Vanderveer Crossings v. Rapalje

Gaynor, J

(concurring):

The title deeds of the parties show that the land of the plaintiff’s predecessors ran to Fresh Kill on the East, and that the lands of the defendants ran to the said kill on the West, the said kill being thus the boundary line between them. The said kill is a tidewater creek running into Jamaica Bay. About 200 years ago the plaintiff’s remote predecessor in title put a dam across the said kill with *207automatic gates in it, so that when the tide went up the kill and overflowed its banks on both sides, and turned to go 'out, the said gates closed, and kept the water from running out. In that way a permanent pond was formed, overflowing the said kill on both sides.2 Its waters were used to run a mill of the plaintiff’s predecessors in title, which was located near the dam. In late years the mill went out of use, the dam fell down and the pond disappeared.

Such overflow of the land of the defendants’ predecessors by the plaintiff’s predecessors does not show an adverse possession thereof under claim of title in the latter, which of course would have long since ripened into title, but only an easement, a claim of user, which may have ripened into a right by prescription, but not into title to the land, which is a very different thing. The right acquired by prescription by .a user is measured by the user itself (Hammond v. Zehner, 21 N. Y. 118; Washb. on Real Prop. bk. 2, ch. 1, § 3,-sub. 19). The user being abandoned, and the title being in the defendants, the plaintiff has no case.

Judgment reversed and new trial granted, costs to abide the final award of costs.