(concurring). I concur in the opinion of Mr. Justice Bergah for reversal except that part which rejects the claim of an easement in favor of the corporate defendant. In my opinion the White Lake Boating and Fishing Corporation acquired the right to use the waters of the lake, for boating, boat livery, bathing and fishing by virtue of an easement that is appurtenant to land under the lake owned by the said defendant. This easement was originally created in the deed from Richard H. Gillespie to Frank Bezer in 1907. In that deed it was said: “ It is expressly understood that with this grant the party of the second part is to have all reasonable and proper boating, boat livery, bathing and fishing privileges on all parts of the said lake ”. By every canon of construction this language should be held to have created an easement appurtenant to the land granted and not merely a personal privilege or easement in gross. An easement in gross will not be presumed where it can be fairly considered to be appurtenant to land (Wilson v. Ford, 209 N. Y. 186,196). It is elementary that where the terms of a conveyance are doubtful the grantee may take the language most strongly in his favor. By a series of mesne conveyances part of the property described in the deed from Gillespie to Bezer passed to the defendant corporation, and the easement originally created attached to every part of such property. Since it became appurtenant in the original deed it is immaterial that in some of the later conveyances it was not expressly mentioned. As against this corporate defendant, at least, the plaintiff therefore had no cause of action.
Halperh, J. (dissenting). I would affirm the judgment upon the opinion of the court below, if the review is limited to the issues there presented, as I believe that the judgment was entirely sound upon those issues, or I would reverse and order a new trial, if the new issue sought to be raised upon this appeal, is admitted into the case.
*339As Justice Elswobth said in Ms opinion, “ The validity of plaintiff’s title under such deed [deed to the plaintiff corporation dated October 10, 1940] does not stand in question here either by way of contrary claim or contrary evidence. Thus is rendered superfluous in this connection any discussion of back title or sufficiency of title ”.
The principal defense urged by the defendants upon the trial was that the defendants had acquired an easement for boating, boat livery, bathing and fishing on all parts of White Lake. The trial court found that this easement had not been established and Justice Bebgan’s opinion comes to the same conclusion. I concur in that portion of Ms opimon.
Upon a motion to vacate the judgment and upon this appeal, the defendants’ newly retained counsel sought to inject a new claim wMch had not been presented upon the trial, namely, that one Morrison, the common grantor, had, prior to the conveyance to the plaintiff’s predecessor in title, conveyed certain parcels of land fronting on the lake in such terms that the grantees acquired the land under water adjoining the premises conveyed, to the center of the lake. TMs claim had not been advanced upon the trial and the defendants had offered no proof in support of it but the defendants’ counsel, upon an examination of the deeds introduced by the plaintiff in establisMng its chain of title, has found certain deeds which he alleges support the claim. There is nothing in the record to show that the defendants have succeeded to the interests of the grantees whose deeds are alleged to have included land under water to the center of the lake. It is stated in the defendants’ brief that the defendant Williams has succeeded to a strip of land under water allegedly conveyed by the common grantor by deed dated June 26, 3865, but this statement is based upon an affidavit made upon the motion to vacate the judgment, purporting to show a chain of descent from the grantee in that deed to the defendant Williams; it is not supported by anything in the record of the trial itself.
While the defendants have not connected themselves with the title of the tMrd persons, it is the contention of their counsel upon this appeal that by reason of the conveyances by the common grantor, the ownership of the bed of the lake is so cut up that an injunction against the use by the defendants of the portions of the lake owned by the plaintiff would be incapable of enforcement and that therefore a court of equity should withhold the remedy of injunction.
*340Even if it is assumed that the descriptions in the deeds to the third persons included land under water to the center of the lake, it is impossible to determine, upon this record, whether the defendants’ new claim has any validity. The lands under water alleged to have been so conveyed have not been mapped or plotted and the descriptions are of such a character that they cannot be intelligently related to the plaintiff’s lands except with the assistance of a surveyor. The lands under water would presumably consist of triangles of land running to the center of the lake in the shape of pieces of pie. To what extent they would cut up the bed of the lake claimed by the plaintiff, it is impossible to say upon the proof before us.
If this new theory is to be admitted into the case at this stage, the most that the defendants can reasonably ask is that the case be sent back for a new trial. There is certainly no justification for attempting, upon the basis of the defendants’ new assertion, to make a final determination at this time that the bed of the lake owned by the plaintiff is so reduced in size or is rendered so discontinuous by the deeds relied upon, as to make it impracticable for a court of equity to protect the plaintiff’s title by injunction.
Upon the record as it now stands, the injunction granted by the court below is capable of ready enforcement. The lake is one of substantial size, several hundred acres in area. Looking in a northerly direction, the lake resembles an inverted “ L ” with a widening at the top and a widening at the bottom and the narrowest part at the angle of the “ L ”. The plaintiff has been found upon undisputed proof to be the owner of most of the bed of the lake. The plaintiff owns the whole bed, except (1) a cove on the westerly side of the bottom part of the inverted “ L ”, (2) a segment at the extreme southwesterly corner of the top part, and (3) a marginal strip along the northerly shore of the top part and a similar strip along the southerly shore of the bottom part, 200 feet in width and, at one place for a short distance, 225 feet in width. The area of plaintiff’s land under the waters of the lake is 226 acres. The land owned by the plaintiff is clearly marked in blue lines upon a map introduced in evidence and attached to and made a part of the judgment. The lands owned by the individual defendants, from which they carry on their respective boat livery businesses, are clearly marked on the map in green, brown and red colors. These extend a distance of 200 feet into the lake and the defendants are forbidden by the injunction to run their boats into the lake beyond that point. There can be no doubt about the mean*341ing of this or the ability of a court of equity to enforce the decree. The simple and practical effect of the injunction is that the defendants cannot engage in the boat livery business without obtaining a license from the plaintiff similar to licenses which they obtained in the period from 1940 to 1949.
It is important to bear in mind the nature of defendants’ businesses and the nature of their use of the lake. The individual defendants operate boat liveries from their respective premises. They rent out boats upon the representation to their customers that they have the right to operate throughout the lake. The defendants transport passengers on pleasure trips and sightseeing excursions throughout the lake and give their customers bathing and fishing privileges throughout the lake. The carrying on of this type of business obviously involves a trespass upon the plaintiff’s lands, regardless of the ultimate outcome of the newly raised controversy as to possible ownership by others of small parts of the lake, and the plaintiff is entitled to an injunction against the continuance of the trespass. There is no reason for a court of equity to be reluctant to lend its aid to prevent a trespass of the character here involved.
It has been assumed for the purpose of the foregoing discussion that there is some merit in the defendants’ claim that the deeds by the common grantor conveyed land under water to the center of the lake. But, upon the face of the deeds, it might well be held as a matter of law, as the plaintiff-respondent argues, that the deeds are unambiguous and that they do not convey any lands beyond the shore of the lake. However, even if it is assumed that the language is ambiguous, the most that can be claimed is that the door is open for the admission of parol evidence as to the intention of the parties to the deeds. There is certainly no justification for holding as a matter of law that the language of the deeds must necessarily be construed as conveying land under water to the center of the lake.
The case of Hammel v. Camp Ranger, Inc. (275 App. Div. 23, 25, affd. 300 N. Y. 602) upon which the defendants rely, held that parol evidence was admissible to clear up the ambiguity there involved. In the Hammel case, the description ran “ to Pleasant Pond low water mark, thence * * * along said Pleasant Pond shore * * *. The said premises to run along the said Pleasant Pond and to run to the low water mark thereof ”. It was held, in the light of the circumstances under which the property had been conveyed and the course of conduct of the parties thereafter, and other evidence of intention before *342the court, that this language included the land under water. In the deeds here under consideration there is no reference in the descriptions to “ running along the lake ”. The descriptions run specifically to the shore and along the shore at low water mark. Furthermore, the deeds each contain a statement of the extent of the area conveyed, a limitation which tends to exclude the land under water. It might well be held, under the long line of cases cited in the Hammel opinion, that the deeds here in question are free from ambiguity, and that, as a matter of law, they do not include the land under water beyond the low water mark.
But, as I have indicated, even if the language of the deeds were regarded as ambiguous, the ambiguity would have to be resolved by an inquiry into the intention of the parties. No evidence upon that subject was offered by the defendants and since the defendants did not even urge, upon the trial, the interpretation of the deeds which they now advance, the plaintiff had no opportunity to offer any evidence on the subject. Whatever evidence can lie found in the record upon this point tends to support the plaintiff’s interpretation of the deeds rather than the defendants’. Morrison, the common grantor, apparently did not regard the conveyances as including any land under water because, when he subsequently conveyed to the plaintiff’s predecessor in title, he conveyed the uplands ‘ ‘ Together with all the land covered by the waters of White Lake * * * not heretofore conveyed to D. B. Firme or to the party of the second part ”. The common grantor had previously conveyed the cove on the westerly side of the bottom part of the inverted “ L ” to Kinne and he had conveyed to the grantee, the plaintiff’s predecessor in title, other portions of the lake before mailing the master conveyance. It will be noted that there was no exception in the deed by the common grantor, referring to any conveyance of land under water by the prior deeds upon which the defendants rely.
So far as the record shows, none of the grantees under the deeds upon which the defendants rely and none of their successors in interest ever claimed that they had acquired title to any land under water by virtue of the language used in the conveyances. On the contrary, it appears that for more than half a century they acquiesced in the claim of the ownership of the bed of the lake by the plaintiff’s predecessors in title and by the plaintiff. In fact, it appears that some of the grantees and their successors in interest purchased from the plaintiff and the plaintiff’s predecessors, lands under water for a distance *343of 200 feet in front of their respective premises, transactions which were wholly inconsistent with the interpretation of the original deeds which is now urged by the defendants.
Insofar as this case turns upon an interpretation of the deeds, we have this peculiar situation: The defendants, who are
strangers to the title, urge an interpretation of the deeds which neither the grantor nor the grantees, or their successors in interest, ever advanced.
It further appears that the individual defendants themselves acquiesced in the plaintiff’s interpretation of the deeds and asked for, and accepted, licenses from the plaintiff for the use of the waters of the lake during the period from 1940 to 1949. While this is not sufficient to create an estoppel in the absence of a showing by the plaintiff of reliance to its detriment, it indicates that the defendants had acquiesced in the practical construction which the parties to the conveyances had earlier adopted.
The defendants made an abortive attempt in 1949 to acquire an easement covering all the waters of the lake by causing the corporate defendant of which the individual defendants are stockholders to purchase a small parcel of land extending 225 feet into the lake, under a deed which purported to give the grantee an easement for the use of all the waters of the lake. The corporate defendant then attempted to give the benefits of this easement to the individual defendants for the operation of their boat livery businesses from the three other points on the lake, to which reference has been made above. The trial court has found, and a majority of this court has approved the finding, that this attempt was a futile one and that the grantor who had conveyed to the corporate defendant had no easement to convey and that the defendants acquired none. It was in reliance upon this alleged easement, and not upon the basis of any of the claims now asserted, that the defendants declined after 1949 to apply for or accept licenses from the plaintiff.
As a matter of fact, the chain of title relied upon by the defendants to give them the easement is wholly inconsistent with their new claim upon this appeal. The easement is said to have been originally obtained from one Gillespie by deed dated July 17, 1907. Gillespie was one of the intermediate owners in the plaintiff’s chain of title. The Gillespie family acquired its title by conveyances from 1873 to 1892, long after the original common grantor, Morrison, had made the conveyances upon the interpretation of which the defendants upon this appeal rely.
*344Upon the trial, the defendants asserted that in 1907, at the time of the granting of the alleged easement, Gillespie was the owner of all of the bed of the lake, with exceptions not here material, and that he had a right to grant the easement. Gillespie’s title to the bed of the lake is now held by the plaintiff. It is thus apparent that the defendants’ present contention is in direct conflict with their position upon the trial, since they now claim that, by conveyances made by Morrision back in the 1860’s, Morrison lost the title to parts of the bed of the lake and that Gillespie as his successor in interest and the plaintiff as Gillespie’s successor, did not acquire title to those parts.
Upon the record as it now stands, this court would be amply justified in affirming the judgment, and in rejecting the new claim, either upon the ground that it had not been presented to the trial court and that it is inconsistent with the defendants ’ position upon the trial, or upon the ground that, even if it were admitted into the case at this stage, the new claim is without merit. However, if it is believed that the new claim has sufficient merit to warrant further inquiry, the most that can be asked by the defendants is that they be given an opportunity to present it fully upon a new trial. The two elements upon which their claim rests — the interpretation of the deeds in the light of parol evidence, and the effect upon the right to injunctive relief of the interruptions or gaps in the plaintiff’s ownership of the bed of the lake which would result from a finding in favor of the defendants on the issue of interpretation — both require a thorough-going inquiry by a trial court. A dismissal of the complaint at this stage is certainly unwarranted.
Finally, it should be noted that the judgment appealed from not only grants an injunction but also adjudicates the plaintiff’s title and the defendants’ title and disposes of the defendants’ claim of an easement. A majority of the court is in agreement that the rejection by the trial court of the defendants’ claim of an easement was correct. This phase of the decision ought not to be destroyed, as it would be by a reversal of the judgment and a dismissal of the complaint.
Imrie, J., concurs with Bergah, J.; Foster, P. J., concurs with Bergah, J., in part in memorandum; Coon, J., concurs with Bergaet, J., and Foster, P. J.; Halperh, J., dissents in opinion.
Judgment reversed, on the law and facts, and in the exercise of discretion, and judgment granted for defendants dismissing the complaint, with costs. The appeal from the order refusing a new trial is dismissed. The order to be entered herein to be settled on notice.