Peter B. Yates, Respondent, v. Joseph G. Van De Bogert et al., Appellants

'Peter B. Yates, Respondent, v. Joseph G. Van De Bogert et al., Appellants. Where á railroad corporation is authorized by its charter to acquire by purchase such real estate as may be necessary for the construction of its road, it will be presumed that lands deeded to it are acquired for that purpose. By a deed purporting to convey a fee, it acquires title in fee; and where the land is no longer needed for its purposes, it has the right to sell and convey the same. In an action of ejectment the land in dispute was a strip upon the west side of a creek. Plaintiff’s deed described the land as beginning at a point on the west bank of the creek, thence “ following said west bank on a general course of north, four degrees twenty-four minutes west.” Held, that this gave to plaintiff the land to the margin of the creek at low-water mark, although a survey of the land, according to the courses and distances specified in the deed, would not carry him to the creek, as the creek being a natural monument, the courses and distances must yield to it. (Argued April 27, 1874; decided May 26, 1874.) Plaintiff’s grantees built a fence on the west side, where it could be conveniently built without danger of being washed away; not as a line fence, but to keep cattle from coming across the creek uptin the land. The owner of the land occupied by defendants on the opposite side had built and kept up at times a fence running across the creek and connecting with, the first fence. Held, that this had no tendency to show an adverse possession; nor did the fact that defendants’ cattle and horses sometimes crossed the creek upon the strip between the fence and the creek. Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of plaintiff entered upon a verdict. This was an action of ejectment. The premises in question were a strip of land covered by a shed erected by defendants. The shed was built over a stream known as Mill brook. The west side of the shed extended west of the water’s edge on the west side of the stream. Both parties claimed under Daniel D. Campbell. In 1820 he deeded to the Mohawk and Hudson Railroad Company the land on the west side of the creek. The land was described as bounded “ easterly by the City Mill creek ” (the brook or creek in question). The Hew York Central Railroad Company subsequently acquired the title so conveyed and deeded to plaintiff the land bounded on the creek side as follows : “ Beginning at a point on the west bank of Mill brook * * * , and following said west bank on a general course of north, four degrees twenty-four minutes west, 215 feet.” Defendants claimed under a lease from Campbell. The Mohawk and Hudson Railroad Company built a fence some little distance from the creek soon after it purchased, where it would be beyond the reach of high water. Defendants claimed that this was located by the parties as a division fence; they also claimed by adverse possession up to said fence. The evidence upon the question as to the practical location was conflicting. This question was submitted to the jury. The court refused to submit the question of adverse possession. All the evidence bearing upon the latter question was, in substance, that in 1830 a fence was built by the occupant on the east side across the creek connecting with the fence so built by the railroad company. This fence was removed in 1845; that Campbell at times stated that he claimed to the west side of the creek and up to the fence. The lot upon the east side of the creek was used as a pasture lot until 1845. Cattle and horses therein occasionally crossed the creek to the west side. The land between the creek and fence was not cultivated or improved. The shed was built by defendants in 1868. Geo. W. Miller for the appellants. Where two descriptions in a deed are not identical, or are inconsistent with or repugnant to each other, the first or particular description will prevail. (2 Black. Com., marg. pag., 381; 3 Cruise Dig., marg. pag., 247.) If there are certain particulars sufficiently ascertained which designate the thing intended to be granted, the addition of a circumstance, false or mistaken, will not frustrate the grant. (Jackson v. Clark, 7 J. R., 217; Jackson v. Marsh, 6 Cow., 281; Jackson v. Loomis, 16 J. R., 60, 84; Peck v. Mallams, 10 N. Y., 509, 533; Sherman v. McKeon, 38 id., 266, 272.) Where anything in the description shows that the courses and distances are right, they will of course control. (Baldwin v. Brown, 16 N. Y., 361; Jackson v. Sill, 11 J. R., 201,218.) When the possession is actual, exclusive, open and notorious under a claim of title adverse to any and all other for the time prescribed by statute, such possession establishes a title. (Cahill v. Palmer, 45 N. Y., 479; Lane v. Gould, 10 Barb., 254; Becker v. Van Valkenburgh, 29 id., 319; Crary v. Goodman, 22 N. Y., 175.) The grantor can hold adversely to his grantee. (Cramer v. Benson, 4 Lans., 291; Kent v. Harcourt, 33 Barb., 491; Jackson v. Burton, 1 Wend., 341.) The buildings in front formed both iuelosure and improvement within the meaning of section 85 of the Code. (Becker v. Van Valkenburgh, 29 Barb., 319; Doolittle v. Tice, 41 id., 181.) S. W. Jackson for the respondent. The premises conveyed by Campbell to the Mohawk and Hudson Railroad Company extended eastwardly to the middle line or thread of Mill creek. (3 Kent Com., 427; Ex parte Jennings, 6 Cow., 527; Canal Comrs. v. People, 5 Wend., 448; Luce v. Carley, 24 id., 403; Seneca Nation v. Knight, 23 N. Y., 498; Child v. Starr, 4 Hill, 273; Bissell v. N. Y. C. R. R. Co., 23 N. Y., 61; Perrin v. N. Y. C. R. R. Co., 36 id., 120; Herring v. Fisher, 1 Sand., 349; Hanenford v. McLaughlin,, id., 323; Lozier v. N. Y. C. R. R. Co., 42 Barb., 467; Sizer v. Devereau, 16 id., 160; Varick v. Smith, 9 Paige, 550, 567.) Where land is described in a deed as running to the bank of a creek, the grantee takes to the margin of the creek at low-water mark. (Halsey v. McCormick, 13 N. Y., 296; Child v. Starr, 4 Hill, 373.) Where a deed describes a monument as standing on the bank of a stream from which a line is described as running along the stream or on its bank, the grant is not restricted to the location of such monument as a corner. (Child v. Starr, 4 Hill, 375; Luce v. Carley, 24 Wend., 453; Seneca Nation v. Knight, 23 N. Y., 498; Cold Spring Iron-works v. Tolland, 9 Cush., 495.) That which is most material and certain in the description of a deed of premises conveyed, will control over that which is less so. (2 Hill, on R. E., 363; Jackson v. Loomis, 19 J. R., 449; Jackson v. Moore, 6 Cow., 717; Jackson v. Camp, 1 id., 612; Bartlett v. Blanchard, 13 Gray, 429; Doe v. Thompson, 5 Cow., 373; Lincoln v. Wilder, 29 Me., 169.) A deed susceptible of two constructions is to be construed most strongly against the grantor. (Jackson v. Blodgett, 16 J. R., 172.; Hathaway v. Power, 6 Hill, 457.) Where a deed describes a boundary line by reference to natural objects or other monuments, so that the location is unmistakable, the description must control; and parol evidence to vary it is inadmissible. (Clark v. Wethy, 19 Wend., 320; Clark v. Baird, 5 Seld., 204; Hubbell v. McCullough, 47 Barb., 285; Terry v. Chandler, 16 N. Y., 358; Vosburgh v. Teator, 32 id., 568; Sherwood v. Warner, 6 Alb. L. J., 94.) The erection and maintenance by the railroad company of the fence on the edge of the creek, did not create a presumption of an agreement by it that such fence should be its boundary line. (Jackson v. Halstead, 5 Cow., 216.) There was no such substantial inclosure of the premises as would give title to Campbell by adverse possession. (Code, § 85; Doolittle v. Tice, 41 Barb., 184; Jackson v. Warford, 7 Wend., 65; Jackson v. Schumacher, 2 J. R., 233.) The continuance of possession by Campbell, after his conveyance to the railroad company, was in the character of tenant of his grantee. (Burhans v. Van Zandt 5 Barb., 100; Jackson v. Barton, 1 Wend., 343; Tyler on Ejectment, 860-877.) [MAJORITY — Grover, J,] Grover, J, The Mohawk and Hudson Railroad Company was authorized by its charter to acquire, by purchase, such real estate as was necessary for the construction and operation of its railroad. The lands embraced in the deed from Campbell to it will be presumed to have been acquired for this purpose. (Chautauqua County Bank v. Risley, 19 N. Y., 370; see 380.) The company acquired title in fee under that deed. When the land was no longer necessary for the purposes of the corporation it had a right to sell and convey the same. The plaintiff deduced a regular title to the lands embraced in his deed from the Hew York Central Railroad Company from the Mohawk and Hudson Railroad Company; and as the lands in dispute are clearly covered by the former deed, he showed a paper title from Campbell to himself of those lands if included in his deed from the Hew York Central. Campbell was shown to be the common source of title; the defendants claiming the land under a lease from him, made subsequent to his grant to the Mohawk and Hudson Railroad Company. This showed the paper title in the plaintiff to the land claimed, if covered by his deed from the New York Central Company. The land in dispute is a strip upon the westerly side of Mill creek. The plaintiff has recovered only to low-water mark upon that side. He has not appealed from the judgment; hence, it is not material to determine whether his deed gives him title to the center of the creek, which was clearly so under the deed from Campbell to the Mohawk and Hudson Railroad Company. The Central Company having title to the center of the creek, gave a deed to the plaintiff describing the land, first, as beginning at a point on the west bank of Mill creek, thence following said west bank in a general course, etc. This embraces all the land to the margin of the creek at low-water mark. (Halsey v. McCormick, 13 N. Y., 296; Child v. Starr, 4 Hill, 373.) We have seen that it is not necessary to determine whether by the further and more general description of the land intended to be conveyed, declaring it bounded on the east by the creek, does not include all to the center of the same. The counsel for the appellants insists that inasmuch as a survey of the lands embraced in the plaintiff’s deed, according to the courses and distances specified in the deed, would not carry him to the creek, such survey should control, and that his line must be located in accordance therewith. But it is well settled that that which is most certain must control and what is less certain must yield; courses and distances must yield to monuments upon the premises, either natural or artificial. (Jackson v. Loomis, 19 J. R., 449; Jackson v. Moore, 6 Cowen, 717.) The creek is a natural monument, and must prevail over the distances specified in the deed. The jury found that there had been no practical location of the line. This put an end to that question. The counsel of the appellants excepted to the refusal of the judge to submit to the jury the question whether the lands in dispute had not been held and possessed by the defendants and those under whom they claim, adversely to the title of the plaintiff, for twenty years prior to the commencement of the action. The Code (§ 81) provides that the occupation of the premises shall be presumed to have been in subordination to the legal title unless the contrary appears. The evidence shows that all the occupation there had been of the strip between the fence on the west side and the creek had been by Campbell, and his lessees, for portions of the time. Campbell had granted the premises to the Mohawk and Hudson Railroad Company, and never thereafter had any paper or other title, unless acquired by adverse possession. The premises had not been cultivated or improved by Campbell or his lessees; they had not surrounded it by any permanent inclosure; the railroad company erected a fence on the west side of the creek, not as a line fence, but because it could be conveniently built there for the purpose of keeping animals from coming across the creek upon their lands. The fact that Campbell or his lessees had a fence a part of the time across the creek, connecting with this, to protect his land on the east side from animals passing up and down the creek, had no tendency to show an adverse possession; nor did the fact that their cattle and horses sometimes crossed the creek and trespassed upon the strip between the fence and the creek have any such tendency. That Campbell sometimes said the fence on the west side of the creek was upon his line, did not amount to anything. To constitute an adverse possession, the possession must be open, notorious, and under a claim of title adverse to that of the true owner, such as that he may be aware of the claim made. There was nothing of the kind in the present case. The evidence offered and rejected would not, in connection with the other evidence, have shown a practical location of the line or an adverse possession. The judgment appealed from must be affirmed, with costs. All concur. Judgment affirmed.