The opinion
Hagarty, J. (dissenting).
I dissent in part and as to the following damage parcels: 16, 16-A, 16-B, 19, 21, 21-A, 22, 22-A, 23, 23-A, 24, 24-A, 26, 27, 27-A, 27-B, 28, 29, 30, 31, 31-A, 32, 33, 34, 35, 36, 36-A, 37, 37-A, 38, 38-A, 39, 40, 40-A, 4Ó-B, 41, 41-A, 42, 43, 43-A, 44, 46, 46-A and 46-B in Jamaica Bay Proceeding No. 1; 3, 4, 5, 6 and 8 in Jamaica Bay Proceeding No. 2; and 1, 17,18 and the land portion of 19, in Addition to Marine Park proceeding, and vote to reverse the decrees as to such parcels and to remit for the taking of proof as to devolution of title and the making of awards in accordance therewith.
*206 The only important differences between these proceedings and the former one (Matter of City of N. Y. [Gerritsen Marine Park], 248 App. Div. 240 ; affd., 275 N. Y. 456 ) are that the respondent now admits that which it previously denied and challenged, namely, that the Strom kill was the kill coming from the sea described in the Hudde and Gerritsen patent, and that the scope of that patent included the land running along the easterly side of that kill which is known as Baes Jurians Hook. My colleagues are of opinion that a changed translation of the wording of the description of the patent and a construction to be placed thereupon require a conclusion that the southerly boundary of the patent was not the ocean but Mill creek. I am of opinion that the change in translation, even if accepted, is not only immaterial, but indicates just as clearly that the southerly boundary was the ocean. The word “ van ” in the description may be translated either as “ of ” or “ from.” It is used four times in the same description other than at the disputed place and, in three of those instances, it is admitted that the correct translation is “ of.” If it means “ of,” the language of the patent is translated to refer to the land as extending the length of a kill which comes from the sea and continues almost northerly into the woods. If it means “ from,” the patent may be read as relating to land stretching in length almost northerly from a kill coming from the sea. In either case, the plain meaning of this patent is that its length is measured from the kill as it comes from the sea. A different holding involves rejection of all the proof adduced. It is necessary to ignore the fact that the kill comes from the sea and necessarily continues in a northerly direction, and to place the kill, admittedly the Strom kill, in an easterly and westerly direction beyond and to the north of the broken lands. Mill creek fulfills this requirement in so far as it is portrayed on the Hubbard map as running easterly and westerly to the north of the broken lands, but it is not, nor was it ever, regarded as the Strom kill, the kill coming from the sea. The Strom kill is a broad, well-defined watercourse which, at the time of the patent, had its mouth at the ocean and, at the present time, east of ftockaway Inlet, due to accretion of the peninsula to the south. It runs northerly or almost so and terminated, at the time of the patent, in the vicinity of - Kings highway, or near the woods of Gravesend referred to in the patent. It is so depicted on every map in the record, inclusive of the Hubbard map of 1666 and the Beers map of 1873, which latter is admitted to be correct by all parties. This is the watercourse which is referred to as a boundary line by numerous town patents, e. g., the Dongan patent to Gravesend of 1686 reading “ and from thence Running A Long the hollow to *207 the head of a Certaine Creeke, Commonly Called and knowne by the name of the Strom Kill, or Hugh Garresttsen Creeke, and a Long the Said Creeke to the maine Ocean." There is not a shred of proof in this entire voluminous record that Mill creek was ever known as the Strom kill or as a branch of it. In the light of this overwhelming and uncontradicted showing, I am unable to reject the findings of the arbitrators of the 1696 proceeding, outstanding men of the community, who recognized the Strom kill as the watercourse it is undeniably shown to be, as the kill referred to in the patent and as the kill which the patent contemplated as extending almost northerly to the woods, and to accept instead the theory of the present day translator who “ only had a comparatively short time to look into this thing." The findings of the arbitrators in these respects were not even questions at issue, but were accepted and acknowledged as facts, apparently with the acquiescence of all concerned, as premises leading to the conclusion reached. The principal difficulty in seeking to exclude the broken lands from the scope of the patent is the effort to find something in the description which limits or qualifies the length of the Strom kill as it comes from the sea. The absence thereof renders the differences in the translations immaterial and accounts for the acceptance of both as meaning the. same thing.
It would serve no useful purpose to review all the pertinent proof, in the light of the able and painstaking opinions of my colleagues and of the learned Special Term justice, as well as the opinion written for this court when the same question was presented in the former proceeding. (Matter of City of N. Y. [Gerritsen Marine Park], supra.) There are, however, a number of conceptions of the proof and deductions therefrom, influencing the majority of this court in arriving at their conclusion on the present appeal, with which I cannot agree and to which attention should be directed.
The source of title to Barren Island, which island fronted on the ocean, is a most important factor. Without proof, and notwithstanding the language of the Equindito deed of 1664, it seems to be accepted as a fact that that deed purported to convey title only to Barren Island. On the former trial, Mr. Clark, for the respondent, was of opinion that the deed was to the broken lands. The deed itself says so. That the broken lands, in the aggregate, were considered as an “ island" is evident from the Hubbard map showing them as such. No patent was ever granted in connection with the Equindito deed, and I do not understand that the majority of this court have found, or that the city contends, that it was efficacious as a source of title, although it is urged as an offset to the claim that the source of title to Barren Island was the *208 Hudde and Gerritsen patent. This deed, made at the time of the English invasion, might have served as a basis for an English patent in the event that the existing Dutch patents were revoked by the new rulers. Instead, the Dutch patents were confirmed. Elbert-sen had acquired his interest from the Gerritsen heirs prior to, and not subsequent to, the Equindito deed. Although Elbertsen’s deed is dated 1666, the contract of sale of the remainder of the patented lands, pursuant to which the deed was delivered, was made in 1662, and imports possession in Elbertsen as of that time, it being acknowledged that the heirs had sold and that Elbertsen had bought the property in question. In 1679, an action by the inhabitants of Flatlands against Elbertsen on the ground that the latter made claim to a certain tract of land was decided in favor of the defendant. The court entry immediately following recites that Captain Elbertsen complained that three individuals had trespassed “ upon his Island called Bearn Island to his Damage.” These entries appeared to me in the former proceeding, and still do, to indicate the existence of cross-actions relating to Barren Island. It would be a most remarkable coincidence that, on the same day and apparently at the same time, two totally different and independent actions relating to trespass, both involving Captain Elbertsen, were before the tribunal. Respondent offers the entire docket of the court for that day showing the disposition of numerous cases in addition to these two. The entries of these two follow each other, however, and the significant fact remains that, although in each and every other case the disposition thereof is noted, there is no notation of the disposition of the complaint by Captain Elbertsen against the named individuals of trespass upon Barren Island, and apparently the verdict of the jury in the action against Elbertsen was determinative of both proceedings. Thus it is reasonably clear that Elbertsen did claim title to Barren Island and that his claim was upheld two years prior to the conveyance to him of Equindito in 1681.
The Nicolls patent to Flatlands of 1667 describes the westerly boundary as the Strom kill and the easterly boundary as “ ye Mouth of ye Creek or Kill ” which is undisputedly stated to be Fresh kill, to the east of Ffirkins hook and having its mouth at Jamaica Bay. The designation of Ffirkins hook in the description is utilized to locate a point of land, but the land of the town “ runnes about ye end of ye said Point as well as on ye one syde of it.” With the westerly boundary terminating at the ocean and the easterly boundary terminating at Jamaica Bay, I am unable to discern any reason for the belief that lands between these two points, inclusive of the broken lands, were not therein included.
*209 Nor am I able to subscribe to reasoning that the length of the lands within the Hudde and Gerritsen patent should be measured and circumscribed by the width described therein.
I have no doubt that the casual reference in the letter of the West India Company to the effect that Hudde and Gerritsen held about 1,800 morgens of land on Long Island related to the mainland and that the writer did not include these broken and wet lands within his estimate.
The only substantial obstacle to the construction of the patent as inclusive of the broken lands is the Kieft patent of 1646 to Captain Onderhil in return for his services in fighting Indians. Numerous other patents, ostensibly derogatory of the Hudde and Gerritsen patent, of lands within the conceded bounds of the latter were issued. The strictures of the Dutch officials as to speculation and land-selling must be borne in mind with respect to them. Here, too, Elbertsen acquired title from Spicer’s heirs subsequent to and not prior to the time that he had acquired his interest in the Hudde and Gerritsen patent. The situation suggests that he deemed it politic to purchase a quitclaim, as he did of Equindito, rather than assert and litigate his own superior title. In contrast, the only demonstrated source of title out of Elbertson to the adjacent Mill Island is the Hudde and Gerritsen patent.
My conclusion is that if the grantors had been sedulous to exclude the broken lands from the bounds of the patent and by means of a southerly boundary consisting of an inland waterway, they would have so stated. I have no doubt that they had no intention of so circumscribing this, the first patent issued of land on Long Island, and that on the contrary they plainly showed by their description that the southerly boundary was the sea, a fact established by an overwhelming preponderance of the extrinsic proof.
Assuming that there was doubt or ambiguity, no satisfactory reason is shown why the confirmatory Nicolls patent of November 1, 1667, should not be taken to mean what it says, namely, that title is confirmed in Elbertsen of all the land included within the patent together with lands “ fflats, Pastures, Marshes ” and “ Creekes;” and in the light of the holding in Best Renting Co. v. City of New York ( 248 N. Y. 491 ), I am of opinion that this language should be accepted at its face value. Here, too, the description shows that the grant was measured by the kill “ coming out of the sea and so runs almost North into the Woodland * * (Italics mine.)
Finally, there is no so-called “ rule of repose ” with respect to land titles for the reason that there is no such thing as abandonment *210 of title predicated upon neglect of an estate. (Matter of City of N. Y. [Realty Associates], 256 N. Y. 217 .) Nor is it in accordance with the facts to assert that there has been acquiescence or recognition of exclusion of the broken lands from the scope of the patent for 250 or 300 years. In 1745, Wilhelmus Stoothoff conveyed a one-half part of “ the Common & undivided Lands, Meadows, flatts, bays, Marshes, beaches, Creeks * * * ” of which his father had died seized, by virtue of the patent. By will probated April 19, 1794, Jeromus Lott devised his interest in “ the undivided lands and meadows, beaches and marshes,” in the patent. In 1897 the Lott heirs conveyed an interest in the broken lands north of Barren Island to Henry M. Gescheidt and invoked the patent, and Gescheidt asserted the claim of these heirs to the broken lands by reason of the patent before the Attorney-General of the State in 1898.
In my opinion, the finding of the trial court that the broken lands were not included within the bounds of the patent should be reversed and as to those damage parcels hereinbefore enumerated the matter should be remitted to the trial court for the taking of proof and determination of the devolution of title and the making of awards in accordance therewith.
Final decrees in the Jamaica Bay Proceeding No. 1 and Jamaica Bay Proceeding No, 2 affirmed, with costs.
Final decree in the Addition to Marine Park Proceeding modified by increasing the amount of the award for the Metcalfe parcel (Damage Parcel No. 2) to the sum of $3,940, and, as thus modified the decree is affirmed, without costs.