Oakes v. . Delancey , 133 N.Y. 227 ( 1892 )

The only question raised by this appeal is over the true construction of the deed given by the defendant. The premises were described as "Vergemere," and bounded on the north and east by the waters of Long Island sound, and the dispute is whether the description of the conveyance includes or excludes the strip of land on the water fronts between high and low water and which constitutes the shore. The description is thus phrased: "Beginning at a point in the center line of an avenue sixty feet wide, known as De Lancey avenue, which point bears south forty-two degrees and forty-seven minutes west, thirty feet from the point of intersection of the division line between the property hereby conveyed and the land conveyed by the late Peter John De Lancey of Geneva, New York, to James J. Burnett, with the northeasterly line of said De Lancey avenue, and thence running along said division line north forty-two degrees and forty-seven minutes east, about eight hundred and sixty-five feet to a point on the shore of Long Island sound; thence running along said shore and sound as the same bend and turn, easterly and then southerly to their intersection with the center line of De Lancey avenue aforesaid, and thence running along said center line of said De Lancey avenue forty-nine degrees and fifty-five minutes west, about twelve hundred and eighty-eight feet to the point or place of beginning, containing twenty-two acres and fifty-seven hundredths of an acre of land, be the same more or less."

It will be observed that the starting point of this description is fixed with accuracy and care, and the surveys show that the first course, if run in obedience to the distance given, will extend to low-water mark, and that the last course, to obey the same requirement of distance, must start at low-water mark on the easterly water front. The surveys also show that the strip between high and low water must be included in order to correspond with the quantity of land which the deed purports to convey. The courses and distances and the quantity of land carry the description to low-water mark, and can only be satisfied by including the area of the shore.

But the appellant, relying upon the rule that fixed monuments control, and distances and quantities must yield to their safer and superior authority, insists that the shore is such a monument, and by the shore is always meant the line of high water when the boundary is the sea. That is undoubtedly true, and would be decisive if the first course ran simply to the shore. But it does not. It goes, not to the shore, but "to a point on the shore." That point may be anywhere upon the strip lying between high and low water, and where it is must be determined, and can only be determined, by the sole direction furnished, which is the distance. That distance fixes the point at the outer or low-water line of the shore, and so, and only so, is the description satisfied. The first course ends at "a point on the shore" and about eight hundred and sixty-five feet from the fixed starting point. Having found this "point on the shore," we are required to go "along said shore and sound" easterly and then southerly. Starting thus on the line of low water, we must follow that line. The words are not only along the shore, but also along the sound, and a line starting at low water and then running away from it on a diagonal to the line of high water and thence easterly on that line is neither described nor intended. It would fail again when the return course to the starting point is reached. That calls for about twelve hundred and eighty-eight feet, and can only be satisfied by beginning the course at low-water mark. To these indications of the intent must be added the quantity of land stated to be conveyed, which requires the inclusion of the shore, and is seriously defective if that be excluded. The use of the words "more or less" in connection with the quantity, and the use of the word "about," as qualifying the distance, do not alter the conclusion to be drawn. They are words of safety and precaution, and intended to cover some slight or unimportant inaccuracy, and while enabling an adjustment to the imperative demands of fixed monuments, do not weaken or destroy the indications of distance and quantity when no other guides are furnished. (Belknap v.Sealey, 14 N.Y. 143.)

The appellant further insists that the title to the shore is presumably in the state. That, with us, is the common-law rule, but does not exclude the possibility of title in the grantor derived from the sovereign or obtained by prescription. There is no question of title in the case and we know nothing about it. Certainly we ought not to presume a want of title in the grantor in order to construe a description which implies such title.

There is nothing in the case of Storer v. Freeman (6 Mass, 435), upon which the appellant mainly relies, adverse to our conclusion. In that case the description in the first deed ran "to the shore," which was held to be the line of high water. In the second deed the course ended at a heap of stones "at the shore," and ran thence "by the shore." That heap of stones at "William Elwell's corner" was treated as a possible monument which, if found at the line of low water, would carry the description there, and thence "by the shore" would follow the line of low water. The point on the shore, or at the shore, fixed in that case at low water by a monument in the form of a heap of stones at a corner, is fixed here without a monument by the sole remaining guides, which are distance and quantity, at a point on the shore at low-water mark.

We think the judgment is right and should be affirmed, with costs.

All concur.

Judgment affirmed.