After several months’ deliberation, the justice expressed a doubt on one point raised by the corporation counsel, viz.: “ That the plaintiff’s complaint should be dismissed because that the plaintiff does not claim that he has any interest or estate in all the lands sought to be partitioned as joint tenant or tenant in common with all the defendants, nor have all of the defendants an interest or estate as joint tenants or tenants in common with him or with each other in all the said lands.”
And judge Ingraham ordered a reargument on that point.
Demlis McMahon, for the plaintiff; Abraham Underhill, for the Bolles heirs; Bichard O’Gorman and William J. Kane, for the city, and Jno. S. Lawrence, for the Lawrence heirs, were heard on that point.
After mature deliberation, the court delivered the following opinion:
Ingraham, J.—I
shall consider the rights of all the parties interested in, or claiming so to be, as settled by the referee in all respects, except where exceptions have been filed to the.report; and, as to them, will dispose of them as they are presented by each of the parties in their exceptions, but without examining each exception separately.
First. As to the exceptions taken by the counsel for the mayor, &c., of Hew York, these apply generally to the rights of the plaintiff to maintain his action. First, because the title to the property sought to be partitioned is in the city, and because the deed by the commissioners of the land office is void; therefore this objection is based on the supposed [366]*366right of the city, from the provisions of the Dongan- and Montgomery charters, which granted to the mayor, &c., all the waste, vacant, unpatented and unappropriated land lying and being within the city of New York, and reaching to the low water mark in, by and through all parts of said city and Manhattan Island aforesaid, together with all rivers, rivulets, coves, creeks, ponds, waters and water-courses in the said city or island, or either of them, not heretofore granted, &c.
The Montgomery charter describes the jurisdiction of the city as extending to low water mark on Long Island shore, and. including the island between Long Island and Manhattan Island, and extending from Spuyten Duyvil creek, along the low water line on the east of Westchester side of the Harlem river to the East river, and thence to cross to Long Island and along the( low water line on that shore to Red Hook, including all the islands, &c.
There can be no doubt but that, in this jurisdiction, the island in controversy was included; and the question raised by the counsel of the corporation is as to the extent of the grant made to the city in that charter of all the waste, vacant, unappropriated and unpatented land, lying and being within the said city of New York, and on Manhattan Island aforesaid, extending to low waten mark.
The counsel for the city claims that this grant carries the land under water owned by the island referred to. I think not.
It is evident, from the other provisions of the charter, that such was not the intent of the grant. It was confined to what then was called the city, and w as extended to the land under water around Manhattan Island.
If the views of the counsel for the corporation are correct, the other provisions of the charter would have conveyed to the corporation the river from Spuyten Duyvil creek to the East river, and that river to Red Hook, because, among other things named in the grant, are included all rivers.
The proper construction of the grant is to confine it to the city, and to Manhattan Island.
[367]*367The distinction I have taken between the jurisdiction of the city for the purpose of government and as to the rights of property under the grant is sanctioned by judge Hoitmah", in his work entitled “A Treatise on the Estate, &c., of the Corporation” (p. 165), where he speaks of the distinction as to the boundaries of ¡New York on a point of jurisdiction, and one on the right of property.
Another objection is that the plaintiff shows no title in him to the lands to be partitioned.
The grant from the state is ample to vest in the grantees a title to the land conveyed if they are competent to take such a title.
It is objected that they were not at the time owners of the upland. They were not owners of the whole of the upland jointly; but they were at the time owners of all the upland, excepting that one Marsh owned some lots conveyed previously. As to the other owners, I see no reason why, if they so elected, they might not have taken a joint grant of all the land under water adjoining the lands held by them in severalty.
They were the owners of the upland; they might have conveyed their interest to any one of their number, or they might, as they have done here, unite in taking a joint conveyance, and held the same jointly.
It may admit of some question whether the intermediate conveyances, after the patent from the State was obtained, conveyed the land under water by the term water rights and water privileges, of, in or pertaining to the island.
■ The cases cited by the defendants do not apply to this case.
In Nostrand agt. Duiland (21 Barb., 478) the conveyance was merely of a stream and pond of water and saw-mill.
So in Jackson agt. Hulsted (5 Cow., 461) it was held that a lease of certain premises, including a river, did not pass title to the land under the river.
On the other hand, there are cases where the description [368]*368in the deed of a pool, a gorge or a deep pit of water is held sufficient to carry the land.
I ana of the opinion, that the words here used, water rights and water privileges, with the terms hereditaments and appurtenances, are sufficient to include the land under water.
There are no water rights except under the patent, and no water privileges except by filling to change the land under water to upland. Unless this interpretation is given to this description the words would be meaningless.
Another objection is that this property is held adversely by the city, and therefore cannot be partitioned. If there was any proof to show adverse possession by the city authorities, the objection would be a good one; but there is no such evidence. All the possession shown on behalf of the city is the building of a dock for their convenience into the river.
■Whether such dock extends beyond low water mark or not does not appear. If it does it becomes a purprestrue or nuisance, which might be removed at any time as such. So far as the city occupied the land under water between high and low water mark a claim of title, it should be excluded from any decree of sale or partition in this action.
The title between the claimants and the city must be settled by a direct action for the possession. Such possession cannot, however, be extended in such a case as this beyond the land actually occupied. The building of a wharf can never constitute an adverse possession around the island to all the land between high and low water mark. It does not come within any of the rules laid down in 2 R. S., 4th ed., 495, defining what occupancy is necessary to establish adverse possession.
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After several months’ deliberation, the justice expressed a doubt on one point raised by the corporation counsel, viz.: “ That the plaintiff’s complaint should be dismissed because that the plaintiff does not claim that he has any interest or estate in all the lands sought to be partitioned as joint tenant or tenant in common with all the defendants, nor have all of the defendants an interest or estate as joint tenants or tenants in common with him or with each other in all the said lands.”
And judge Ingraham ordered a reargument on that point.
Demlis McMahon, for the plaintiff; Abraham Underhill, for the Bolles heirs; Bichard O’Gorman and William J. Kane, for the city, and Jno. S. Lawrence, for the Lawrence heirs, were heard on that point.
After mature deliberation, the court delivered the following opinion:
Ingraham, J.—I
shall consider the rights of all the parties interested in, or claiming so to be, as settled by the referee in all respects, except where exceptions have been filed to the.report; and, as to them, will dispose of them as they are presented by each of the parties in their exceptions, but without examining each exception separately.
First. As to the exceptions taken by the counsel for the mayor, &c., of Hew York, these apply generally to the rights of the plaintiff to maintain his action. First, because the title to the property sought to be partitioned is in the city, and because the deed by the commissioners of the land office is void; therefore this objection is based on the supposed [366]*366right of the city, from the provisions of the Dongan- and Montgomery charters, which granted to the mayor, &c., all the waste, vacant, unpatented and unappropriated land lying and being within the city of New York, and reaching to the low water mark in, by and through all parts of said city and Manhattan Island aforesaid, together with all rivers, rivulets, coves, creeks, ponds, waters and water-courses in the said city or island, or either of them, not heretofore granted, &c.
The Montgomery charter describes the jurisdiction of the city as extending to low water mark on Long Island shore, and. including the island between Long Island and Manhattan Island, and extending from Spuyten Duyvil creek, along the low water line on the east of Westchester side of the Harlem river to the East river, and thence to cross to Long Island and along the( low water line on that shore to Red Hook, including all the islands, &c.
There can be no doubt but that, in this jurisdiction, the island in controversy was included; and the question raised by the counsel of the corporation is as to the extent of the grant made to the city in that charter of all the waste, vacant, unappropriated and unpatented land, lying and being within the said city of New York, and on Manhattan Island aforesaid, extending to low waten mark.
The counsel for the city claims that this grant carries the land under water owned by the island referred to. I think not.
It is evident, from the other provisions of the charter, that such was not the intent of the grant. It was confined to what then was called the city, and w as extended to the land under water around Manhattan Island.
If the views of the counsel for the corporation are correct, the other provisions of the charter would have conveyed to the corporation the river from Spuyten Duyvil creek to the East river, and that river to Red Hook, because, among other things named in the grant, are included all rivers.
The proper construction of the grant is to confine it to the city, and to Manhattan Island.
[367]*367The distinction I have taken between the jurisdiction of the city for the purpose of government and as to the rights of property under the grant is sanctioned by judge Hoitmah", in his work entitled “A Treatise on the Estate, &c., of the Corporation” (p. 165), where he speaks of the distinction as to the boundaries of ¡New York on a point of jurisdiction, and one on the right of property.
Another objection is that the plaintiff shows no title in him to the lands to be partitioned.
The grant from the state is ample to vest in the grantees a title to the land conveyed if they are competent to take such a title.
It is objected that they were not at the time owners of the upland. They were not owners of the whole of the upland jointly; but they were at the time owners of all the upland, excepting that one Marsh owned some lots conveyed previously. As to the other owners, I see no reason why, if they so elected, they might not have taken a joint grant of all the land under water adjoining the lands held by them in severalty.
They were the owners of the upland; they might have conveyed their interest to any one of their number, or they might, as they have done here, unite in taking a joint conveyance, and held the same jointly.
It may admit of some question whether the intermediate conveyances, after the patent from the State was obtained, conveyed the land under water by the term water rights and water privileges, of, in or pertaining to the island.
■ The cases cited by the defendants do not apply to this case.
In Nostrand agt. Duiland (21 Barb., 478) the conveyance was merely of a stream and pond of water and saw-mill.
So in Jackson agt. Hulsted (5 Cow., 461) it was held that a lease of certain premises, including a river, did not pass title to the land under the river.
On the other hand, there are cases where the description [368]*368in the deed of a pool, a gorge or a deep pit of water is held sufficient to carry the land.
I ana of the opinion, that the words here used, water rights and water privileges, with the terms hereditaments and appurtenances, are sufficient to include the land under water.
There are no water rights except under the patent, and no water privileges except by filling to change the land under water to upland. Unless this interpretation is given to this description the words would be meaningless.
Another objection is that this property is held adversely by the city, and therefore cannot be partitioned. If there was any proof to show adverse possession by the city authorities, the objection would be a good one; but there is no such evidence. All the possession shown on behalf of the city is the building of a dock for their convenience into the river.
■Whether such dock extends beyond low water mark or not does not appear. If it does it becomes a purprestrue or nuisance, which might be removed at any time as such. So far as the city occupied the land under water between high and low water mark a claim of title, it should be excluded from any decree of sale or partition in this action.
The title between the claimants and the city must be settled by a direct action for the possession. Such possession cannot, however, be extended in such a case as this beyond the land actually occupied. The building of a wharf can never constitute an adverse possession around the island to all the land between high and low water mark. It does not come within any of the rules laid down in 2 R. S., 4th ed., 495, defining what occupancy is necessary to establish adverse possession.
That such possession of a part of tract is not sufficient to cover the whole tract is held in The People agt. Livingston (8 Barb., 255); Sharp agt. Brandon (15 Wend., 597); Munro agt. Merchant (26 Wend., 387, 404).
It is contended also on' the part of the mayor, &c., that the parties to the action are not tenants in common of all the pro[369]*369perty sought to he partitioned, and that the action, therefore, cannot be maintained.
This objection is taken also by some of the other defendants.
This objection is not free from difficulty. So far as it .relates to the conveyance by Ward before the plaintiff became the owner of any interest in the water right or lands under water, there can be no doubt that the action cannot be maintained.
The plaintiff has no right calling for the exercise of the power of the court to order a sale of the property. It never could be sustained to grant a judgment to sell property in which the plaintiff had no interest on his application, nor could a plaintiff under such circumstances compel an owner of property to submit to the sale of his property at the suit of a person who had no right thereto.
It is clear that a stranger could do no such thing if he brought such an action simply for the partition of lots so situated, and I think it equally clear that he can obtain no such right by connecting with those lands others in which he has an interest. ■
So far as this action relates to these parcels, the complaint must be treated as dismissed.
The other objection is that the same parties are not joint owners or tenants in common of all the property sought to be partitioned.
By 2 B. S., p. 242, the right to proceed by petition is given where several persons'hold any lands, &c., 'as joint tenants or tenants in common; and by section 81, p. 253, the same power, either by petition or bill, is given to the court of chancery. That power now being vested in this court, these provisions apply to proceedings in this court whether by petition or action.
In Haas agt. Dorland (11 How. Pr. R., 489) it was held that where was an outstanding life estate, a partition could not be had on the application of one who had an interest in. ■ the fee.
[370]*370The same principle was decided in Brownell agt. Brownell (19 Wend., 367).
In Clapp agt. Bromaghim (9 Cowen, 531, 565) it was held that the parties to the partition must hold the estate in common ; and that a plea of non-tenant in servial was a good plea.
In Jackson agt. Myers (14 John., 354) it was held that all the parties must be tenants in common of the lands to be partitioned. Chancellor Jones, in Clapp agt. Bromaghim (supra), says: “ The estate to be divided must be held by the parties to the partition in common, and the general defense against the petition for a division is that the petitioners and the defendants do not hold together.”
This was the substance of the demand, and of the general defense in the writ of partition. I think there can be no doubt but that if the defendants had raised the objection to this-complaint by demurrer or answer that all the defendants were not interested in the property sought to be partitioned that such defense would have been a good one, and the complaint would have been dismissed.
Hot having done so in any case, it seems to be the rule that they .cannot take the objection on the hearing. This is stated by Story in Equity Jurisprudence, § 656, where he says courts of equity will have regard to the legal and -equitable rights of all other parties interested in the estate which have been derived from any of the tenants in common, and will, if necessary, direct as distinct partition of each of several portions of the estate in which the derivative alienees, have a distinct interest in order to protect that interest. He refers to the case of Story agt. Johnson (1 Young & Coll., 538; 2 Young & Coll., 586); where two estates were partitioned among different parties; the difference being occasioned by a conveyance of an interest in one of the estates to another party by one of the original tenants in common.
The defendants not having taken this objection by demurrer or answer must be deemed to have waived the same, and cannot .now raise it on the hearing.
[371]*371The objection to a partition of the roads is well taken. Those roads, in many instances, are subject to a right of way over them for such of the owners of lots fronting thereon, who have no other means of access to their lots.
In some cases, also, the owner of the lot claims to the center of the road adversely to the claim of the plaintiff.
For these reasons I am of the opinion the action cannot be maintained as to these roads.
The interests of the several parties in the different portions of the land have been set out in the referee’s report, and are not objected to as there stated, except in a few instances which are admitted by the plaintiff’s counsel. Those errors must be corrected in the judgment; and in other respects the report is confirmed as to such interests| in the land under water and below high water mark around the island, excepting those .portions in front of the termination of the roads, and the pieces claimed to be held adversely to which I have before referred.
The remaining question is as to the propriety of a sale of this land. Many of the owners ask for a partition; and, as to those owning large portions, I see no reason why such partition should not be. made.
The statute provides that a partition in part can be made and a sale • ordered of such portions as cannot be properly partitioned. Such, I think, should be the provisions of a judgment in this case.
1. My conclusions are that the pieces of land owned by some of the defendants in which the plaintiff has no interest, and such pieces of the land between high and low water as are held adversely for wharves, and the roads with the land below high water in front of the termination of such roads, must be excluded from this partition; and the defendants who are interested therein, and have no interest in any other portion of the lands sought to be partitioned, may have the complaint dismissed as to them with costs.
2. That commissioners shall be appointed to’ make parti[372]*372tion as far as may be done among the several owners, or to such of them as so consent in writing their shares in common.
3. That such portions as cannot be so partitioned without detriment to the value thereof, to be ascertained by the report of the commissioners, be sold and apportioned to the defendants whose shares are not set off to them as before provided.