fact is shown to have been made by the town, at .at any time, of the land under water embraced in the Brewster deed, yet the cutting of thatch on the seashore and the leasing of the right to do so to others, being the only acts of ownership considering the nature and situation of the property that could be exercised, while not making out a technical adverse possession, might justify the presumption of a grant of the. soil.

*505Appeal from a judgment of supreme court, general term, second department, affirming a judgment rendered at special term in an action tried without a jury, dismissing plaintiff’s complaint.

The action was brought to procure the removal of a bridge which the plaintiff claimed was erected upon his property.

*John J.*Macklin, for app’lts; *A. A.*Spear, for resp’ts.

1

 Reversing 24 N. Y. State Rep., 709.

Andrews, J.

This case is here for the second time. On the former appeal we reversed the judgment in favor of the plaintiffs, rendered after a trial of the issues, for the reasons stated in the opinion then given. 107 N. Y., 350; 12 N. Y. State Rep., 56. The present appeal is from a judgment affirming a judgment entered upon a dismissal of the complaint at special term, at the conclusion of the plaintiffs’ evidence, no evidence having been given on the part of the defendants. The sole questions upon the present appeal are whether the case as made by the plaintiffs *prima facie*established or tended to establish that the Floyd homestead lot was bounded on the east by high-water mark of Setauket harbor, and, second, whether the evidence now presented on the part of the plaintiffs justifies a presumption of a grant by the town or freeholders of Brookhaven to Joseph Brewster or his ancestors of the soil under water in front of the Floyd premises described in Brewster’s deed to Andrew Seaton, dated June 21, 1768.

It is not questioned but that the plaintiffs have succeeded to whatever title was originally vested in Richard Floyd to the homestead lot, and to the title of Brewster to the land under water embraced in his deed to Seaton, or to whatever right he had in the *locus.*

It is also undisputed that the structure erected by Strong, the removal of which is the object of the present action, extends several feet above high-water mark of the harbor, in front of the Floyd homestead lot, and also across the land under water described in the Seaton deed. It is not now a question whether, assuming title in the plaintiffs to the *locus*upon which the bridge is built, the defendants have acquired, notwithstanding, a right to maintain the bridge.. Their title or right, if any, was not disclosed, and if the plaintiffs have title to the soil on which the bridge is built, presumptively the erection is an invasion of such title and a trespass.

In respect to the boundary of the Floyd homestead lot on the east or harbor side, it was held on the former appeal that the .evidence then presented rendered it doubtful whether the title of Richard Floyd, the owner of the homestead lot, antedated the Xicoll patent to the freeholders of Brookhaven, of 1666, and assuming that it did not, but was acquired subsequent to that patent, it was held that there was some evidence in the case, introduced by the defendants, tending to show that in the allotment of town lands under that patent, the cliff, and not high water mark, was the boundary of the allotted lands on the water side, the town reserving a strip between the cliff and the shore for *506public use. As the case now stands, there is no evidence of such reservation, and there is no ground for a presumption that the lots laid out upon the water were not bounded by high water mark, or that they extended only to the cliff. It was said in the opinion in the former case, speaking of the Floyd homestead lot: “ The fifty acres is adjacent to the harbor, and in the absence of evidence to the contrary it cannot be supposed that the person from whom Bichard Floyd derived title reserved a strip a few rods wide along thé1 shore, thereby cutting him off from access to the water over his own land.”

Upon the evidence now appearing there is nothing to overcome the presumption that the Floyd lot was bounded on the east by the water, and assuming that the water was the boundary, the bridge, so far as it extended above high water mark, was upon the land of the plaintiffs, and they were entitled, upon the evidence now appearing, to have it removed.

The other question in the case relating to the alleged title of the plaintiffs to the land under water embraced in the Seaton deed, depends upon the evidence given on the former trial, supplemented by additional and, as it seems to us, important proof. The town of Brookhaven under the colonial patents acquired a proprietary interest in the soil of the bays and harbors within its limits. 107 N. Y., 358; 12 N. Y. State Rep., 56, and cases cited. ETo grant in fact is shown to have been made by the town at any time of the land under water embraced in the Brewster deed of 1768. But the deed purported to convey to Seaton in fee, for the consideration of forty pounds, “a certain piece of salt thatch,” bounded on the east “ by a straight line from Col. Smith’s gate to Col. Floyd’s point.”

The plaintiffs deduce title under this deed by regular chain and show that they and their grantors, for a period running back as far as the memory of living witnesses, exercised acts of ownership by cutting the thatch, leasing the right to cut to others, and that in one instance a suit was brought against an alleged trespasser by the person claiming under the Seaton deed. Upon the former appeal it was thought that this evidence was insufficient to show title to the soil in the plaintiffs, but was consistent with the grant of • a privilege merely to Brewster and his grantees to take the thatch, and did not justify a presumption of a grant by the town of the soil. I wrote the opinion in that case, but feel compelled to say that, upon further consideration, I entertain much doubt as to the correctness of our former conclusion on the point. Whatever was done by Brewster and his successors in title, ought, in accordance with general principles, to be referred to the exercise of a right and not to usurpation, there being no proof that the acts were tortious, or that they were ever challenged by the town. The cutting of the thatch and the leasing of the right to do so to others were the only acts of ownership which, considering the nature and situation of the property, could be exercised, and, while not making out a technical adverse possession under the statute, may justify the presumption of a grant, and perhaps a grant of the soil, and not a right to take thatch merely. Lord Hale, in his *507treatise *De Jure*Maris, chap. 4, §§ 3, 5, 6, 7, after stating that the title to the shore between high and low-water mark, is presumptively in the king, but that it may be in the subject, and parcel of the manor adjacent, instances as evidence sufficient to warrant the presumption of title from the crown: “ Constant and usual fetching gravel, sea-weed and sea sand between high and low-water mark,and licensing others to do so; enclosing and embanking against the sea, and enjoyment of what is so had,” etc. See, also, *Calmady v.*Rowe, 6 Com. B., 861; Phillips’ Ev., Cowen & H. Notes, note 311, p. 4; Greenl. Ev., Bed. ed., §§ 46 and 48.

The plaintiffs on the last trial put in evidence a patent from Gov. Fletcher to Col. William Smith, chief justice of the province of New York, dated October 9, 1693, which recited the purchase by the grantee of large tracts of land on Long Island (Nassau), and among others of *“*all such thatch beds or creek thaches as lyes within the harbor (Setauket) in a direct lyne from ye marked tree by the gate to ye southernmost poynt of ye said Little Neck called Floyd’s Poynt, given by ye townesmen of Brookhaven to him, ye said Smith, as by their sd. deeds, relacon being thereunto had, may more fully appear,” and which patent confirmed and ratified Smith’s title.

The plaintiffs also produced in evidence the town records of Brookhaven, containing an entry showing that at a meeting of the trustees, freeholders and commonalty of the town on the 27th of November, 1693, the patent to Smith was read and approved; and a further entry, that on election day in May, 1694, Col. Smith caused the patent to be publicly read before the freeholders of the town, and that it was voted to approve the same.

These facts and admissions tend to show that the town had conveyed to Smith the title to the land under water in Setauket harbor, adjoining the premises described in the Brewster deed. Both Smith’s patent and Brewster’s deed make the boundary between the respective premises a line running from Smith’s gate to Floyd’s point. The same line is recognized in a deed from Selah Strong, the ancestor of the defendants, to Abraham Woodhull, dated April 4, 1785, as bounding the premises formerly belonging to Smith.

It now appears, therefore, that the town, as early as 1693, had conveyed most of the land under water in the harbor of Setauket to a private person. What remained was the small part included between the western boundary of the Smith patent and the shore at high water mark, and this was the part conveyed by Brewster to Seaton in 1768. It does not seem to be an unreasonable presumption, under the circumstances, that the title of Brewster also originated in a grant from the town.

TJpon the case, as now presented, we are of opinion that the plaintiffs made out a *prima facie*title to the *locus*upon which the bridge was erected, and that the court erred in dismissing the complaint.

The judgment should, therefore, be reversed, and a new trial granted.

All concur.