(25 App. Div. 179.)

#### DOSORIS POND CO. v. CAMPBELL et al.

(Supreme Court, Appellate Division, Second Department.

January Term, 1898.)

1. Recitals op Deeds—Presumptions.

Where one has a substantial chain of title from the crown, with only a few of the ancient links missing, which are all recited in subsequent conveyances, taken in connection with possession and claim of ownership, a conclusive presumption of the truth of the recitals is created.

2. Adverse Possession.

Evidence that land had been flooded by a dam continuously by various owners for over 100 years is sufficient possession to give one claiming ownership the benefit of every legitimate presumption to supply defects in the title.

3. Restraining Trespass—Sufficiency of Title.

In an action to enjoin continuing trespasses, if plaintiff’s title is better than defendant’s in respect to his right of possession, he must prevail.

Appeal from special term, Queens county.

Action by the Dosoris Pond Company against Edward J. Campbell and others to enjoin defendants from taking fish from plaintiff’s mill pond, and from keeping or using any boat or implements for fishing on said premises, and from interfering or attempting to interfere with plaintiff’s rights in said pond, or from committing any waste on said premises. From a judgment for plaintiff, defendants appeal. Affirmed.

The following is" the opinion of the special term (SMITH, J.):

I think the evidence abundantly sustains the claim of plaintiff that the grant from the crown to Robert Williams, contained in the Nicoll patent of August 1, 1668, embraces the premises in question. It is equally clear that the words of the grant are sufficient to convey the lands under water within its limits. If there was no prior grant of the premises, and the plaintiff proved satisfactorily that it had succeeded to the title created by the original grant, it is entitled to the relief demanded in this action. The defendants attempted to prove a prior grant of the premises to one Henry Townsend for mill purposes, but that grant was of premises on Mill river; and it is shown that Mill river is several miles distant from the premises in question, and that there is a mill on that stream now known as “Townsend’s Mill.” The plaintiff has proved a substantial chain of title from the original grantee. There are a few of the ancient links missing, but they are all recited in subsequent conveyances; and these recitals in ancient conveyances, taken in connection with the possession and claim of ownership of the premises in harmony with them, must be deemed to create a conclusive presumption of the truth of the recitals. It is also undisputed that for about 100 years the premises have been flooded by a dam erected in the first instance for the purpose of running a tide mill, and since continuously maintained by the various owners. While I think it doubtful if this makes a technical adverse possession, still it is possession sufficient to give the plaintiff the benefit of any presumption which may be indulged in to supply defects. Trustees v. Strong, 60 N. X. 72. The defendants justify under claim of title in the town of Oyster Bay, derived from the Andros patent. The claim is not tenable, because that patent is antedated by the Nicoll patent to Williams, and it excepts from its operation all prior grants. The plaintiff must recover on the

*820strength of his own title, not upon the weakness of the defendants’; but he measures' his title with that of the defendants, and, if it is better in respect to his right of possession, he prevails because of its sufficient strength. McRoberts v. Bergman, 132 ,N. Y. 84, 30 N. E. 261. I think proof of plaintiff’s title' from the original source so thoroughly established by an unbroken chain of conveyances that it need not invoke the aid of this principle as a basis of recovery; but, invoking this principle, there seems no escape from the conclusion that plaintiff has the superior right of possession, and is therefore entitled to the relief demanded in the complaint. On account of the novelty and importance of the question involved, I think the defendants were justified in having an adjudication of the respective rights of the parties; hence no costs are awarded either party.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

George B. Stoddart, for appellants.

Wilmot T. Cox and Albert W. Seaman, for respondent.

PER CURIAM.

Judgment affirmed, with costs, on the opinion of the special term.