Recognizing the difficulties and uncertainties of locating the boundaries of grants over 200 years old, especially when they involve the title to land under water which has never been the subject of exclusive possession, I submit the reasons that lead me to prefer the solution that the land in question was not granted by the Lovelace and Dongan charters below referred to, but passed to the predecessor in title of the plaintiff by the grant of the State of New York.
By an instrument dated and recorded, on the 27th of May, 1643, William Kieft, Director-General of the United Netherlands for the New Netherlands, granted to Antony Jansen van Salee “ One hundred morgens [200 acres] of land lying on the Bay of North River on Long Island over against Conynen Island extending along the shore two hundred and fifty-three rods, North North west from the shore about North East by East Two hundred and thirty-six rods again along a hill one hundred and twenty-four rods about South South East, South west by west Twenty four rods, Southerly Twenty four rods, further to the shore South west by west one hundred and seventy rods with certain out points lying on the South side; amounting to Eighty seven morgens, forty nine and one half rods with yet another point extending South of the House surrounded on three sides by a valey (marsh) extending South west by west Seventy two rods Ninety rods South east by South being a parallelogram * * * with certain out points containing twelve morgens Five hundred and fifty and one half rods amounting in all to the aforesaid One hundred morgens.” Reserving a perpetual yearly rental of 100 Carolus guilders.
It is difficult to plat this patent by its courses and distances; but it is unquestioned that it contained a plot of ground of about eighty-seven morgens or one hundred and seventy-four acres lying along the shore over against Coney Island from about Bay Twentieth to Bay Thirty-fifth streets, as such streets are now; another plot to the south of twelve morgens or twenty-four acres and certain out points stretching to the south. The location of the grant with its out points is essential to locating the subsequent grant to the *198town of Gravesend, and determines the title of the party to the action. Two years after the patent was granted to Jansen, and oh the 19th of December, 1645, is Governor Kieft’s patent to the town of Gravesend. It is in the shape of. a grant to Lady Deborah Mo'ody and others or any they shall join in association with them of “ a Certaine quantitie or parcell of land, together with all ye havens, harbours, rivers, creekes, woodland, marshes, and all other appurtenances, thereunto belonging, lyeing and being uppon and about ye Weastermost parte of Longe Island, and beginning att yé mouth of a Creeke adjacent to Coneyne Island, and being bounded one ye Weastward parte theerof with ye land appertaining to Anthony Johnsonn and Robert Pennoyre and- soe to runn as farre as the westermost part of a Certaine pond in an ould Indian feild one the North side of ye plantation of ye sd. Robert Pennoyre;” the course is. then carried to the east and then to the south to the ocean, “ and being bounded one the south side with the maine Ocean.” The patent is not confined to a grant of land, as was the Jansen patent, but confers on the patentees the political power to erect a body politic which became the town of Gravesend. It will be; noted that this patent is not at any point bounded by the bay on the west. The only west boundary given is the “ land appertaining to Anthony Johnsonn and Robert Pennoyre,” who held a grant lying to the east of the eighty-seven morgen plot conveyed to Jansen. The description in the Gravesend patent begins “ att ye- inouth of a Creeke adjacent to Coneyne Island.” As appears by all the maps, there was then, as there is now, a creek adjacent to Coney Island, called the Coney Island creek, which separates Coney Island from, the mainland and which, straightened and deepened, becomes the Gravesend ship canal. Now, there stretched from the eighty-seven morgen grant to Jansen a neck of sandy land to the mouth of Coney Island creek. This land was included in the grant to Jansen. This fact is abundantly established by litigation between the town of Gravesend and Jansen and his successors in 1656, and judgments .thereon, and it is so found by the court. The history of the struggle between the town of Gravesend and Jansen over the neck of land, is interesting, but the result establishing the title in Jansen is alone important. If we begin with the mouth of Coney Island creek, the ‘Jansen neck of land is the westerly boundary of the Deborah Moody grant, .and the line reaches the old Indian pond, the location of which is well known; The peculiar result of this description is that it does not include any .of the westerly end of Coney Island, nor is there any boundary line from the ocean to the mouth of Coney Island creek.,
- , On the- 11th of June, 1667, the Jansen patent was confirmed to *199his grantee, Francis Browne, by Governor Richard NicoIIs, and on August 13, 1668, the Gravesend patent was conferred by Governor Nicolls.
On the 29th of June, 1670, a boundary agreement was executed between the town of Gravesend and Francis Browne which provided that Francis Browne should have “ all that Neck of land with ye Timber and hearbridge that lies from his house southward being bounded on the one side with ye baye to ye West: -and by a Certain Creeck to ye East,” etc., giving the inhabitants of Gravesend free egress and regress over the neck of the land and along the waterside.
Up to this time it is apparent that the town of Gravesend did not abut on the bay, but was separated therefrom by the neck óf land belonging to Jansen and his grantees. In fact the claim of the city rests on the Lovelace and Dongan patents which I am about to consider. ■
There appears" in the office of the Secretary of State, book 4 of Patents, page 66, the record of an instrument undated and unsigned, which purports to be a confirmation by Governor Lovelace of the Gravesend patent, together with a grant of “ all Couney Island.” The city, however, produced from the custody of the commissioner of records an unrecorded instrument which the court held to be the original Lovelace patent. It was dated July 1, 1670, within a, month after the boundary agreement between Francis Browne and the town of Gravesend. It confirms the Kieft patent of 1645 by the same description, grants all Coney Island and also contains the following words not in the recorded patent: “ including all the land within a lyne stretching from the wester most parte of the said Island unto the Southermost parte of Anthony Iansens old Bowerye, their Bast bounds being the Strome Kill which comes to the Marsh or fflye of Mathew Gerretstons land aforementioned, As also the meadowe ground and Upland not specified in their former Patient' concerning weh there have beehe sever all disputes and differences between the Inhabitants of the said Towne and their neighbour Francis Browne the which in parte were issued both by my Predecessor and my selfe but since fully concluded and detérmyned betweene them by Articles of Agreement, the which Article I doe hereby confirme and allowe.” It is’ upon these words in italics that the city rests its claim to the land under water in Gravesend bay. Upon these words also rests the decision in Somerville v. City of New York (78 Misc. Rep. 203), Somerville v. City of New York (89 id. 188) and Nevins v. Friedauer (198 App. Div. 250). They should be carefully considered. The patent begins by confirming the Kieft patent. It cannot be disputed that = the *200Kieft patent was bounded on the west by the neck of land patented to Jansen in 1645, and then owned by Francis Browne. The articles of agreement of the preceding month between the town of Gravesend and Francis Browne confirmed the neck to Browne, and this agreement is expressly ratified by this patent. This patent in addition included all Coney Island. It grants all the land within a line stretching from the westermost point of Coney Island unto the southermost part of Anthony Jansen’s old Bowery. What is the southermost part of Anthony Jansen’s old Bowery? It has heretofore been held that the word “ Bowery ” should be applied to the eighty-seven morgens, and did not include the neck to the south granted to Jansen by the Kieft patent as part of the Bowery. The word “ Bowery ” means farm. It does not appear why a' part of the farm, although a neck of waste farm land, should be cut off to find the southermost part thereof. If the line is drawn from the end of Coney Island to the south end of the neck or the mouth of Coney Island creek, then the boundary is complete. It seems to me, notwithstanding the Lefford and Strong map of 1788, and the Terhune map of 1797, that the southermost portion of Jansen’s old Bowery is the southermost portion of his land, and that is the mouth of Coney Island creek, so the line ends where the description begins. In the words commonly used in conveyances, it comes to the point or place of beginning. To carry the line to the point of the eighty-seven_ morgens leaves a hiatus in the description. The description ends half a mile from the place of beginning. It also violates the rule that a grant from the sovereign must be construed against the grantee. Whether this neck of land became politically a part of the town of Gravesend is of no moment. The Lovelace patent was a grant of land; and the problem before us is to determine from information drawn as much as possible from contemporary sources, the bounds of the grant. To my mind the determining consideration is that the original Dutch patent to Gravesend (the Deborah Moody patent) did not reach the bay but was separated by the interposition of the Jansen neck of land; that the Lovelace patent added Coney Island to the grant and then drew a line from the end of Coney Island to connect with the Deborah Moody grant. If this line be a right line, it leaves undisturbed the judgments in the cases of Somerville v. City of New York and Nevins v. Friedauer, as the lands affected by these judgments lie south of such a line and would be included within the grant. Whether the line is a right line or follows the in curve of the shore, it is not relevant to the question before us to inquire. In the case last cited the documents were not presented to this court; the question was whether, assuming *201that the land under water belonged to the town of Gravesend, it had been competently conveyed to the plaintiff’s grantor.
Following the Lovelace patent is the Dongan patent. This was granted in 1686. It recites that there is a town of Gravesend containing a parcel of land “ beginning at the Westermost Part of a Certaine Place Called Cunie Island and from thence bounded to the Westermost Parte of Anthony Johnson and Robert Pennoyer and soe from thence bounded by New Utrecht ffence According to Agreement,” etc., as according to several Indian deeds, agreements, writings, and the patent from Governor Francis Lovelace, dated A. D. 1670, may more fully and at large appear. The land so described was confirmed and granted to the town of Gravesend. I find nothing in this patent indicating an intent to do more than confirm prior grants. The Lovelace patent enlarged the Kieft grant by adding Coney Island thereto, but the Dongan patent only grants and confirms what it recited as belonging to the town. It will be noted that the line from the westermost part of Coney Island is no longer to the southermost part of Anthony Jansen’s old Bowery, but the grant uses the peculiar language “ from thence bounded to the Westermost Parte of Anthony Johnson and Robert Pennoyer.” Once more in the Lefford and Strong and Terhune maps this line is drawn to the point which is geographically the westermost part of the Jansen Bowery. But this carries the line to land which undoubtedly is far to the north of any line ever claimed to be the boundary of Gravesend. The eighty-seven morgens granted to Jansen belonged and always have belonged to the town of New Utrecht. The recitals in deeds, the assessments for taxes, the inclusion of the owners, Hansen and Joosten, as patentees in the Dongan patent to New Utrecht, which preceded by four months that to Gravesend, abundantly establishes this fact. The line cannot, therefore, be drawn literally to the westermost point of land of Jansen; it satisfies the words if the land is “ bounded ” to the nearest westerly point of Jansen’s land, viz., to the mouth of Coney Island creek. This coincides with the Lovelace patent, it gives a boundary for the town not broken by a gap over intervening land, and construes the patent favorably to the sovereign.
However that may be, I cannot agree with Mr. Justice Kelly that by filling in the land under water, pursuant to the permission of the department of docks, the plaintiff abandoned its riparian rights. Certainly there can be no inference that the owners of the upland intended to expend $67,000 in filling in the land for the purpose of depriving themselves of valuable riparian rights. In Tiffany v. Town of Oyster Bay (234 N. Y. 15) it was held that the plaintiff by filling in in front of his upland under the mistaken
J *202notion that he owned the land under water, did not lose his riparian rights. In the case at bar, not only did the plaintiff claim title to the land under water by the grant from the State, but the land was filled in by consent of the city. Even if it be held that its title to the land failed because of a prior grant to the town of Gravesend, it acted in good faith, and thus, within the reasoning of the Tiffany case, did not lose its riparian rights.
The judgment should be modified so as to adjudge that the filled-in land belongs to plaintiff and defendant Partridge, the twenty-fifth finding of fact reversed, and as modified affirmed, without costs.
First, the court is unanimous that plaintiff owned the upland.
Second, the court decides that the land under water belongs to the City of New York, as successor to the city of Brooklyn and the town of Gravesend. Opinion by Kelly, J. Manning and Kelby, JJ., concur; Blackmar, P. J., reads in dissent, with whom Jaycox," J., concurs.
Third, the court decides that the act of plaintiff in filling in the land under water, pursuant to the permission of the department of docks, does not affect its riparian rights. Opinion by Black-mar, P. J. Jaycox, Manning and Kelby, JJ., concur; Kelly, J., reads in dissent.
Fourth, the court decides that the judgment should be modified by eliminating the obligation of the city to account for the rents of buildings which stand upon the made land. Opinion by Kelly, J. Manning and Kelby, JJ., concur; Blackmar, P. J., reads in dissent, with whom Jaycox, J., concurs.
Settle . order on notice, modifying judgment and findings in accordance with prevailing opinions.