[790]*790The following is the opinion: of the referee :■
Olin, Referee:
This is an action of ejectment. The plaintiff seeks to- recover about nine a.nd eighty-one one-hundredths-acres of land under water now in possession of the defendant, who is owner of the adjoining upland. This land is situated south of Saddle Socle in the east part,of Little Heck bay (formerly Matthew Garretson’s bay) in the town of Horth Hempstead, county of Hassau.. Little Heck bay is on the north shore of Long Island opening from Long Island Sound, and, is divided at its head by a small peninsula now called Little Heck.
The plaintiff bases its. claim upon patents from the Dutch Governor, Kieft, and the English Governors, Hicolls; and Dongan.
Hntill78é the town of Hempstead ran from north to south across the island. By chapter 21 of the Laws of 1784 the town of Horth Hempstead was--set off by an east and west line and became vested with the right and title of the old town of Hempstead to the lands within its boundaries, including those adjacent to the sound.- (North Hempstead v. Hempstead, 2 Wend. 112.)
It. is not diáputed that the town of Hempstead acquired-the legal title to land under water within the bounds of its patents (Roe v. Strong, 107 N. Y. 358), and the question is whether the. disputed land falls within the boundaries of the grants to the town. The plaintiff contends that substantially'one-half of the land under water in Little Héck bay was' granted to the town, of Hempstead that the plaintiff’s westerly boundary line, under its patents, begins at. the head or middle of Matthew Garretsom’s bay (Little Heck bay) at a point in the middle or furthest projection of the. small peninsula known as Little Heck-and runs thence on a direct north line to the sound or East river., ■
The defendant claims that the lands under water in this bay were never granted -to tire town and that the title thereto remained in the sovereign and. is now in the State or its grantees. The defendant contends that the, point .of departure, for the west boundary of -the1 town lands is not to be found on the peninsula-of Little Heck, but at the head of the bay to the east of the peninsula, and that the line' runs northward along high-water mark to the sound, excluding all lands under water: ’ - ' ' , •
• On Hoverriber 16, 1644, Governor Kieft issued for the town of [791]*791Hempstead a patent to certain named persons by which he granted to them : “ A certaine quantity of land, with all the havens, harbors, rivers, ereekes, woodland, marshes, and all other appurtenances thereunto belonging, lying and being upon and aboiit a certaine place called the Great. Plaines on Long Island, from the East Eiver to the South Sea, and from a certain harbor now commonly called and knowne by ye name of Hempstead Bay, and so westward as farr as Mathew ■ Garretson’s Bay, to begin at the head of the said two bayes, and so to runn in direct lines, that there may be the same latitude in breadth on the south side as on the north, for them, the said patentees, actually, really and'perpetually to enjoy in as large and ample manner as their owne free lands of inheritance, and as farr eastward.” (Pamphlet of Law Department, City of Hew York, containing Colonial grants, published by Geo. L. Bives, Corporation Counsel, p. 84.)
On Harch 6, 1666, a patent of Governor Hicolls recited as follows : “ "Whereas, there is a certaine towne in the north riding of Yorkshire, upon Long Island, commonly called and knowne by the name of Hempstead, situate^ lying and being on the south side of the grate 'plaines, having a certaine tract of land thereunto belonging, bounds whereof on the northeast side begin at the northwest part o'f the lands commonly called Eobert Williams purchase, so running oh a direct south line to the southermost part of the said lands (which by computacon is to the middle of the Great Plaines); it extends thence east to the utmost limitts of the said Plaines, and so stretcheth again.e south to the sea from the northeast bounds aforementioned, a west line being rune to the head or middle of Mathew Garretson's Bay, it makes theire north bounds / from whence% running southward to the sea; they are bounded to the west by the east limitts of the townes of Flushing and Jamaica and south by the sea or maine ocean.” (Ibid, p. 47.)
This patent was given as a ^ confmnacon of the Kieft patent, ■and it conveys “ all the aforemenconed tract and neck of land, set forth and bounded as aforesaid, together with all havens, harbors, ereekes, quarryes * * * waters, lakes, rivers, fishing, hawking, hunting and fowling, * * * to the said towne, tract of land and premises within the limits and bounds aforementioned described, belonging or in any wise appertaining.”
[792]*792In the following year, 6th of March, 1667, Governor Nicolls signed a new ¡latent modifying the former one by including in. the north bounds Of the town certain lands at Matinicock on the east side of Hempstead harbor. This patent was recalled'and is important only as an aid to interpreting its predecessor. (Ibid, p. 50.)
On April 17, 1685, Governor Dongan gave a patent reciting: “ Whereas, there is a certaine town in Queens County, called and knowneby the name of Hempstead upon Long Island, situate,lying and being oh the south side of the Great Plaines, having a1 certaine tract of land thereunto belonging, the bounds whereof begin at a marked tree standing, at the head of Mattegarretts Bay, and so running and thence upon a direct south line due south to-the-main" sea,' and from the said tree a direct north line- to the south of "east Biver, and so around the points of the ne'cks until" it' comes to Hempstead Harbour, and so up the Harbour to a certaine barr or sandy beach; and from thence up .a1 direct line until it. comes to the marked tree on the east side of Contiagge Pointand from thence a southerly line to the utmost extent of the. Great Plainés. and from v / ' j thence upon a straight line to a certaine tree marked in the neck called Maskachóung; and so frinn thence upon a due south'line to the South- Sea, and the said South Sea is to be. the south bounds from' the east line to the west line,, and the Sound or East Biver to be the northerly bounds as according to the severall deeds Or purchases from the Indian owners and the patent from, the Dutch Governor William Kieft, relacon thereto being had doth more-fully and at large appear! -(Ibid," p. 52.) "
The plaintiff contends that the point described by Dongan as the “ head of Mattegarrets Bay,” by Nicolls. as “ ye head of ye middle of Mathew Garretson’s Bay,” and by Kieft as “ the head ” of Mathew Garretson’s- Bay, can only be found at the middle or furthest projection of the peninsula now known as Little Neck. . "" ■
The. defendant insists that, ex vi termini, the point so described must be sought at the head of one of the" smaller bays into which Little Neck bay divides and that, the head of the small bay on the east .side of Little Neck appears to a person standing" there to be the middle of Little Neck bay—an appearance which in the absence of actual survey might have been taken as fact by the draftsmen of the patents. "
[793]*793The arguments on this point, however ingenious, appear to me inconclusive, and the location of the westerly boundary of Hemp-stead must be ascertained, not from these patents alone, but by reference to a series of acts, declarations and patents relating to all the boundaries of the town.
The Kieft grant in 1664 of “ a certaine quantity of land, with all the havens, harbors, rivers, creekes, woodland, marshes and all other appurtenances * * * from the East River to the South Sea ” from Hempstead Bay “ westward as farr as Mathew Garretson’sBay to begin at the head of the said two bays, and so to runn in direct lines, that there may be the same latitude in breadth on the south side as on the north,” according to settled rules of interpretation, conveyed a body of land stretching across the island partly bounded by high-water mark in Hempstead bay and Matthew Garretson’s bay, and did not include land under water in either of these bays. (People ex rel. Underhill v. Saxton, 15 App. Div. 263, 269; affd., 154 N. Y. 748; Gerard Tit. Real Est. [3d ed.] 517; Gould v. Hudson River R. R. Co., 6 N. Y. 522.)
It should be noted that the words “ and as farr eastward ” at the end of the description in Kieft’s patent were taken as granting a tract of land running across the island equal in width to the tract already described. The northeast boundary-of this tract was undetermined and became the subject of further action.
On October 10th of the year 1645, Governor Kieft gave a patent to the town of Flushing of lands “ to run eastward as farr as Mathew Garretson’s Bay * *■ * being bounded * * * on the eastward part thereof with the land graunted to ye plantations and towne of Hempstead, and so to runn in two direct lines into the south side of ye said Island, that there may. be the same latitude in breádth on the south side as on the north side,” etc. (Law- Department Pamphlet, 81.)
Before the ensealing of this patent it was ordered that the “ land should runne north and south but as farr as the hills.”
Taking these two patents together title to the land under Little Heck bay remained in the sovereign.
On the 23d of January, 1657, the inhabitants of Flushing protested to the Governor against “ the intrusion of the men of Hempstead bn the East part of our boundés.”
[794]*794“ Some overture has bene made for redresse to the late gouvernour Kiffet,” but nothing was done in the business.. (Documents Relating to the. Colonial History of Hew York, vol. 14, 385.)
On May 11, 1658, an Indian deed was made to the “ magistrates and inhabitants of. Hempstead ” for a tract of land with a western boundary, “ beginning at a place called Mattagarrett’s Bay and soe running upon a direct line north and south from sea to sea,” etc. (Thompson’s History of Long Island, vol.- 2, 10.)
At -a General Towne Meeting mf the Town of Hempstead,' December ye 14th, 1663, it was voted that: “Mr. Seamans, Mr. Jackson and Henry Persall shall Forthwith Lay out the Lands at Matthew Garrisons Bay and Eastward at Matinacock in perticuler alotments.” (1 Horth & South Hempstead Town Records, 147,148.)
In January, 1664, Gj-overnor Hicolls addressed a letter to the Towns of Hempstead, Flushing and Jamaica. That written to “ye Constable and Overseers of Hempstead ” was as follows: “■ Gent.
“ The time within wch yor respective Pattents are to See renewed and confirmed, drawing on, to prvent misinformagon Concerning the Limitts alid Bounds of yor Several Townes, and to take'away all occasions of future Cavills and Contests, wch otherwise might arise, I have thought' fitt to direct you, to "appoint one or more from yor Towne, to Meete . * * * at Jamaica, to whom you are-to give full Instructions, concerning yor certaine Bounds and Limitts * *
Thirty-four delegates attended this meeting, which took place-at Hempstead on February twenty-eighth. (Documents Relating to the'Colonial History of Hew York, vol. 14, 592; Lamb’s History of Hew "York, vol. 1, part 1, 227.)
On March 2, 1664, at this “ generall meeting of the deputyes of Long Island held before the Governour at Hempsteed,” it was ordered “ that a lyne shall be drawn to runn through the middle of the hills * ■ * between the towns' of Flushing and Jamaica east and west, parallel with the lyne of Flushing, which shall be the bounds of each towne.” (Law Department Pamphlet, 88.)
At the same general meeting, but on March 3; 1664, the; record recites, “Whereas the towne of Jamaica doth lay'claime tó the Little Plaines, which the towne of Hempsteed alleadge to be within their pattent,
[795]*795“How, in regard the said towne of Jamaica have for nine years past enjoyed the said Plaines without molestation, and cannot subsist without them, neither is it knowne whether they are within 'the bounds of Hempsteed Patent, it is this day ordered that'the lyne of Hempsteed' bounds being drawn from the head of Mathew Garret-sons Bay (which is to say the middle of the said Bay) to run directly to the South Sea, what part of the said Little Plaines the said lyne doth not comprehend to be within ye bounds of Hemp- _ steed shall be and remain to the towne of Jamaica, and if any part thereof shall be within the bounds of Hempsteed in regard they are sufficiently provided, and Jamaica hath great necessity thereof, upon neighborly and moderate townes (terms), the 'towne of Jamaica shall likewise be possessed thereof by sale or assignmt from the towne of Hempsteed.” (Ibid, p. 89.)
At the same “generall meeting” in March, 1664, thé line betweén Flushing and Hempstead was fixed and the land of Flushing was declared “ to run eastward as far as Matthew Garretson’s Bay, from the head or middle whereof a line is to be run southeast in length about three miles, and two miles, in breadihf etc.
This appears from a recital in the Dongan charter to Flushing to be hereafter referred to.
On May 1, 1665, in pursuance of the order made at the “ Generali Meeting” in March, 1664*, a Hempstead town meeting “condescended” that their “Loving Sriends, The inhabitants of Jamaica,” should have “ all the little Plaines which our Line doth comprehend, and all the Meadow that lyes below the little Plaines that is to say .the meadow which lyes on the west side of the great Biver which comes out of the great Swamp.” (1 North & South Hempstead Town Records, 178.)
Thus, in 1664, the boundaries of Flushing, Jamaica and Hemp-stead, left uncertain by the Kieft patents, had been defined and established by the English Governor at Hempstead in .the presence of the-Long Island deputies, and he could now proceed to issue patents accordingly.
On February 15, 1666, Governor Hieolls granted a patent to Flushing of land “ to runne eastward as farr as Mathew Garret-son’s Bay from the head or middle whereof a line is to be runne southeast in lengths about three miles, and about two miles in [796]*796breadthe, as the line hath been surveyed and laid out by vertue of' an order made, at the Gmail. meeting held at ye town, of Hemp-stead jo. the morieth of March, 1664; thence , (that there may bee the same latitude in breadth on the south side as on the north) to runne in two direct lines southward * * * as is directed by another order made at the general! meeting aforesaid wli passing east and west as the trees are now_markt is- the bounds between ye said towne of Flushing and Jamaica.” (Law Department Pamphlet, 30.)
The town, of Hempstead had conferred upon Tilomas flicks certain lands lying on Little Heck (then called' Mad Hance’s Heck), which neck had been “heretofore reputed to bee within the limitts of the Towne of Hempstead.” ■ ■
Governor Hicolls on February 20,1666, gave Hicks a -patent confirming his title and granting him all the- neck, “ Provided that the lotts and Plantations which shall be settled upon the said neck have relacon to the Towns of ■ Flushing,” according to" the order made at the general meeting at Hempstead in- March, 1664.
In .March,, 1666, -therefore, when Governor Hicolls issued his patent to the town of Hempstead, the western boundary of Hemp-stead had been laid down, partly by orders of the Governor in General Assembly of the deputies of Long Island,, and partly by acts of the town of Hempstead. It no longer ran- flora the head of Matthew Garretson’s bay on a direct line southward, but ran southeast for three miles from Matthew Garr.étson’s bay, where it bordered on the grant to Flushing, and further south it ran .along the eastern boundary of the Little Plains, which belonged to ‘Jamaica. Governor Hicolls, at. least, recognized the whole of Little Heck as having relation to the towne of Flushing.- The eastern boundary of "Hempstead had also ceased to be a direct line drawn north and south. The Hicolls patent follows .the new east line as_ settled. It then says “ A west line being rune to the head or middle of Mathew Garretson’s Bay, it makes their north bowndsP
It cannot be supposed that this line, although called a “west line,”', was drawn due east ■ and west, so as to exclude the lands of Great Heck. A line running in a-general westerly direction, but following the northern limits of the town along "the sound, must have been intended. As to these northern limits no controversy-had arisen pr."seemed likely to arise.
[797]*797The western line is given as running from the head or middle of Matthew Garretson’s bay “ southward to- the sea; they are bounded to the west ly the townes of Flushing a/nd Jamaica, and South by the sea or Maine Ocean.”
On November 23," 1675, Governor Andros made an order reciting that whereas in Governor Nicolls’ time Cornsbury, or Little Madnan’s Neck (now Little Neck), where Capt. Thomas Hicks resides, “was adjudged to bee within the Limitts of flushing, since the Which the. Line having been runn, It hath been found that part of the Land on the said Neck, belonging to Cap* Thomas Hicks, is within the bounds of Hempstead * * * These are to declare That from and after the Date hereof, the fiarme and Land upon Corn-bury belonging to the Said Cap* Hicks shall bee deemed & held to bee within the Bounds and Limitts of Hempstead, & nor longer of flushing.” (Documents Relating to the Colonial History of New York, vol. 14, 707.)
On March 23,1685, Governor Dongan gave to the town of Flushing a “ Patent and Confirmation” of the Nicolls patent, using substantially the same words of description therein found. He recited an agreement between Flushing and Jamaica, dated March 6, 1679-80, whereby the boundary line between those towns had been ascertained and continued as follows: “ And whereas by another certaine writing or agreement, dated the last day of June, one thousand six hundred and eighty-fouer, made by Elias Doughty, John Seaman, Thomas Willett and John Jackson, with the bounds between the towne. of Flushing and Hempstead, are to begin at the middle of the Bay where Cajot. Jacgues runne the line% and to hold the same until it comes to the land called by the name of the Governor’s land, and then from the South side of the Governor’s land towards the end of the Plaine to. former marked tree which stands in the hollow, and to runne from thence upon a direct line until the Rocky Hill, westerly where carts usually goe to Flushing. * * *' And, whereas, applicacon hath been made to me .* * . * for a confirmation of the aforesaid tract'or parcell of land and premises contained in the aforesaid patent, as it hath since leen limited, butted and bounded by the aforementioned agreements of the town of Flushing with the towns of Jamaica-and Hempstead; ” and the patent confirms and grants “ all the before recited tract or parcell [798]*798or neck of land set forth, limited andboxmded as aforesaid by the aforementioned patent, Indian deed of .sale .and agreements.” (Law Department Pamphlet, 35.) ' ' ,
When in the following month, and on April 17, 1685, Governor Dongan gave a patent to Hempstead of land bounded "on the .west, beginning “ at a marked tree standing at the head. o.f Mattegarretts Bay, and so running and thence upon a direct south line due south to the main sea,” he was, if these words are taken literally, infringing upon the established rights and bounds of the town of Flushing. , ,
On June 2, 1686, at a town meeting in Hempstead, the patentees and others were directed to “ use their best' undever to maintayn the Jeneraíl bounds of our townd both of Purchis and Pattin and as for the west bounds of our townd which is beginning at matliagarafs bay hed and from-.thence’a south line to the see and a North Line to the. sound there being; formerly a Contrevarsy which was the hed of the bay and at the Jeneralb Metting that was held at our 'townd by Governor Nicols and the Ctintrys. debetys the thing being then desided and ordered by the athority afforesaid that the Middill of the said bay that is Mere the bottom of the litteTl Meek should be. a Counted for the Med of the said bay where then was a tree marked fer our west bounds between flushing and us from which tree or. Please We dwo Order and impówer our agents afferesaid to use their best indevour to maintayn a south Line to the see and a North Line to the sound.” (2 N. & S. Hempstead Town Records, 7, 8.)
By chapter 54 'of the Laws of 1.797 (amendatory of Laws of 1796, chap. 69, § 9).. the town supervisors in the different counties on Long Island were directed to cause maps of their respective towns, to be made and filed in the Surveyor-General’s'office. Pursuant to this act and in the year 1797, maps respectively of North Hempstead, Flushing and Hempstead,.by Wm. M. Stewart, surveyor, were filed,' The boundary between these towns runs southeast from Little Neck-bay abou.t three miles, passes the end of the Plains (now Floral Park) and goes to the “ Rocky Hill,” .which was a point of departure for the boundary between Flushing and Jamaica, The line was thus drawn, as it had been settled in the general meeting.of March, 1664, and as it notv exists between.the borough of Queens arid the county of Nassau. The boundaries shown by these maps seem to cor[799]*799respond with the bounds of the Hicolls patents as modified and established by the agreements between Flushing, Hempstead and Jamaica recited in the Dongan patent to Flushing. It follows that the point “ at the middle of the Bay where Oapt. Jacques rnnne the line” is the point where the present boundary between Queens and Hassau reaches Little Heck bay, at the head of the small bay to the east of Little Heck.
Is this the point which the town meeting in 1686 called “ the Middill of the said Bay that is nere thebottum of ihelittell Neck, ? This language is not perfectly clear, but it is certain that neither the town nor Governor Andros nor Governor Dongan could, in 1676 or 1686, move this boundary westward into territory already belonging to Flushing by patent and.agreement.
In 1691 August Graham filed a survey of a due south line by the compass (allowing no variation) from a certain “ Burch tree marked with the letter H ” near Hicks’ mill. This line seems to have been run with reference to some controversy as to land in Bockaway. Graham’s line fell to the eastward of one previously run by a Mr. Wells.
On May 8 and 9, 1727, Justice John Treadwell and other citizens, “ pui’seuant to a voat made by the mager voat of the freeholders of Hempstead did aid and assist Dr. Golding ye Jen eral Survaior of the province of Heu York. In Buning of our West Line which is our west bonds according to our purches and patians which is a direct South line due South from the head of mattheugarisons bay to the South Sea, beginning at a burch tree at ye sd bay head.” (3 N. & S. Hempstead Town Records, 88.)
Apparently from the account of the lines as drawn this survey agreed with that of Mr. Wells and not with that of Graham, who had allowed for no variation of the compass.
The map filed by Graham shows that the trqe marked H used by him was on Little Heck. It does not appear by whom or when the tree was marked. To settle questions arising on the south side of the island regarding lands not affected by the agreements made as to the boundary between Hempstead and Flushing, it was apparently deemed unnecessary to take into account the line which “ Oapt. Jacques runne ” and which had been adopted by. agreement on June 30, 1684, and I do not think, that the evidence furnished by the [800]*800Graham map can be taken to modify the conclusions already reached. It may be said,- further, that Graham’s north line (and still more Mr. Wells’ north line) drawn from the marked, tree on Graham’s map passes eastward of high-water mark of the upland on Great 'Heck adjacent to the defendant’s land under water, so that a north line, drawn from the tree marked by Graham, would not give the disputed premises to the plaintiff. - '
The Dongan patent to Hempstead, as has been said, runs “ from the said tree n direct north line to the South or East Eiver, and so around the points of the hecks until it comes to Hempstead Harbour,” etc. -
The Kieft patent hád given'tó Hempstead the lands from Hemp-stead bay “ westward as farr as Mathew Garretson’s' Bay,” that is to say, the whole, of Great Heckj but it appears that a straight line due north from either of the points claimed to be the- head of the bay would cut off portions of Great Heck. Hence, the line could' hot be literally a “ direct north line,” and must be either a line following the" shore or else a line drawn out into the bay to the west of north. Taking the .point of departure as at the head of the bay east-of Little Heck, where the boundary had been established by the patent to Flushing, it would be necessary to run the line almost northwest to inclose within the Hémpstead boundary any considerable part of the surface ,of' the bay. . Why should such a line, be described as a ££ direct north line ? ” How far into the waters, of the. sound should such' a line be protracted before turning ££ around the points of the necks until it comes, to Hempstead Harbour ? ”
A claimant under a gratuitous-- grant from the'sovereign must bring himself-within clear and unequivocal language, and the uncertainty of this line drawn to the sound • seems to me fatal to the plaintiff’s claim. (Langdon v. Mayor, etc., of City of N. Y., 93 N. Y. 145.)
I think, therefore, that the direct££ north line ” is to be taken as starting directly-north and following the shore of the land belonging to Hempstead in' a general northerly direction1, just as the “ direct south line due south to the main sea ” must, without doubt, be taken as running first southeast, then south, southwest and south again along the established boundary of the town of Flushing and1 the -line which “ Ca.pt. Jacques runne.” - . '
[801]*801It is to be noticed that the boundaries of the town ofllempstead, as shown on Stewart’s map, filed in 1797, include no land under water? nor is there evidence showing claim of title by the town before the year 1889 to any lands covered by the waters of Little Heck bay.
By chapter 231 of the Laws of 1835 Richard Udell was authorized to build a dock on the west side of Great Heck, extending into Little Heck bay not more than 400 feet beyond high-water mark. This dock was built near the'lands under water occupied by the defendant, and existed for years, so far as appears without protest from the town of Horth Hempstead.
My conclusion is that the land under water described in the complaint is not included within the boundaries of either of the Colonial patents to. the town of Hempstead, and is not shown to be the "property of the plaintiff, and for this reason the complaint should be dismissed.