Kelly, J.:
This is an action in partition commenced on September 29, 1916, the complaint alleging that the plaintiff Harway Improve[176] ment Company and the defendant Hugh R. Partridge are seized in fee as tenants in common of certain property abutting on Gravesend bay and Coney Island creek or the Gravesend ship canal, plaintiff alleging that it owns three-fourths of the premises and that defendant Partridge owns-the remaining one-fourth part. Plaintiff alleges that the defendant The City of New York claims some interest in the premises the nature and extent of which are unknown to plaintiff, whereas it is alleged that defendant Partridge is the only defendant having any right, title or interest whatsoever. Plaintiff asks judgment that the city of New York has no right, title or interest in the premises and for partition between plaintiff and defendant Partridge. Partridge appeared in the action but served no answer. It is very evident that there is no contest between the plaintiff and Partridge who obtained his one-fourth interest by deed from the plaintiff on September 27, 1916, two days before the action was commenced. Apparently the object of the action is to obtain a decree that the city of New York has no interest in the premises.
The defendant City of New York answered denying that plaintiff and defendant Partridge were the owners of the property and alleging that the former town of Gravesend was seized in fee simple and was in possession of the property described in the complaint under and by virtue of certain instruments, letters patent and conveyances from the governors of the former Dutch colony of New Amsterdam and of the English colony or province of New York; that the town never parted with the title and possession of the premises; that pursuant to chapter 449 of the Laws of 1894 the city of Brooklyn succeeded to the ownership of the town, and that by virtue of chapter 378 of the Laws of 1897 the defendant The City of New York became seized and in possession of the property as the successor of the city of Brooklyn and has ever since remained seized and in possession thereof in fee simple.
The learned trial justice found that the premises. described in the complaint consisted of land formerly upland and land under water in Gravesend bay. He decreed that the plaintiff and defendant Partridge were the owners of the upland in the properties alleged in the complaint; that this upland extended to high-water line on Gravesend bay as such high-water line existed in 1894; that the land below such high-water mark was owned by the defendant The City of New York. The predecessors in title of the plaintiff, Hártense and others, having in 1896 obtained a grant of the. land under water from the Commissioners of the Land Office, for which they paid to the State the sum of $5,036.96, the (rial court found as matter of law that the letters patent granted [177] by the Commissioners of the Land Office were ineffectual to convey any title to the grantees named therein and that they were void and of no effect. He decided that neither the plaintiff nor defendant Partridge had title to any of the lands outshore of the high-water mark of Gravesend bay.
It appeared from the evidence that in the years 1908 and 1909 the plaintiff' built a bulkhead around the tract of land under water described in the letters patent and filled it in. The tract of land thus filled in included sixty-nine and seventeen one-hundredths acres of land under water fronting the comparatively small piece of upland and marsh land owned by the plaintiff, and extended out into Gravesend bay some 2,000 feet beyond the high-water line. It appears that prior to the application in 1896 made by plaintiff’s predecessors in title to the Commissioners of the Land Office for a grant of land under water, the then owners of the upland made a similar application to the trustees of the common lands of the town of Gravesend, but this application was withdrawn or no action taken thereunder. The plaintiff on January 4, 1908, applied to Commissioner Bensel, of the department of docks and ferries of the city of New York, for permission to fill in the considerable tract of land under water described in the letters patent from the State, and that official by a letter directed to plaintiff, dated January 28, 1908, assumed to grant to plaintiff permission “ to build a temporary sheet pile bulkhead and to fill in in rear of same over the area between Bay 49th street and the Gravesend Ship Canal, in the Borough of Brooklyn, extending from the present line of solid filling to the bulkhead line as modified by the Secretary of War on January 29, 1907. The work is to be done in accordance with the plans submitted by you and under the direction and supervision of the Engineer in Chief of this Department. It is understood and agreed and is a condition of this permit that by the granting thereof the City does not waive any rights which it may have or claim to have in and to the premises in question.” Of course Commissioner Bensel, of the department of docks and ferries, had no power to grant away any of the city’s water front or to assent to any appropriation of the water front by private individuals or corporations. It is provided in the Greater New York charter (Laws of 1901, chap. 466, § 71): “ The rights of the city in and to its water front, ferries, wharf property, land under water, public landings, wharves, docks, streets, avenues, parks, and all other public places are hereby declared to be inalienable.”
Under this assumed grant from the Commissioners of the Land Office, the plaintiff has completely changed the physical qonditiong [178] at this important point, making some seventy acres of solid land between the original upland and the bay. Plaintiff offered evidence that the cost of the bulkhead and filling was $66,955, and the court so found; also that since such bulkhead construction and filling in the plaintiff and Partridge have been in possession of the filled-in land and that they paid taxes to the city on such land. The receipt of taxes created no estoppel against the city’s right to demand possession of its property. (Consolidated Ice Co. v. Mayor, 166 N. Y. 92, 101.)
The learned trial justice found that the city of New York has not acquired the riparian rights of the upland owners; that such riparian rights weie not lost by the construction of the bulkhead and fill referred to; that plaintiff and defendant Partridge as upland owners were the owners of all the riparian rights appurtenant to the upland including the right to build piers from the upland into the bay, and the right of access and egress to and from the upland for commerce or business transacted thereon. He decided that the title of the town of Gravesend and of the city as its successor, to the land under water in the bay, was subject to this right of access and egress in the upland owner, and that “ The plaintiff, and the defendant Partridge, are entitled to remove the bulkhead and fill, and to restore the premises to the condition they were in at the time the bulkhead and fill were made, and are entitled to a reasonable time to do this.” And in decreeing ownership of the land under water in the city of New York in the interlocutory judgment it is adjudged that such ownership is “ Subject to the rights of the public and to the public and private rights of the plaintiff and the defendant Hugh R. Partridge as owners of the upland immediately adjoining and adjacent to the above described land under water.”
The learned trial justice found that beginning in 1911 and continuing down to the date of the trial, the commissioner of docks of the city of New York in each year issued permits to various persons for the temporary location of tents and bungalows “ upon that portion of the upland described in the complaint lying to the west of Harway Avenue, and charged and collected for and on behalf of the City of New York various sums of money for such permits.” The interlocutory judgment decrees that plaintiff and Partridge are entitled in this action to an accounting from the city of all moneys received for or on account of such'permits, and to recover such money with interest, and the referee appointed to sell the upland partitioned is directed to take such account, and to report the amount so received by the city to the court and that plaintiff and Partridge may have judgment therefor against the [179] city. The location of these structures, tents or bungalows is shown on a map in evidence. Most of the structures are below the line of high water in 1894 as found by the court, which would place them on the filled-in ground. Some of them are intersected by said high-water line and there are seven of them on the original upland above the high-water line. The exact location of these structures is of some importance, because as to structures erected under permit from the city on land outside the high-water mark of 1894, land owned by the city as found by the judgment, I can see no authority for requiring the city to account for rentals received. There is no evidence that the bungalows outside the high-water line interfere with the easements of access or egress adjudged to belong to the plaintiff and Partridge. As to any structure above high-water line a different rule would apply.
The plaintiff on January 6, 1921, appealed from the interlocutory judgment and from that part of said judgment which decreed that the city of New York was the owner of the filled-in land outside of the high-water line of 1894 subject to the rights of plaintiff and Partridge as upland owners, and the city of New York on January 11, 1921, served a notice of appeal “ from the interlocutory judgment herein, dated the 3d day of December, 1920, and entered and filed in the office of the Clerk of the County of Kings on or about the 9th day of December, 1920, whereby it is among other things, ordered, adjudged and decreed that the matter be referred to Patrick E. Callahan, Esq., of Brooklyn, as Referee, to take and state an account upon such proof as may be offered by any of the parties to this action.”
The learned counsel for the city upon the argument and in his points attacks the findings of the court and the judgment so far as they decree that the plaintiff and Partridge are the owners of the original upland. The plaintiff suggests that in its notice of appeal “ The City apparently appeals only from that part of the judgment which orders a reference to take an account of the rents collected by the City from bungalow licensees, but the notice of appeal is not clear, and wider scope may be claimed for it,” and asserts that on the trial the city did not contest the plaintiff’s title to the upland. The corporation counsel contends that the notice of appeal is sufficient to enable him to attack the finding of plaintiff’s title to the upland and refers to the findings of the trial justice bearing upon plaintiff’s ownership, to which the defendant city duly filed exception, and he insists that he may here question plaintiff’s title to the upland.
Let us now examine the questions before us on this appeal.
The plaintiff, appellant, contends that the finding of the trial [180] judge that the city has title to the land under water, below high-water mark, is erroneous. That the findings that title to the land under water in front of the upland at this point was in the city as successor to the town of Gravesend, and that the letters patent for said land under water issued to plaintiff’s predecessors in title were void, are contrary to the evidence and contrary to law. Plaintiff claims that this particular part of Gravesend bay was not included in the colonial patents to the town of Gravesend, and asserts that the upland at this point was not in the town of Gravesend, but in the town of New Utrecht.
The controversy arises from plaintiff’s contention respecting the location of the westerly line of the town of Gravesend in the Lovelace patent of 1670, which the plaintiff attacks as “ unrecorded,” and in the Dongan patent of 1686, which concededly was recorded and which refers to and confirms the preceding Lovelace patent. In the Lovelace patent this line is described as a “ lyne stretching from the westermost parte of the said Island unto the Southermost parte of Anthony Iansens old Bowerye;” and “ beginning at the mouth of a Creek adjacent to Coney Island and being bounded on the westermost parte thereof wth the Land heretofore apperteyning to Anthony Iohnson and Robert Pennoyer.” In the Dongan patent this westerly line is described as “ beginning at the Westermost Parte of a Certaine Place Called Cunie Island and from thence bounded to the Westermost Parte of Anthony Johnson and Robert Pennoyer.” Whether this westerly line ran from Coney Island to the “ Southermost parte of Anthony Iansens old Bowerye ” or to the “ Westermost Parte of Anthony Johnson and Robert Pennoyer,” it is the contention of the city that the line ran in a northerly or northeasterly direction across Gravesend bay. The location of the two lines is shown on a map made by Lefford and Strong in 1788, also on the Terhune map of 1797 prepared pursuant to a concurrent resolution of the Senate and Assembly passed February 18, 1786, and chapter 56 of the Laws of 1800, both maps appearing in the record. Taking either line in these ancient patents and maps as the westerly boundary of the town of Gravesend it will be noted that the premises described in the complaint, both upland and land under water, are to the south and east of the line and so within the limits of the grant.
The plaintiff’s contention is that this line did not run northerly or northeasterly across the bay as claimed by the defendant City of New York and as shown upon these ancient maps, but that it ran from the westerly end of Coney Island, practically east or a little north of east so that it took in the mouth of Coney Island creek and the creek itself and asserts that the point on Jansen’s [181] land which it finally reached was the southerly point of a “ neck,” “ outpoint ” or sandy spit of land which stretched south or southeasterly from Jansen’s farm. Plaintiff claims that this was the “ Southermost parte of Anthony Iansens old Bowerye ” referred to in the Lovelace patent of 1670. But the “ old Bowerye ” was granted to Anthony Jansen by the Dutch Colonial Governor Kieft in 1643 by a patent describing the farm by metes and bounds which also contained a grant of a parcel of land known as the “ Twelve Morgens.” This patent did not convey any land under water in the bay. The “ neck ” or “ outpoint ” is not included in the metes and bounds of the “ Old Bowerye ” as described in the patent unless it can be said to be covered by the reference to “ certain outpoints lying on the South side.” In the later instruments in plaintiff’s chain of title the distinction between the “ Old Bowerye ” proper and the “ neck ” or “ outpoint ” is preserved. Possession and ownership of this sandy neck or spit was the source of continual disputes between the inhabitants of Gravesend and Jansen and his successors. The people of Gravesend appear to have disputed Jansen’s title to the neck and the title of Browne, his successor in interest. Jansen conveyed to Stillwell in 1660 and Stillwell to Browne in 1664, by deeds in evidence, the imperfect descriptions in which at this early date do not assist us very much. The dispute related solely to the title to the land. It had nothing to do with the bounds of the town of Gravesend. Neither Jansen nor Browne, his successor in title, asserted any ownership of land under water. It appears that the dispute was finally referred to Governor Lovelace who in 1669 appears to have decided “ that the Meadow or valley in Controversy appertaines to neither of the pretenders being formerly esteemed as drowned and waste land though since for their owne Conueniency both have stroue to make use of it. The premises however having beene duely considered, it is thought fitting to qualify both partyes and the Governr and Councill doe order and declare that there shall bee assigned and made over unto Gravesend two third part of the meadow or valley in dispute to bee and belong to their Towne for ever. Provided that the said Towne doe with • . dayes after the date hereof make their applicagon to the Gouernr for the renovagon of their Patent according to the Lawes establisht in this Gcvernm1 they haveing elapsed their interest by their old patent and the resignagon of the new. The other third part of the Meadow or valley Shall be and remaine to the use and behoofe of Francis Browne his heirs and Assignes but not as of Right belonging to him onely as of grace and favr from the Governor.” (N. Y. Col. Docs. vol. 14, pp. 622, 623.) This was followed by a formal [182] judgment of Governor Lovelace dated August 23, 1669 (Id. p. 626), in which it is stated: “ And as to ye Neck of Land Endorsed upon y6 old Pattent of the said Francis Browne & also claymed by ye said Inhabitants of Orauesend as aforesaid I doe thinke fitt since it hath hitherto, or most usually beene injoyed in Comon betweene y6 Towne & that Farme that it Continue so still.” It was provided that either the town or Browne might appeal to the next Court of Assizes “ where ye Law is open for them.” And accordingly we find in the record a judgment dated November 3, 1669, of the “ Court of Assizes of L. I. Land Titles ” in the case of “ The Inhabits’! of Gravesend Pl’ts The Inhabitants at the Turls plantacon als Francis Browne Def’ts ” (State Historian’s Report, 1896, vol. I, Colonial Series, pp. 356, 358; N. Y. Col. Docs. vol. 14, p. 629), from which it appears that a jury decided the dispute as to the title in favor of Browne, but upon “ appeale to y6 Bench ” the verdict of the jury was set aside, the court holding “ In regard ye merritts of y6 whole matter have been heard and examyned into both by ye Late & prsent Governor who have made severall ordr thereupon wch appeare very equitable & favourable to both partyes, That what hath beene ordered as to y6 division of eithr meadowe ground or other Land betweene y6 Pits & Def* by ye late or prsent Governour do stand good.” On June 29, 1670, an agreement was entered into between Browne and “Ye inhabitans of Gravesend ” in the effort to adjust these differences. (Gravesend Town Records, book 3, p. 83.) This agreement was evidently intended to determine the ownership of the neck of land. Apparently there was no dispute that the neck itself was in the town of Gravesend, because no other town is a party to the agreement. Far from declaring to the contrary, this ancient document reserved to the inhabitants of the town a right of way across the neck to reach the waters of the bay. The agreement, it seems to me, is inconsistent with plaintiff’s claim that this neck was part of the town of New Utrecht, a claim which was unheard of until advanced in this litigation. That the neck was assessed in New Utrecht on the assessment rolls of 1675 and 1683 was undoubtedly due to the fact that Jansen’s “ Old Bowerye ” on which he resided was in the town of New Utrecht, and the assessment of this sandy strip was in the town of the owner’s residence under the laws then in force. The agreement of 1670 between Browne and the inhabitants of Gravesend distinguishes between the “ Bowerye ” and the neck of land and meadow land. The neck of land is given to Browne, reserving to the inhabitants of Gravesend “ ffree Egress and regress over ye sd Neck of land and along by ye Waterside or Strannt on the west; with ye Libertie of fishing and fowling or any other Needful Occasion; With[183] out any Mollestation by the sd ffrancis browne or any Else by his meanes.” With this agreement of June 29, 1670, between Browne and the inhabitants of Gravesend before him and with his personal knowledge of the locus in quo Governor Lovelace on July 1, 1670, granted the patent to the town of Gravesend in which the westerly line of the town is described as a “ lyne stretching from the westermost parte of the said Island [f. e., Coney Island] unto the Southermost parte of Anthony Iansens old Bowerye.” Mr. Justice Crane, now of the Court of Appeals, then a justice of the Supreme Court, said at Special Term in Somerville v. City of New York (78 Misc. Rep. 203, 207): “ After twenty-five years of dispute and litigation the town of Gravesend on July 1, 1670, the year in which it made its settlement with Brown, received from Governor Lovelace a grant not only confirmatory of all that had gone before, but also extending this line of western boundary with such definiteness as to preclude further questionings and, in my judgment, to give the town title to the land under water in Gravesend bay between a line running in a northeasterly direction from the westerly point of Coney Island to the southernmost part of Anthony Jansen’s land. * * * If there was any doubt as to where the creek adjoining Coney Island was there could be no doubt as to the westernmost part of Coney Island; neither was there any uncertainty as to the southernmost part of Jansen’s farm and the line stretching between these two definite points. It must have been intended to be a straight line and not one following the curve of the shore. A line given in a deed as running from one monument to another is, in the absence of further description, presumed to be a straight line. Kingsland v. Chittenden, 6 Lans. 15. Not only the previous difficulty which the town had had in attempting to fix its western boundary, but also the plain language of this grant would show an intent to include the water and the land under water between this straight line thus drawn between these two points and the shore line to the east. The map of 1788 proved in litigation between Albert Voorhis and Albert Terhune shows very clearly how this line was drawn and the westerly boundary of the town as it then existed.” This “ neck ” or “ point ” and its relation to the main farm is shown very clearly on the Lefford and Strong map of 1788 and on the Terhune map of 1797.
Having in mind the decision of this court in Nevins v. Friedauer (198 App. Div. 250) where we approved Mr. Justice Crane’s decision at Special Term in Somerville v. City of New York (78 Misc. Rep. 203) that the title to the land under water in Gravesend bay is vested in the city of New York under the ancient patents, the learned counsel for the plaintiff says that the land under water [184] involved in the Nevins and Somerville cases was undoubtedly south of the boundary line which he now contends for, and so was within the town of Gravesend.
It is stated in the plaintiff’s points on appeal: “ The first claim in modern times under the unrecorded, unregistered Lovelace document was made by the city in 1912 at the trial of the Somerville case before Mr. Justice Crane.”
On the contrary, in 1912 Mr. Justice Crane said in Somerville v. City of New York (supra): “It will thus be seen that from 1686 until the merger with the city of Brooklyn the town of Gravesend claimed property rights in Gravesend bay and exercised ownership over portions of it.” And it was said by another justice in 1915 in another case involving the title to lands under water (Somerville v. City of New York, 89 Misc. Rep. 188, 190): “ and, indeed, I never knew that the town’s title to the land under water in Sheepshead Bay and Gravesend Bay was questioned until this litigation with the present plaintiff and his brother Mr. Edward Somerville, in the litigation before Mr. Justice Crane.”
This narrow spit of land certainly has a unique' history as a subject of dispute and litigation in this State. We have the original controversy between Browne and the inhabitants of Graves-end in 1670. One hundred and thirty-six years thereafter we find it still in the courts. Emans v. Turnbull (2 Johns. 313) was an action for trespass for assaulting the plaintiff, tried at the Kings County Circuit in April, 1806, involving the history of the title to this neck of land. The claim of the defendant Turnbull was sustained, and the judgment was confirmed by Chief Justice Kent. It is interesting to note in the report of this ancient case (at p. 316): “ It was admitted that the neck was not within the boundaries of the patent to Anthony Jansen, or the patent to Francis Brown, but was within the limits of the patents for Gravesend. * * * From the parol evidence, it appeared that the neck was a strip of poor, sandy ground, uncultivated, but producing wild grass, and capable of maintaining cattle.”
I am free to say that the “ line ” from the west point of Coney Island running parallel to the north shore of the island and excluding all of Gravesend bay from the old patents to the town of Gravesend is presented for the first time in the case at bar. It has never been laid down on any map public or private brought to our attention, and is a radical and somewhat startling change of the boundary of the town of Gravesend, which is one of the oldest towns in the State.
If Governor Lovelace did not intend to run this westerly line to the southern point of the “ Bowerye ” proper to the point [185] which has been recognized as the boundary line between the towns of Gravesend and New Utrecht for more than a century, why did he use this language? Everything else which plaintiff concedes to have been within the town of Gravesend has already been described. It is apparent that if he had meant to draw a line from Coney Island point to the southerly end of the narrow “ neck ” or “ outpoint,” instead of running the line to “ the southermost parte of Anthony Iansens old Bowerye,” he would have used the words “ at the mouth of a creek adjacent to Coney Island,” because at the beginning of the patent he had used these words in describing this .identical point. How can it be contended that he referred to the southerly point of this sandy spit or neck of land as the “ southermost parte of Anthony Iansens old Bowerye,” when by his decision and formal judgment confirmed by the Court of Assizes in the preceding year he had decided that the meadow or valley in controversy “ appertaines to neither of the pretenders being formerly esteemed as drowned and waste land though since for their owne Conueniency both have stroue to make use of it,” and he had decided as to this identical neck of land, “ And as to ye Neck of Land Endorsed upon y6 old Pattent of the said Francis Browne & also claymed by y6 said Inhabitants of Grauesend as aforesaid I doe thinke fitt since it hath hitherto, or most usually beene injoyed in Comon between ye Towne & that Farme that it Continue so still.” (N. Y. Col. Docs. vol. 14, pp. 623, 626.)
The plaintiff, appellant, argues that the Lovelace patent to Gravesend as recorded in the office of the Secretary of the Province does not grant the land under water in Gravesend bay. There is some question whether the “ Duke’s Laws,” cited by appellant as requiring the record of patents, applied to the Lovelace patent. But the record in the office of the Secretary is on its face incomplete. It is merely an abstract of the original document. The original patent, which is the complete instrument executed in 1670, was produced from the office of the commissioner of records, to which it had been transmitted by the town clerk of Gravesend upon consolidation. The claim advanced by plaintiff, that this original patent (conceded by plaintiff to be genuine) is not admissible or binding because it was not recorded in the Secretary’s office, seems to me to be rather strained. It was deposited in the town clerk’s office of Gravesend for 200 years. It bears the indorsement, “ Recorder [sic] by Order of the Governour. Matthias Nicolls Seer.” (Nicolls was the Secretary of the Province of New York.) It is sealed with the seal of the Province of New York. If in 1670 the clerk in the office of the Secretary in New York, charged with the duty of recording the patent, omitted any portion or saw fit to [186] record only an abstract of the document, I cannot see how it affected the rights of the town. But the most important fact is that it is referred to in the Dongan patent of 1686, which Dongan patent concededly was recorded, where, after reciting the old metes and bounds of the grant to the town of Gravesend, Governor Dongan concludes: “ as According to Severall Indian Deeds Agreements Writeings and the Pattent from Governor Francis Lovelace Dated in the Yeare of our Lord one thousand Six hundred and Seventy may more fully and at Large Appeare.” I think Mr. Justice Crane was right in his opinion in the Somerville Case (supra, 78 Misc. Rep. 209), where he said: “ The Dongan patent granted to the town of Gravesend in 1684 was but a confirmation of the Lovelace patent.” It is exceedingly difficult, if not impossible, within proper limits of an opinion, to detail the chain of title of the parties and the various facts and circumstances involved in the final conclusions.
The corporation counsel argues that the title of the town of Gravesend to the bed of Gravesend bay is res adjudicóla under the Somerville cases and our decision in Nevins v. Friedauer (supra). He refers to the opinion of this court in the Nevins Case (198 App. Div. 250), where we cite the decisions in the Somerville cases as authority for holding, “It has been, decided by the Supreme Court at Special Term that the title to the land under water in Gravesend bay was vested in the city of New York under the ancient patents to the town of Gravesend, the predecessor in title of the city. [Citing cases.] We agree with the conclusions of the Special Term in the cases cited, that the town of Gravesend was the owner in fee of the lands under water in the. bay and that title to such land is now in the city of New York unless conveyed by the town or city.”
I think the court was referring to the particular land in controversy in those cases. The learned counsel who represented Mrs. Nevins did not question the title of the town to the land under water in the bay under the colonial patents. Nor had we heard of this new line which is asserted here for the first time.
The plaintiff appellant’s claim in the ease at bar is based upon what I consider a strained argument advanced in this case for the first time. Plaintiff relies on the patent from Governor Kieft to Jansen in 1643. This was a grant of 100 morgens of land (200 acres) lying on the bay “ over against Conynen Island extending along the shore two hundred and fifty-three rods.” In my opinion this was the main farm or “ Old Bowerye ” of Jansen clearly shown on the Terhune map of the town of Gravesend of 1797 and on the Lefford and Strong map of 1788. In addition to the main [187] faim or “ Old Bowerye ” Governor Kieft in the same patent granted to Jansen “ certain outpoints lying on the South side [i. e., south of the main farm] * * * with yet another point extending South of the House.” This second “ outpoint ” was a narrow neck or sandy spit of land extending south from the main farm bounded on the west by Gravesend bay and on the east by a creek, and this creek ran down coming to a point practically at Coney Island creek. In my opinion it is clearly distinguishable from the Old Bowerye farm proper, the southerly point of which has marked the northerly or northwesterly boundary between the towns of Gravesend and New Utrecht ever since the towns were created. The plaintiff’s case is based on the contention that the south point of this neck was the northerly or northeasterly termination of the westerly boundary line in the Lovelace and Dongan patents. I think this is a strained and fanciful claim, a. It would exclude practically the whole of Gravesend bay from the Dongan and Lovelace patents, b. It would put the entire “ neck ” in the town of New Utrecht and that is in fact the claim now advanced (for the first time) by the plaintiff, the claim being that while Coney Island was in the town of Gravesend, down to its westerly point, the patents then ran back east parallel with the north shore of Coney Island creek on the east side of Jansen’s “ neck,” and the westerly line of the town then ran north leaving the “ neck ” between the town of Gravesend and the bay. c. If this were so, we might well ask why this water was ever called “ Gravesend Bay,” because according to plaintiff’s contention its entire easterly shore was in the town of New Utrecht, d. Every conveyance of the land on this neck in the plaintiff’s chain of title down to consolidation with the city of Brooklyn describes the property as located in the town of Gravesend.
But all of this easterly shore of Gravesend bay (including the location of the former “ neck ”) has always been part of the town of Gravesend, at least as far back as present day memories go. And I regard the “ Extract from Burr’s Atlas of the State of New York, 1829. Published pursuant to chapter 2, Laws of 1827,”