I do not think the plaintiffs have sustained the burden of proof resting upon them.
They were obliged to show by a preponderance of evidence that the original title of the town of Hempstead to the premises in question was vested in them. There is much in this evidence concerning which speculations may be indulged, and upon which theories more or less persuasive could be founded, but there is no such clearness of proof as to establish a title to the property even under the lax forms of conveyance common in the town of Hempstead in the seventeenth century. It is clearly established by the defendant that it has for one hundred years and more exercised acts of dominion over the marshes, beaches and meadows comprising the common property of the town lying between the ocean and the premises of the upland proprietors. These acts, in so far as they affect the property in question, are hostile to and inconsistent with the plaintiffs' claim. *Page 308
The trial court found that neither the plaintiffs nor their grantors were ever in possession of the premises except that about 1803 one Stephen Hicks, an ancestor of some of the plaintiffs' grantors, caused the premises to be surveyed, and about 1875 some of the descendants of said Stephen Hicks laid claim to the same and attempted to partition them among themselves, and under this partition suit a sale was made to plaintiffs' ancestors in the year 1878.
The General Term, in reversing the judgment of the Special Term in favor of defendant, was divided, and the learned judge who wrote the prevailing opinion states that he reached his conclusion with "great hesitation."
The judgment of the General Term should be reversed and the judgment of the Special Term affirmed, with costs to the defendant in all the courts.
GRAY, J., reads for affirmance; PARKER, Ch. J., O'BRIEN, HAIGHT and VANN, JJ., concur; BARTLETT, J., reads for reversal, and MARTIN, J., concurs.
Judgment affirmed, and judgment absolute ordered for the plaintiffs on the stipulation, but, under the circumstances, without costs.