Year: 1859

Before Hon. Judge Potter.


Sept 3o-The case was resumed this day at 10 An.


Mr. Moses Ely on behalf of the defendants moved for
a dismissal Of the the following grounds-Frst,
because the plaintiffs Taylor and Brennan had failed TO
prove valid the State; and secondly because
the Land Commissioners had competent authority TO
grant lease He contended that even If the State proved
its title to the land in dispute, it could not bring
ton cectment against the present occupants In the
eye Of the law the water still flowed where it had been


filled in and the waves still dashed against the bukhead
West street. The State never had authorized the filling
in had it accepted it. The counsel then quoted from
the statutes proof his POSITIONS and asserted that the
right of the State TO the substraum Of navgabc river
below water mark and four hundred feet beyond did not
come within the meaning OF the statute which referred 70
Commissioners for terms not exceeding one year, The
law required moreover hatsuch lands might be leased
should have improvements them. The shanties erect
ed the land in question certainly could not be consi
dcred improvements they rude constructions that


Mr soughton replied that the argument Of the gentle
who had preceded him resolved itself to this that
because the State had neither authorized nor accepted
the erected in the water therefore could not bring
an action for ejectmen That about the same as 10
assert that he he counseD had piece OF property of
his own, and on awakng some morning he should find
factory erected thereon by person. he could not
ect the latter, though he was in fact but mere tres
passeY The Courts he said, had already decided the
question in the case of the Health Commissioners against
Moran which was a case something like the present.


The Court decided deny the motion to DISMISS the





matter and that he preferred to hear the whole case be
fore acting so important motion.


Mr. Richard Busteed the Corporation Counsel then pro-
ceeded to omen the case for the defendants The CITY,
said had twofod title TO the lands in dspute-the title
by prescription, which could not be denied and the title
by grant which, he contended, was proved by the Dom
gan charter Of 1885, the Montgomere charter Of $780, and
subsequent Of the Legislature of the State of New
York The Dongan charter, he asserted, the only
public record which referring the grant to the city
of feet beyond low water mark used the definite article
That in ali other documents relative TO the matter the de-
fhax
omission which he said, clearly proved that in
tended that the low water mark should be variable
cording affected by natural artificial causes If then,
the city authorized to build bulkhead at West street.
consequence thereof the water outside became filed
up by natural accretion as TO make low water mark
outside the point might have been at former periods,
the city still had the right to all lands 400 feet outside this
new water mark


The Court suggested that if similar charter had been
granted to Jersey City, the Hudson might be choked up
entirely.


have charter like New York. Oaughter.)


The Court stated that charters like all other legal docu
ments should be reasonably construed II the principle
city of New York might be carried clear into Jersey


Mr.. Busteed-That would be calamity, admit, your
Honor, greatly TO be dcplored. daughter
The Court intmaed that the counsel need argue
such strained and absurd construction Of the charter


Mr. Busteed therefore took exception and proceeded
cupying over an hour in his address.


John J. Serril City Surveyor, deposed-I have been
familiar with the premises in dispute since lS49 present
high and low water mark are dencal there is no map
chart or survey, which l know Of that shows
where the low water mark was at the


time the Montgomcre charter made if the low water
mark designated in the grant to Trinity church be
rect the four hundred feet granted to the city from low
mark would terminate forty eight feet Of the
west side Of second West street; taking the low
mark as saw in lS47 four hundred feet out from West
street. would reach to about forty feet from the front
the bukhead


Mcssrs Brewer Wilson J. Hunt, Justus Earle and
Dr. Randolph, all very aged gentlemen acquainted some
OF them for fifty with the vicinity Of Washing
ton market next testified several important points
after which the closed both sides aud the
Court adjourned until this morning at ten O'Clock, when
counsel will sum up and Judge Potter win charge the
jury.