Clarke, P. J.:
This is an action in partition. The property in question is partly upland and partly land under water. As to the upland there is no question. As to the land under water respondents claim under a grant from the State of New York dated March 10, 1917. The city of New York claims the said grant is invalid upon the ground that the State was not the owner of the land under water purported to be conveyed, but that the title thereto was vested in the city as the successor of the town of Westchester, to which it had been granted by the patent from Governor Nicolls dated February 15, 1667. Said patent contained this description:
“ All that Tract of Land togethr wth ye Severall Parcells not otherwise by Pattent disposed of wch already have or hereaftr shall be Purchased or Procured for & on ye behalf of ye said Towne whethr from ye Native Indian Proprietors or others within ye bounds & Lymitts hereaftr sett forth & Exprest (vizt) That is to say ye Westerne bounds of ye Lands lyeing wthin ye Lymitts of ye said Towne to begin at ye West par of ye Land comonly called Bronckx Land neare or adjoining unto Harlem By ver from whence they Extend Eastward to ye West parte of a Certaine Neck of Land comonly called Anne Hooks Neck or Mr Pells Purchase Southward they are bounded by ye Sound or East Ryver & so runne upon a Paralell lyne from ye East'& West lymitts North into ye woods without lymitation for Range of Cattle or other Improvemt Togethr wth all ye Lands Soyles Necks of Lands Ryvers Creeks Harbours Quarryes Woods Meadowes Pastures Marshes Waters Lakes fishing Hawking Hunting & fowling & all othr Profitts Comodityes Emolumts & Hereditamts to ye said Land & prmisses within ye said bounds & lymitts described & sett forth belonging or in any wise apperteyning.”
In 1686 Governor Dongan made his patent to the freeholders and inhabitants of the town of Westchester ratifying and confirming the prior patent, the description of the land conveyed being the same, except that it provided that the northern boundary of the property should be the southerly line of the patent of Oneal and the south and west lines of Thomas Pell. In 1695 Governor Fletcher ratified and confirmed the prior patents, and all these were ratified and confirmed by an act of the Legislature of the Colony of New York passed May 6, 1691,
It is clear that these patents granted to the town of Westchester all the rivers, bays and creeks north of the line of the sound. The city claims the lands under water here involved are under the waters either of Westchester creek or Pugsley’s creek — in either case they would be included in the patents to the town of Westchester. The respondents contend they are under the waters of the sound and, therefore, the State has the right to convey.
The configuration of the locus in quo is as follows: Cornell’s neck, ending at the south in Clason point, lies between the Bronx river and Pugsley’s creek. Old Ferrry point is bounded on the west by Westchester creek and projects from the main land approximately the same distance as Clason point. The distance between these two points as shown on plaintiff’s Exhibit 35 is 2,970 feet. There is then between these two points a bay or indentation.
Eighteen hundred and twenty feet north of the line measured between these points, and where the bay or indentation is 2,700 feet wide, is Castle point, bounded by Pugsley’s or Barret’s creek to the west and Westchester creek to the east, the waters of these two creeks joining to make the bay or indentation. The precise point to be determined is whether Castle point, bounded by these two creeks, is bounded to the south by the sound or East river, or whether the bay or indentation into which it projects is the confluence of said creeks which do not meet the sound until they reach the line between the headlands, that is to say, Clason point and Old Ferrry point, where deep water is found — the bay being extremely shallow, a narrow channel eight feet deep having been dredged therein for navigation. Where the line between the headlands is reached the soundings suddenly increase from 3 feet to 21 and 32 at low water. The particular land under water in controversy projects into this bay at a point 1,120 feet north from the outer end of Clason point and 700 feet south from Castle point. It is interesting to note that the grant from the State, upon which respondents rely, conveys “ all that certain piece or parcel of land under waters of Westchester Creek in front of and adjacent to upland of the grantee herein.” If the lands conveyed lie under the waters of Westchester creek then it seems clear that the State had no title thereto and the respondents took nothing by the grant. Their effort has been, in' repudiation of the plain language of the grant, to show that said lands were not under the waters of Westchester creek but were under the waters of the sound.
The use of the phrase u bounded by the Sound or East River ” [118]*118was not unusual in ancient grants and has been judicially determined in controversies between communities claiming under Colonial grants and individuals claiming under State grants.
In Lowndes v. Huntington (153 U. S. 1), the town brought an action of ejectment to recover lands under water in Huntington bay. The town relied upon the grant of Governor Nicolls dated November 30, 1666, and confirmatory grants by Governors Dongan and Fletcher. Huntington being on Long Island, the grant in the description was “ on the North to bee Bounded by the Sound runing betwixt Long Island and the Maine ” and granted “ as also all Havens Harbours Creekes * * * Marshes Waters Lakes.” The court said: “ It will be seen from these quotations that the boundary on the north, as given in the Nicolls charter, is the * sound running betwixt Long Island and the Maine/ and in the Fletcher, ‘ the Sound that Bunns between our sayd Isle of Nassaw and the maine Continent/ And the question is whether the tract in controversy is south of this north boundary line. * * * The tract in controversy marked ‘A’ on this map, is within the limits of what is named thereon ‘ Huntington Bay.’ The contention of the defendant is that that body of water is a part of the Sound, and that, therefore, the north boundary granted to the town of Huntington runs to the south of the tract in controversy. * * * The northern boundaries in all these charters is given as ‘ the Sound.’ That was then, and is now, a well known body of water. It opens into the Atlantic ocean, but is separate and distinct therefrom. Into it flow many rivers, and open many bays, harbors and inlets; but the fact of a connection between them and it does not make them a part of the Sound.” After referring to Rogers v. Jones (1 Wend. 237); Trustees of Brookhaven v. Strong (60 N. Y. 56, 57) and Robins v. Ackerly (91 id.
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Clarke, P. J.:
This is an action in partition. The property in question is partly upland and partly land under water. As to the upland there is no question. As to the land under water respondents claim under a grant from the State of New York dated March 10, 1917. The city of New York claims the said grant is invalid upon the ground that the State was not the owner of the land under water purported to be conveyed, but that the title thereto was vested in the city as the successor of the town of Westchester, to which it had been granted by the patent from Governor Nicolls dated February 15, 1667. Said patent contained this description:
“ All that Tract of Land togethr wth ye Severall Parcells not otherwise by Pattent disposed of wch already have or hereaftr shall be Purchased or Procured for & on ye behalf of ye said Towne whethr from ye Native Indian Proprietors or others within ye bounds & Lymitts hereaftr sett forth & Exprest (vizt) That is to say ye Westerne bounds of ye Lands lyeing wthin ye Lymitts of ye said Towne to begin at ye West par of ye Land comonly called Bronckx Land neare or adjoining unto Harlem By ver from whence they Extend Eastward to ye West parte of a Certaine Neck of Land comonly called Anne Hooks Neck or Mr Pells Purchase Southward they are bounded by ye Sound or East Ryver & so runne upon a Paralell lyne from ye East'& West lymitts North into ye woods without lymitation for Range of Cattle or other Improvemt Togethr wth all ye Lands Soyles Necks of Lands Ryvers Creeks Harbours Quarryes Woods Meadowes Pastures Marshes Waters Lakes fishing Hawking Hunting & fowling & all othr Profitts Comodityes Emolumts & Hereditamts to ye said Land & prmisses within ye said bounds & lymitts described & sett forth belonging or in any wise apperteyning.”
In 1686 Governor Dongan made his patent to the freeholders and inhabitants of the town of Westchester ratifying and confirming the prior patent, the description of the land conveyed being the same, except that it provided that the northern boundary of the property should be the southerly line of the patent of Oneal and the south and west lines of Thomas Pell. In 1695 Governor Fletcher ratified and confirmed the prior patents, and all these were ratified and confirmed by an act of the Legislature of the Colony of New York passed May 6, 1691,
It is clear that these patents granted to the town of Westchester all the rivers, bays and creeks north of the line of the sound. The city claims the lands under water here involved are under the waters either of Westchester creek or Pugsley’s creek — in either case they would be included in the patents to the town of Westchester. The respondents contend they are under the waters of the sound and, therefore, the State has the right to convey.
The configuration of the locus in quo is as follows: Cornell’s neck, ending at the south in Clason point, lies between the Bronx river and Pugsley’s creek. Old Ferrry point is bounded on the west by Westchester creek and projects from the main land approximately the same distance as Clason point. The distance between these two points as shown on plaintiff’s Exhibit 35 is 2,970 feet. There is then between these two points a bay or indentation.
Eighteen hundred and twenty feet north of the line measured between these points, and where the bay or indentation is 2,700 feet wide, is Castle point, bounded by Pugsley’s or Barret’s creek to the west and Westchester creek to the east, the waters of these two creeks joining to make the bay or indentation. The precise point to be determined is whether Castle point, bounded by these two creeks, is bounded to the south by the sound or East river, or whether the bay or indentation into which it projects is the confluence of said creeks which do not meet the sound until they reach the line between the headlands, that is to say, Clason point and Old Ferrry point, where deep water is found — the bay being extremely shallow, a narrow channel eight feet deep having been dredged therein for navigation. Where the line between the headlands is reached the soundings suddenly increase from 3 feet to 21 and 32 at low water. The particular land under water in controversy projects into this bay at a point 1,120 feet north from the outer end of Clason point and 700 feet south from Castle point. It is interesting to note that the grant from the State, upon which respondents rely, conveys “ all that certain piece or parcel of land under waters of Westchester Creek in front of and adjacent to upland of the grantee herein.” If the lands conveyed lie under the waters of Westchester creek then it seems clear that the State had no title thereto and the respondents took nothing by the grant. Their effort has been, in' repudiation of the plain language of the grant, to show that said lands were not under the waters of Westchester creek but were under the waters of the sound.
The use of the phrase u bounded by the Sound or East River ” [118]*118was not unusual in ancient grants and has been judicially determined in controversies between communities claiming under Colonial grants and individuals claiming under State grants.
In Lowndes v. Huntington (153 U. S. 1), the town brought an action of ejectment to recover lands under water in Huntington bay. The town relied upon the grant of Governor Nicolls dated November 30, 1666, and confirmatory grants by Governors Dongan and Fletcher. Huntington being on Long Island, the grant in the description was “ on the North to bee Bounded by the Sound runing betwixt Long Island and the Maine ” and granted “ as also all Havens Harbours Creekes * * * Marshes Waters Lakes.” The court said: “ It will be seen from these quotations that the boundary on the north, as given in the Nicolls charter, is the * sound running betwixt Long Island and the Maine/ and in the Fletcher, ‘ the Sound that Bunns between our sayd Isle of Nassaw and the maine Continent/ And the question is whether the tract in controversy is south of this north boundary line. * * * The tract in controversy marked ‘A’ on this map, is within the limits of what is named thereon ‘ Huntington Bay.’ The contention of the defendant is that that body of water is a part of the Sound, and that, therefore, the north boundary granted to the town of Huntington runs to the south of the tract in controversy. * * * The northern boundaries in all these charters is given as ‘ the Sound.’ That was then, and is now, a well known body of water. It opens into the Atlantic ocean, but is separate and distinct therefrom. Into it flow many rivers, and open many bays, harbors and inlets; but the fact of a connection between them and it does not make them a part of the Sound.” After referring to Rogers v. Jones (1 Wend. 237); Trustees of Brookhaven v. Strong (60 N. Y. 56, 57) and Robins v. Ackerly (91 id. 98) the opinion proceeds: “ Each of these three cases from the highest court of the State of New York treats that which is named as the boundary on the north or south, the Sound or the ocean, as referring directly to the body of water known by such name, and not as including waters opening into or connected with it.” In Tiffany v. Town of Oyster Bay (209 N. Y. 1), the controversy was between an owner of upland on the westerly shore of Cold Spring Harbor, who had received from the State a grant of lands under water, and the town of Oyster Bay which claimed ownership of all lands under water in Cold Spring Harbor acquired under the patent of Governor General Andros executed September 29, 1677. The court said: “ Cold Spring Harbor is not to be deemed a part of the sound within the meaning of the patent unless the term here is to be interpreted differently from the meaning given to it in other similar [119]*119grants. In the ancient colonial charters granting land on Long Island in which the sound is named as the boundary on the north, the term refers directly to the body of water known by such name and does not include waters opening into it or connected with it. (Quoting from Lowndes v. Huntington, supra) * * * The result of this discussion is the conclusion that the whole of the land under water in Cold Spring Harbor and the bay known as Oyster Bay was granted to the town of Oyster Bay by the Andros patent of 1677. It follows that the State" had no title to the property which it assumed to grant to Mr. Tiffany as owner of the adjacent upland.”
In Grace v. Town of North Hempstead (166 App. Div. 844; affd., 220 N. Y. 628) the court said: “ This is a proceeding to determine the title to the land beneath the waters of Manhasset bay, formerly called Cow bay, a narrow harbor on the north shore of Long Island. * * * It is a mile wide at the entrance, and runs inland upwards of three miles. * * * Plaintiff’s lands are along the westerly side of Manhasset bay, about a mile and a half from the sound. This action involves the title to about seven acres fronting on plaintiff’s upland, and out in the bay beyond the mean low-water line. Plaintiff relies on a State grant by the Commissioners of the Land Office, made June 24, 1912. Defendant, as successor to the original town of Hempstead, * * * claims to own the waters and bed of this bay by Colonial grants; first from the Dutch Governor Willem Kieft in 1644, and later from Col. Dongan, the English Colonial Governor, in 1685. * * * “ As both the boundary meridian lines run from the sound or East river to the Atlantic ocean, and this bay lies between such meridians, the remaining question is, what is the north boundary of this patent? Here again" the import is not doubtful. The sound or East river means the Long Island sound, and the course ‘ round the points of the necks till it comes to Hempstead Harbour,’ plainly means a boundary run around the outer points or headlands of Great neck and Cow neck, by which this bay is plainly comprised. All doubt is removed by the final words 1 and the Sound or East River to be the Northerly Bounds ’ (Tiffany v. Town of Oyster Bay, 209 N. Y 1, 7.) And clearly the patent carried title to the land under water within the bounds of the patent. (Roe v. Strong, 107 N. Y. 350, 358.) * * * Hence it must be held * * * that the State had not title to the property which it assumed to grant to this plaintiff.”
It seems to me that in the case at bar the land in controversy lies — as the grant from the State recites — under the waters of Westchester creek which is the larger of the two creeks, the [120]*120mouth of which must be held to lie between the two headlands, Clason point and Old Ferry point, where it empties into the sound. In the opinion of my brother Smith it is suggested that to draw the line of the sound from headland to headland would leave the sound with no shore line. But that proposition seems to be answered by the cases cited. Manhasset bay has an entrance a mile wide, Huntington harbor about two and one-half miles and Oyster bay and Hempstead harbor each have very wide mouths. The Connecticut and other rivers empty into the sound. Can they be said to do so till they pass their headlands? This little bight or indentation, the mouth of Westchester creek is but 2,970 feet wide and very shallow. I do not think it reasonable to hold that it is the sound.
I reach the conclusion that the land in controversy was granted to the town of Westchester and, therefore, the State had no title which it could convey. It follows, therefore, that the judgment in so far as it is appealed from should be reversed, with costs and judgment entered for the appellant with costs. Necessary findings to be submitted on settlement of the order.
Dowling and Greenbaum, JJ., concur; Smith and Page, JJ., dissent.
See 1 Colonial Laws of New York (Comp. Stat. Rev. Comm.), 224, chap. 2. — [Rep.