Halsey v. . McCormick , 18 N.Y. 147 ( 1858 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] It was settled by this court, when this cause was before it upon a former occasion, that the plaintiff's south line did not originally extend to the centre of the creek, but only to the line of low water on the north bank. Assuming this to be settled, the plaintiff does not claim that, as the creek originally ran, the land in dispute was embraced within the boundaries of his lot. But if I understand it, he claims that the land in dispute is alluvion, and he is entitled to it as a riparian owner. But to acquire title to land as alluvion, it is necessary that its increase should be imperceptible — that the amount added in each moment of time should not be perceived. When the change is so gradual as not to be perceived in any one moment of time, the proprietor, whose land on the bank of a river is thus increased, is entitled to the addition. (Ang. on Water-courses, § 53; 2Bl. Com., 262; 3 Kent, 519.)

It is enough that no such fact is found in this case, as that this piece of ground is alluvion — that it was formed by imperceptible accretion. The evidence shows that it was not thus formed. McCormick deepened the bed of the stream on the south side, and placed stones along the centre so as to confine the water in the channel thus deepened, and by this means the land in question was left bare. He may have been guilty, by these acts, of a violation of the riparian rights of the plaintiff or his grantors, but I know of no rule of law which would constitute an illegal act of the kind a transfer of the title.

As the case stands, it is not necessary to pass upon the question whether there is a distinction between the case of alluvion formed by natural or artificial means. I find no such distinction in the books. If, by some artificial structure or impediment in the stream, the current should be made to impinge more strongly against one bank, causing it imperceptibly to wear away, and causing a corresponding accretion on the opposite bank, I am not prepared to say that the riparian owner would not be entitled to the alluvion thus formed, especially as against the party who caused it.

If the accretion was formed under all the other circumstances necessary to constitute it alluvion, I can scarcely suppose that a person could successfully resist the otherwise valid claim of the riparian owner, by alleging his own wrong, by showing that the accretion would not have thus formed if he had not himself wrongfully placed impediments in the stream. But that question is not before us. It is enough that this case does not show that the land in question was alluvion.

The judgment, therefore, must be affirmed with costs.

COMSTOCK and SELDEN, Js. did not take part in the decision; all the other judges concurring,

Judgment affirmed.