flR*^ ^^W 1 ^ 3M|^Bp|PBMy KpM ''"■fiS^B^H ^fl ^^^^^^^^^BIS^K^^ ttu ; mm^l9 (flnritf U ICj ^c\jaa\ SJibrari 1 1 Cornell University Library KFN5171.P67 The dutch grants Harlem patents and tid 3 1924 022 802 858 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022802858 THE DUTCH GRANTS, HARLEM PATENTS AND TIDAL CREEKS. THE LAW APPLICABLE TO THOSE SUBJECTS EXAMINED AND STATED, IN CONNECTION WITH THE TITLES TO THE McGOWN MAESHES, (Oe thb Meadows in the Bay op Hell Gate), THE HAELEM MILL CEEEK, THE HAELEM MILL POND, MONTAGNE'S POINT, MONTAGNE'S FLAT, and VAN KEULEN'S HOOK. "With, an .A.pp.endix, Containing Copies op ANCIENT DUTCH DEEDS AND RECORDS, TRANSLATED FROM THE ORIGINALS AND AUTHENTICATED By JAMES RIKER, Esq., Author of "Histoky'of Haelem." And also, COPIES OP THE HARLEM PATENTS, AND ILLUSTRATIVE MAP, Eto. By JOHN W. PJ,RSSON, of tbe Neiv York Bar. NEW YORK: L. K. STEOUSE & CO., LAW PUBLISHEES, 95 NASSAU STREET. 1889. Entered according to Act of Congress in the year 1889, by JOHN W. PIESSON, In the OfQce of tlie Librarian of Congress at Washington. C.I PKEFACE. The following pages are the result, in the main, of inves- tigations made by the writer for his own information and for use in his practice. ■ At the suggestion of some of his friends, members of the New York 'Bar, he ventures to pub- lish this little volume, in the hope that it may be of some service to his brother toilers in the legal profession ; es- pecially to those whose attention may not have been par- ticularly turned to the lines of this inquiry. J. W. P. New York, Maeoh, 1889. TABLE OF CONTENTS. CHAPTEE I. INTRODUCTION. PAGE. The First Ground Brief 1 CHAPTEE II. The Dutch Grants 2 CHAPTEE III. The Indian Titles 9 CHAPTEE ly. The Harlem Patents Interpreted 10 CHAPTEE V. THE FIRST HARLEM FARM. Montague's Flat and Montague's Point 17 CHAPTEE VI. The Village ot New Harlem 33 CHAPTEE VII. TIDAL CREEKS.— PART FIRST. Not all streams in which the tide ebbs and flows are prima fade navigable and public. To raise the presumption that they are public, there must be a public use or navigation. A private navigation may exist in tidal streams. The theory that all tidal streams are prima fa/iie publici juris, is not sus- tained by the English Common Law authorities. The treatise -De Jure Maris, is probably responsible for that theory, but it does not really teach that doctrine. The salt marshes and the intersecting creeks are prima facie private property. The common law definition of navigable rivers 33 VI TABLE OP CONTENTS. CHAPTEE VIII. TIDAL CREEKS.— PART SECOND. According to American law, to render a stream public, there must be an actual, or potential, use of water for some useful purpose, connected with trade or agriculture. The Constitution of the State of New York, of 1777. The American Authorities as to tidal waters are conflicting and discordant. English and American Authorities examined and compared. By the Common law there are three kinds of rivers. The interpretation of grants bordering on small tidal streams. No Court of final resort has actually decided, as a matter of law, that all streams in which the tide ebbs and flows, are prima fade public and navigable. The rivulets of Manhattan Island. The Harlem salt water creeks not pi^blic streams 54 CHAPTEE IX. The McGown Marshes, (or the Meadows in the Bay of Hellgate) 85 CHAPTEE X. The Harlem Creek, The Harlem Mill Pond and Van Keulens Hook. Part First 107 CHAPTEE XI. The Harlem Creek, The Harlem Mill Pond, and Van Keulen's Hook. Part Second 124 CHAPTEE XII. Summary ;J28 APPENDIX. King Charles the Second's Grant of New Netherland, &c., to the Duke of York ^^30 The Duke of York's Commission to Colonel Richard NlcoUs 135 Agreement between John Montague and John Louwe Bogert for the sale of Montagne's Point, or Reohawanes, and the Meadows in the Bay of Hell Gate...., jow Deed from the Magistrates of Harlem to John Montague for Mon- tagne's Point and the Meadows in the Bay of Hell Gate 138 TABLE OF CONTENTS. Til Deed from Mrs. Maria Vermllje, the widow of Joiin Montagne, to Jolin Louwe Bogert, for Montagne's Point and the Meadows in the Bay of Hell Gate 146 Resolution of the Constable and Magistrates, estimating the land of Bogert purchased from Lamontagne at 18 morjrera 139 Deed for the Hop Garden by Maria Vermilje, widow of Jan de La- montagne, to Cornelia Everts, wife of Jan Louwe van Schoonre- woert (or Bogert) 140 Judgment in Joost Von Oblinus «. Jan Louwe Bogert, relating to a small meadow in the southerly end of the Bay of Hell Gate 141 Deed of the Overseers and Authorized Men of Harlem, to Jan Louwe Bogert, for a piece of land lying in the Bend of Hell Gate. Being Lot No. 25 of common lands 142 Deed of the Overseers and Authorized Men of Harlem, to Jan de Lamaeter, for a piece of land lying in the Bend of Hell Gate. Being Lot No. 26 of common lands 143 Minutes of the Town of Harlem, dated Jan'y 3d, 1667, relative to building the dam for Delavall's Mill at Harlem Creek 145 Historical statement of James Riker, Esq., relative to lots Nos. 21, 23, 23 and other lots on Van Keulen's Hook, and Jochem Pieter's tract, &c 147 Minutes of the Town of Harlem of Oct. 23d, 1738, containing grant to Samson Benson to build a dam and a mill on the Mill Camp "in place of Delavall's Mill gone to decay," 150 Award of Lewis Morris 6f the Manor of Morrisania, Abraham Van Wyck and others, on behalf of the freeholders of the township of New Harlem, alloting the Mill Camp Tract adjoining the Mill Pond, to Benjamin Benson 151 Certificate of James Riker, Esq., author of the History of Harlem, authenticating Dutch documents ' 154 Patent of Richard Nicolls, Governor, &c., to the Freeholders and Inhabitants of Harlem, of 1666 ., 156 Patent of Richard Nicolls, Governor, &o., to the same, 1667 159 Patent of Thomas Dongan to the same, of March, 1686 162 Opinion of Richard O'Gorman, Esq., Counsel to the Corporation of New York 167 Opinion of William C. Whitney, Esq., Counsel to the Corporation of New York 170 Opinion of the Hon. Murray Hoffman, relating to Harlem Mill Creek. 174 Second Avenue Opening — Extracts from Report of Commissioners.... 181 Extracts from proceedings for opening 106th and 107th Streets, with Map... 185 Illustrative Map 187 INDEX TO TABLE OF CASES CITED. Atkinson v. Bowman (5 N. Y. State Reporter) 13, 15 Breen v. Lock (N. Y. State Re- porter) 13, 63, 74, 75, 76 Bristow «. Cormican (3 App. Cases, House of Lords)... .49, 104 Buok«. Squires (23 Vt) 117 Canal Commissioners v. Kemp- slial(36Wend.) 54 Canal Commissioners v. The People (5 Wend. S. C. 17 Wend.) 6, 7, 55 Child V. Starr (4 Hill) 59, 70, 117 Commonwealth «. Charlestown (IPiok. Mass. R.) 56,65 Culver V. Rhodes (87 N. Y.) 100 Denton v. Jackson, or Town ot Hempstead (3 Johnson Ch. R:) 13,14,15 Elder «. Burras (6 Hiimph. Tenn. R.) 60 Ex parte Jennings (6 Cow.). 5, 7, 64 JEx pa/rte Tibbets (5 Wend.) 59 Florence «. Hopkins, (46 N. Y.) 99, 100 Johnson «. Mcintosh (8 Whea- ton, U. S. R.) 5, 9 Luce i>. Carley (34 Wend.)....,. 116 Martin v. Waddell (16 Peters, U.S. R.) 5 Mayor of N. Y. v. Hart (95 N. Y. S. C. 16 Hun). 7, 13, 15, 69, 74, 76 Mayor of Lynn «. Turner ( 1 Cowper)..45, 53, 55, 64. 80, gl, 83 Mayor etc. , Colchester v. Brook (7 Queens Bench) 47, 67 MoCannon rinia facie in the state. Four years after this, that is 1826, the celebrated case of Ex parte Jennings (6 Cowen, p. 528), was decided in New York. The language of the court in regard to the common law rule relating to the flow and re-flow of the tide is so .similar to that of Chief Justice Parker, as to raise the impression that it was derived from his decision. It may be that both of these opinions were drawn from a common source, but neither of them appear to be in accordance with the English authorities. The language of these, as well as that of some of the •other decisions in the United States, which include all tidal waters as public, seems to show a want of harmony with the English jurisprudence on the subject. The opinion that the king's title extends to all tidal waters, even the smallest creek as well the largest river, appears to be based entirely upon the above mentioned pas- •sage in the treatise De Jure Maris. There seems to be no .authority for such a doctrine anterior to the publication of that work. It is believed that every opinion holding that to be the law, whether expressed by court or counsel, if it •could be traced to its source, will be found to take its rise in the paragraph relating to the flow and re-flow of the tide in that treatise. Now it is probable that the author of that 58 work did not mean to be so understood. But if lie did, it is very strange that we do not find prior to its appearance, this doctrine stated in any such marked and pronounced language as is shown in many of the American decisions, since the De Jure Maris appeared. Assuming that this hypothesis is correct, there are but two tenable theories on which to account for it, namely : First, The treatise does not teach that to be the law ; or. Second ; if it were the law when the treatise was written, it was not afterwards regarded or followed. Eeferring to this variance from the English law, Mr. Houck says (p. '\X,sux>ra): " It is commonly received opinion in this country, that in England the only test of navigability of a river is the ebb and flow of the tide. This general idea here, on this point is, however, erroneous. It is true that there the usual means of designating a navigable river is the ebb and flow of the tide ; and it is this common method of designation which has led to the idea here, that the ebb and flow of the tide ia the only test of navigability at common law ; but this opinion is, as already remarked, an error, because there, while it is the commonly used and most prominent, it is not the only test being the most natural and the most readily perceived test in that country, it was easy to take for granted with- out question or reflection, that it was the only test. It is, however, not reasonable to suppose that such would be the case, in a system of laws so eminently flexible as that of England, ahd so easily adapting itself to the necessity of circumstances controlling the application of a principle, when navigability did not depend on the ebb and flow of the tide, and the natural test stated was hy daily observation of actual navigation, shown to be erroneous. Our general adoption of this idea here, does not make the test itself" correct ; nor does its general use there make it such, even there. WJierever thepvhlic, whether in England or America, have actually used a river as navigable, it is such, whether the tide ebbs or flows, or does not ebb or flow, at the navi- gable places in its course so used." He futher says (p. 15, Id.): "In some American Courts, the common law seems- 59 to have been misunderstood, and the ebb and flow of the tide is considered the only test of navigability, and misled by this idea some singular decisions have been made." It is probable that Mr. Houck was quite right in this opinion ; and that it was owing to certain passages in the treatise De Jure Maris that many eminent judges in this country were led to believe that the term navigable rivers, meant all waters in which the tide ebbs and flows and excluded all other waters. The unreasonbleness of this, proposition as well as its unsuitableness to the conditions existing in this country, led some of the judges to modify or wholly repudiate the supposed common law, as inappli- cable to this country. This is shown in the following opin- ions. Judge Bronson said in Child v. Starr, (20 Wendell, 149): "Navigable rivers belong to the public ; other streams may be owned by individuals In England, a rule of evidence has been adopted, which although it recognizes the doctrine, does not always give it complete practical effect. By the common law, the flow and re-flow of the tide is the criterion for determining what rivers are public. " This rule is open to the double objection, that it includes some streams which are not in fact navigable, and which consequently might well be subject to individual ownership; and it excludes other streams, which are in fact navigable, and which in every well regulated State should belong to the public. "Although the ebb and flow of the tide furnishes an imperfect standard for determining what riv^s are navi- gable, it nevertheless approximates the truth, and may answer very well in the Island of Great Britain, for which the rule was made. But such a standard is quite wide of the mark when applied to the great fresh water rivers of this continent, and would never have been thought of here if we had not found the rule ready made to our hands." Senator Beardsley said, in the case of Ex parte Tibbetts, (5th "Wendell, 423): "That the rule of the common law extending grants on the shores of rivers above the flow and re-flow of the tide, usqybefilum aquae, does not apply tO' 60 our large fresh water rivers ; at all events, a patent bounded on a river navigable above tide-water passes no interest to the patentee in the bed of the river as against the State." He further remarks : "Eules of law should be adapted not only to the naoral, but to the physical condi- tion of the country. Had the common law originated on this continent, we should never have heard of the doctrine that fresh water rivers are not navigable above the flow of the tide ; nor would our courts have been called upon to compromise the interests of the community by sacrificing truth to technicality, and substance to form." This last sentence of the learned Senator, although it had reference to navigable fresh water rivers, is applicable to those decisions which hold out the idea that all the non- navigable salt wat6r creeks and streams are navigable in the law. Thurley, J., said in Elder v. Hurras, (6 Humph. Tenn. ■366): "All laws are or ought to be, an adapation of the principle of action to the state and condition of a country and its moral and social position. There are many rules •of action recognized in England as suitable, which it would be folly in the extreme, in countries differently located, to recognize as law; and in our opinion, this distinction between rivers navigable and not navigable, causing navi- gability to depend upon the ebbing and flowing of the tide, is one of them. The insular position of Great Britain, the short course of her rivers, and the well-known fact, that there are nqne of them navigable above tide waters, but for very small craft, well warrants the distinction there drawn by the common law." In McManus v. Carmichael (2 Clarkes Cases in Law and Equity, Supreme Court, Iowa), Woodward, J., said: "First, Although the ebb and flow of the tide was, at common law, the most usual test of navigability, yet it was not necessarily the only one. Second, However the truth may be upon the above proposition, that the test is not applicable to the Mississippi Eiver. Third, The common consequences of navigability attach to the legal navigabil- ity of the Mississippi." . . . . " However the truth 61 may be upon the first proposition, the flow and re-flow of the tide is not applicable to the Mississippi, as a test of its navigability ; and the common law consequences of navi- gability attach to the legal navigability of the Mississippi Eiiver. The arguments and authorities on these two propo- sitions being in a great measure identical, they must be considered together. " The thought has been before suggested, that, as a real and virtual test, the tide is a merely arbitrary one, and is not supported by reason, since many waters where the tide flows are not in fact navigable, and many where it does not. flow are so. It is navigability in fact which forms the foundation of navigability in law, and from the fact follows the appropriation to public use, and hence its publicity and legal navigability. It is true this legality attaches to some waters which do not possess the requisite quality in fact ; but this arises from their relation to the high seas and admiralty, and from the difficulty of making a hundred exceptions. It is impossible to bring the mind to an approval when we attempt to apply it to the rivers of this country, stretching three thousand miles in extent, flowing through or between independent States and bearing a com- merce which competes with that of the oceans, of a test which might be applicable to an island not so large as some two of our states, and to streams whose utmost length was less than three hundred miles, and whose outlet and fountain at the same time, could be within the same State jurisdiction." Other cases could be referred to of similar purport. But these will suffice to show how wide-spread is the opinion in the United States, that by the common law, the property of the sovereign extends to all places where the tide ebbs and flows. It is not only remarkable that such an opinion should he- so generally held, but that in one respect, the decisions all bear a family likeness. That likeness consists in that opinion being volunteered in every case so far as examined, without its having any essential connection with the ques- tion before the court. In each of these four cases, the title^ 62 -to the soil under fresh water rivers, whioli were navigable in fact, was in dispute. The preliminary question was, whether the common law was applicable to such waters, in the respective States, in which the actions were pending. It is generally conceded that by the common law, the king's title does not extend to any waters in which the tide does not ebb and flow. This is a good common law reason, because it is founded upon the fact that in England none of the rivers in their natural conditions, were actually navigable above the flow of the tide. Those parts of the . rivers being incapable of any public use, no public right intervened, and consequently no right on behalf of the king attached to them. This goes to show that the king's title extends only to these waters which are actually navigable in the commercial sense, irrespective of the flow and re-flow of the tide. The question, therefore, for the court to deter- mine in each of these cases was, not as to whether the title of the king did or did not extend to all waters where the tide ebbed and flowed, but whether the tide ebbed and flowed in the river in question, and that fact being ascer- tained, then to determine whether the river was legally navigable or not. As the tide did not flow in any of those rivers, the presumption would be that, according to the common law rule, they were not navigable. But those riv- ers being different in character from any in England, owing to their actual navigability, although free from the ebb and flow of the tide, that raised the very natural and pertinent question, as to whether the common law applied to such rivers or not. The common sense answer is, that it did not. The books show comparatively few cases in which the question of the rights of property in the soil and waters of small salt water streams and creeks were involved. In only one case, as far as known, has the question as to the joHma facie title to such a stream been openly and fairly presented and decided. That was the case of Bowe et al. v. The Gran- ite Corporation, (21 Pick., Mass. E. 344), which will be more fully considered subsequently. In this case it was decided that such a stream was not prima facie presumptively a public navigable river. To raise the presumption that such 63 waters were " navigable in fact," there must coincide, both the fact of tide and the fact of navigation being practicable. The case of Breen v. Locke, (11 N. Y. State Beporter, supra), involved the title to the soil in one of the extinct Harlem Creeks. The decision in that case, in effect held that the stream was not a navigable river. In most of the other cases the Court went out of its way to volunteer the opinion that the title to all streams and rivers in which the tide ebbs and flows is prima facie in the State or public, although that question was not before the Court for its decision. Davies, J., in his very able and exhaustive opinion, in The People v. The Canal Appraisers, (33 N. Y. p. 461), con- tends that the "supposed common law doctrine," did not apply to the large fresh water rivers and lakes in New York, and further, that by the commoiv law the term navigable river means navigable in fact. He says (p. 472): "While, it must be conceded that Hale, in his treatise, regards it as essential to a navigable river, that it should have the ebb and flow of the tide, and ceases to be navigable in this sense, when or at the point when it is uninfluenced by the tide, yet it can not be denied that such has not been the opinion of all the English judges in all cases. Lord Mans- field correctly said ex facto oritor jus and it seems more rational to determine the question of navigability or un-navi- gability from the fact of navigation or otherwise, than from a circumstance which may or may not be conclusive evi- dence of its navigability. The flow and re-flow of the tide is prima facie evidence as has been said, of the fact that the river is navigable, but the real and substantial inquiry must always be to ascer- tain whether the river is navigable or not. When this main and controlling fact is established, then we have the means of determining whether the alveus or bed of the river is the property of the adjoining owners, or belongs to the State, or the people represented by it." The acts of the Legislature of the State of New York, relating to the grants of land under the waters or of interest in the waters of the State, show that the legal meaning of 64 the word navigable, as understood by the legislature, is " navigability in fact." This application of the word naviga- ble, in these Acts, seems to be wholly irrespective of the tide. See Eevised Laws of 1813, Vol. 1, § 4, p, E. S., Chap. 9, Title 5, Article 4, § 67. Laws of 1850, Chap. 283, p. 621. 293. Some of these divergent English and American decisions will now be compared in juxtaposition. UNITED STATES SUPPOSED COMMON LAW. • " By the term navigable river the law does not mean such as is navi- gable in common parlance. The smallest creek may be so to a cer- tain extent, as well as the largest river, without being legally a navi- gable stream. The term has in la/w a teehnical meaning, and a/pplies to all sPreams, rivers or arms of the sea, wJiere the tide ebbs and flows." Exparte3enmngs,6'W6nd.528, sup. " It may be remarked that by the Common Law the property ot the sovereign is said to extend to all places where the sea ebbs and flows, whether such are navigable or not ; but it is^probable the usages of our country have given a, reasonable limitation to this doctrine, confining the public right to what may be of public use, so that in many little creeks into which the salt water flows, but which are incapable of be- ing navigated at all, private prop- erty may be maintained." Opinion of Parker, Ch. J., in Commonwealth v. Charleston, 1 Pick., Mass. R. p. 179, supra. ENGLISH COMMON LAW. Lord Mansfield said: " JSx facto oritur jus. How does it appear that this is a navigable river ? I'he flow- ing and refiowing of the tide does not make it so, for there a/re many places into which the tide flows that are not na/oigable rivers ; and tlie place in question may be a creek in their own private estate." Mayor of Lynn v. Tu'rner. 1 Cow- per, p. 86, supra. "If was for the defendant to make out that there was once a public navigation. Now it does not neces- sarily follow, because tfie tide flows and re-flows in any particular place, that there is therefore a public navi- gation, although of sufficient size. Tlie strength of this prima facie evi- dence, arising from tlie flux an,d re- flux of the tide, must depend upon, the situation and nature of the chan- nel. If it is a broad and deep chan- nel, calculated for the purposes of commerce, it would be natural to conclude that it has been a public navigation; but if it is a petty stream, navigable only at certain periods of the tide and then only for a short time and by very small boats, it is difficult to suppose that It ever has been a public, navigable channel." 65 Decision of Bailey, J. , in Bex v. Montagiie. 4 B. & C. supra, 598. In the De Jwre Maris, Chap. VI, there is this statement: "For such spring tides do many times overflow ancient meadowa and salt ma/reli£s, which yet unquestionably belong to tlie subject. And this is admitted of all hands.'" In the case of Providence Steam Engine Company v. Providence, 13 Khode Island R. 348, 356, Potter, J., said: "To apply the Common Law doctrine strictly would require us to hold that all the marshes in the State belong to the State; yet from the very first settlement, although flowed by the tide, they have always been recognized as private property, platted and sold as such, taxed as such, and the State has made pro- vision by statute for exempting them from the fence laws, for the very reason that they are overflowed by the tides." In none of the above American cases are the statements in relation to the Common Law apparently matters of decision, but of opinion only. They should therefore be followed only in so far as they truly interpret the law. They do not profess to modify or change the law, as is the case in some of the decisions relating to the large inland rivers and lakes, but to expound and apply the law, as derived from the mother country. There appears to be but one English decision that seems to be wholly inspired by the paragraph in the De Jure Mards, relating to the flow and re -flow of the tide, and it will now be considered in connection with a celebrated American decision not so inspired. ENGLISH COMMON LAW DE- CISION. Trustees of Duke of Bridgewater v. Highways of Bootle, 7 Best & Smith's and S. C. 3, Law R. 3 B. 4. "The Respondents, in the exer- cise of the powers of the general highway act (5 & 6 Wm. 4 C. 50), assessed certain parts of the Liver- pool docks, in the occupation of the COMMON LAW AS INTERPRE- TED IN THE UNITED STATES. Esther Rowe et al. v. The Granite Bridge Corporation, 31 Pick., Mass. R. 344-7. Bill in Equity. "The plaintiffs allege that they are seized and possessed, as tenants in common, of a certain tract of salt marsh in Milton; that from time immemorial there has been a creek 66 appellants, to the highway rate of the township of Bootle, on the ground that such premises were within that township. The land upon which the docks occupied by the appellants have been constructed, was situate on the foreshore of the river Mersey, between the ordinary or medium high water and low water mark, but the land has been re-claimed, and the tide no longer flows over it. Before the construction of these docks, the township of Bootle ex- tended on its western side, along part of its course as far as the sea, and along other parts as far as the mouth of the river Mersey. There was nothing to' show whether the Township of Bootle along its west- ern side, does or does not extend beyond the line of the ordinary high water mark, and if necessary for the purpose of the case, the Court were to decide what is the western boun- dary of the Township." Mellor, J., said: "There must be judgment for the appellant. The respondents have to show that the premises they have rated are within their township. Now, in the absence of any evidence, such as perambula- tion or other acts by the parish au- thorities, the land between medium high water and low water mark can- not be presumed to be within the adjoining parish; the presumption seems rather to be that it is extra parochial and here there is no evi- dence on the point. I can not help thinking there must be some misap- prehension In the report of Bex v. Landulph, as what is attributed to Patterson, J., seems quite inappli- cable to the circumstances of the case; at all events the ruling as reported is inconsistent with the authorities on the point, for there seems to be no distinction between commencing at the high part ot the marsh, and passing through it to Nepnotes Kiver, whereby the tide- water is drained off from the marsh, which creek is of sulficient width and depth to admit boats and gon- dolas and light-draft craft to pass up the creek in common tides, and such craft may be used to advantage in removing the crops of hay from the marsh ; that the defendants, by their act of incorporation, were authorized to construct a road over the lands therein mentioned and to build a bridge over the Neponset River ; that pursuant to their author- ity they had laid out the road over the marsh and across the creek, and as the creek runs in an angular direc- tion to that in which the road is laid out, the road passes over the creek the distance of fifteen rods, . . . and that the defendants are proceed- ing to fill up the creek ; and the bill prays for an injunction," etc. Shaw, Ch. J., delivered the opin- ion ot the Court. He said: "This Is a bill in equity, which comes be- fore the Court upon regular plead- ings and proofs. It goes substan- tially upon the ground of nuisance, and prays for a perpetual injunction against the defendants ' But the question which has been mainly discussed in the present case is : Whether the creek in question is a navigable creek ; and this is a question of fact upon the evidence. Before examining this evidence it may be proper to consider what distinctly is meant by a naniigable stream when applied to tide-water. It is not every ditch in which the salt water ebbs and flows through the extensive salt marshes along the coast, and which serve to admit and drain off the salt water from the marshes, which can be considered a navigable stream. 67 the seashore and the shore of a tidal river. There is no foundation for this rating, either on the above prin- ciple or on the construction of the Highway Act ; and the respondents having failed to make out any prima facie right to rate the dock, the other questions are immaterial, and there must be judgment for the appel- lants." Shea, J. and Lush, J. concurred. Having in view the above English authorities, it will hardly seem pre- sumptions to say that if anybody was mistaken it was not Patterson, J., but rather Mellor, J. It is as plain as the proposition that two and two make four, that any one who lays claim to a piece of land below high water mirk in a place like the harbor of Liverpool, must prove title, or be defeated. It was not, therefore, necessary for the Court to express an opinion whether the judgment in Sex v. Laneulph was sound or not. Mellish, Q. C, for appellant, relied mainly upon the ebb and flow passage in the De Jure Maris, and evidently carried the Court with him, for it not only adopted his views, but his very lan- guage. By this decision the Duke of Bridgewater's estate escaped taxa- tion under a technicality. Whether It could be taxed by anybody, quere ? Nor Is it every creek in which a fish- ing skiff or gunning canoe can be made to float at high water, which is deemed to be navigable. But in order to have this character it must be navigable to some purpose useful to trade or agriculture. /* is not a mere possibility of being used UTider some circumstances, as atextraordin- oury tides which will give it the eha/r- acter of a nmigable sin-earn. But it must be generally and commonly use- ful to some purpose of trade and agri- culture." In the case of The Montello, 30 "Wallace, 430 U. S. Eep., Davis, Jus- tice, cites with approval the above decision of Ch. J. Shaw, quoting his language relating to the fishing skiff, etc. He then says: "This Court, in the case of the Daniel Ball (10 Wall.) held, that those rivers must be regarded as navigable riv- ers in law, which are navigable in fact. And they are navigable in fact when they are used, or are sus- ceptible of being used, in their ordi- nary conditions aa highways of com- merce over which trade and travel are or may be conducted in the Cus- tomary modes of trade or travel on water." This definition is quite in har- mony with that given by Lord Den- man in Colchestefr v. Brooke {supra"). Let these decisions be tested in the light of the rule laid down by Blackstone : " But here a very natural and very material question arises, how are these customs or maxims to be known, and by whom is their validity to be deter- mined ? The answer is, by the judges in the several Courts of justice. They are the depositories of the laws, the liv- ing oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. Their knowledge of that law is derived from experi- 68 ence and study ; from the viginti annorum lv,cuhrationes which Fortescue mentions ; and from being long person- ally accustomed to the judicial decisions of their predeces- sors. And indeed these judicial decisions are the principal and most authoritative evidence that can be given of the existence of such a custom as shall form part of the com- mon law. The judgment itself, and all the proceedings previous, thereto, are carefully registered and preserved, under the name of records, in public depositories set apart for that particular purpose, and to them frequent recourse is had when any critical question arises, in the determina- tion of which former precedents may give light or assist- ance. .. . . For it is an established rule to abide by former precedents, where the same points come up again in litigation, as well to keep the scale of justice even and steady and not liable to waver with every new judge's opin- ion ; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule which it is not in the breast of any subsequent judge to alter or vary from according to his own private sentiments, he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land ; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evi- dently contrary to reason — much more if it be clearly con- trary to the divine law. But even in such cases the subse- quent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd and unjust, it is declared, not that such a sentence was had law, but that it was not law ; that is, that it is not the estab- lished custom of the realm, as has been erroneously deter- mined." Blackstone's Com., V. 1, p. 69. And at p. 71 he further says : " So that the law and the opinion of the judge are not. always convertible terms, or one 69 and the same thing ; since it sometimes may happen that the judge may mistaJce the law. By the common law there are three kinds of rlyers. First; "Navigable rivers, so high as the sea ebbs and flows," which are also denominated " royal rivers." Second ; other tidal rivers "not navigable." Third; "Inland rivers not navigable." Gould, supra, p. 107, note 1. These rivers are divided into two classes, public and pri- vate rivers. The royal rivers are the public rivers, because they " are of common or public use for the carriage of boats and lighters, and common highways for man and for goods." The other rivers, whether fresh or salt, "are pri- vate not only in propriety or ownership, but also in use." These are private, because in their natural conditions they are not suitable for commerce, and are therefore not required by the people. De Jure Maris, c. 3. If a grant is made by the Government of land bordering upon a public navigable river to a private person or corpo- ration, it extends only to the medium high water line. If such a grant is made to a municipal or civil corporation for public purposes, it goes to the low water mark. The Mayor, dbc, of New York v. Ilart, 95 N. Y. p. 450. Rogers v. Jones, 1 Wend. 238, supra. n a grant is made by the Government or a private person of land bordering on a stream either of fresh or salt water and the same is not navigable, in fact, the grant extends to the center of the stream. See cases above cited. This rule is in accordance with the principles embraced in the decision in ex parte, Jennings, supra, and the other following cases. In Ex parte, Jennings, the question was the constnaction of a grant made by the State of lands bor- dering on the Chittenango Creek. Jennings claimed to be the owner of the bed of the creek. The Supreme Court held that the Chittenango Creek was not navigable, because the tide did not ebb and flow in it. It decided that grants included the stream. The Court said : " If the State had 70 intended to retain the property in the stream, they should have inserted an express reservation or exception to their grants. An opposite rule prevails in the construction of grants bounded on the margin of navigable rivers." (Then follows the opinion as to vs^hat constitutes a navigable river, above quoted). "A public grant bounded upon the margin of such waters extends by construction no further than high water mark, and leaves as to the rest, an absolute pro- priety interest in the public." In Child V. Starr, 4 Hill, the case involved the title to part of the Genessee River, Bradish, President, in deliver- ing the opinion, said (p. 380) : "Though the term shore is technically applicable only to the sea, to lakes or to other large bodies of water, yet in its judicial and popular appli- cation to rivers, it is, by elementary writers, the adjudica- tions of the Courts and in common understanding, as clearly defined, as well settled, and as universally recog- nized, as is the filum aquae, or thread of the stream, and a grant of land bounded generally on or running along a pri- vate stream, would not more certainly carry the grant to the thread of the stream, than would a grant bounded by and running along the shore of such a stream, be limited to the waters edge or margin of the stream." In this case, Walworth, Chan, said (pp. 373, 375): "The Common Law rule, as I understand it, is that the riparian proprietor is prima fade the owner of the alveus or bed of the river adjoining his land, to the middle or thread of the stream ; that is, where the terms of his grant do not appear to show that he is limited. And when by the terms of the grant to the riparian pro- prietor he is bounded upon the river generally, as a natural boundary, or in the language of Pothier, where the grant to the riparian proprietor has no other boundary on the side thereof, which is adjacent to the river, but the stream itself, the legal presumption is that his grantor intended to con- vey to the middle of the stream, subject to the right of the public to use the waters of the river for the purposes of navigation in their accustomed channel." This is Chancellor Kent's statement of the rights of ripar- 71 ian proprietors: " It is a settled principle of the Englisli law, tliat rights of soil, of owners of land bounded by the sea, or navigable rivers where the tide ebbs and flows extend to high water mark ; and the shore below common, but not extraordinary high water mark belongs to the State as trustee for the public ; and in England the Crown, and in this country the people, have the absolute proprietory interest in the same, though it may by grant or prescription become private property But the shores of navigable waters, and the soil under them belong to the State in which they are situated, are sovereign. The right of sovereignty in public rivers above the flow of the tide is the same as in tide-waters, they are juris j?ublici, except that the proprietors adjoining such rivers, own the soil ad fllum aquce. But grants of land bounded on rivers or upon the margins of the same, or along the same, above tide- water carry the exclusive right and title of the grantee to the centre of the stream, unless the terms of the grant clearly denote the intention to stop at the edge or mar- gin of the river ; and the public in cases where the river is navigable for boats and rafts, have an easement thereon or right of passage subject to the Jus publicum as a public highway. The proprietors of the adjoining banks have a right to use the river as regards the public." Kent's Com., Vol. 3, p. 427, m. p. This statement is evidently drawn in the main from the tresitise De Jure Maris. So far as it goes, it is in entire agreement with the English authorities. It does not define what a navigable river is, further than that it must be tidal. It does not lay down the iron rule, that every stream where the tide ebbs and flows, even " to the smallest creek," is a navigable river. It is true that he did not make so comprehensive a defin- ition as Lord Hale. He did not state that, not only must the tide ebb and flow in a navigable river, but that it must be " of common and public use, for the carriage of boats and Ughters, and a common highway for man or for goods, or for both." And he did not include aU the " streams or rivers that are private not only in proprietory or ownership, 72 but also in use, as little streams and rivers that are not a common passage for the king's people," but only referred to those streams of that character, that are above the ebb and flow of the tide. He makes no reference to small tidal creeks either directly or by implication. Neither does he go into the question of public use as the preliminary test of a navigable river, as seems to be the case in all the English enquires, where the river is not of such a public notoriety, as to be legally known to be a navigable river. In a recent action in ejectment brought by Edward Roberts v. August Baumgarteti, et al (51 N. Y. Supr. Court, p. 482), the plaintiff claimed title to part of the bed of Har- lem Mill Creek. He founded his claim' upon a title derived through a deed made by Benjamin Benson to his son Peter B. Benson, in 1791, conveying as follows : " All that mes- suage or tenement, being all my estate to the North of the Mill Pond, between the fence of the widow Storm, and the road leading to Harlem, including the Mill Stream and Mill and Mill Pond, with all its privileges and appurten- ances, and to shut the mill dam at the South side of said Mill Pond, where, it now lays." (This deed is examined and construed ^os<.) On the trial the plaintiff attempted to prove title to the creek east of the dam, but failed. The answer was a general denial and allegation of title and possession of the premises in dispute. On the trial the plaintiff produced as a witness S., who testified that he was a City Surveyor. That as such he had charge of the work of grading Second Avenue across this creek about thirty years before. That at Second Avenue, when he graded it there was at low tide one or two feet of water, and at high tide about eight feet. That he could not say that the creek was navigable. That they used to bring up scows and such boats in the creeek, that he could not say that he ever saw them up as far as the Third Avenue. That the tide ebbed and flowed in the creek. On the defense B. was examined as a witness, and testi- fied that he was familiar with the property in dispute and that neighberhood, and had known it for forty-three years. 73 That the creek was navigable at high tide up to within a few feet of Third Avenue ; that he had often seen sloops and canal boats there loaded with material. That he did not know whether the creek was wide enough for two of such boats to pass each other going up and down, that he did not know that he ever saw two or three in the creek at once, that there was very little water in the stream in some places at low tide, that he could not tell whether the stream was 80 or 100 feet wide, that it was very deceptive looking at water, that there were no docks in that neighborhood, that he did not know the height of the tide or amount of water, that his observation was that of a casual observer, that he had seen vessels passing up and down, boats and sailing vessels, loaded with cargoes of brick and lime, such as small sloops, that he never saw a schooner or steamboat in the creek. The learned trial judge rested his decision solely on the dteed from Benjamin Benson to Peter B. Benson, by which he held that Peter B. Benson and those claiming under him became vested with the title and possession of the premises mentioned in the deed, and gave judgment for the plaintiff from which the defendant appealed to the General Term. See this deed examined and construed, post. See printed case on appeal to the General Term. This evidence as to the character of the creek and its use for commercial purposes was not^sufficient under the com- mon law rule, to show a public navigation. See cases cited, supra. In this case the question of its navigability was not J'es jud%cat 88 Two distinct titles and part included in the first ground brief to Montague allotment to Dutch Church of part of meadows in the Bay of Hellgate 88 Conveyed to Montagne by the Indians ; and by the town ; con- veyed by Montague to Bogert-. 89 Van Oblinus claims a small section of Bogert' s meadows and claim sustained 91 Conveyed by Bogert to Johannes Benson 95 The McGown meadows defined as dryland 103 Title more than 200 years old 103 Conveyed by Margaret McGown to Edward Sandford and Sam- son, Benson McGown 103 No doubt about the title until filled in 103 Not included in the Dongan Charter to New York 104 Opinion of Richard O'Gorman, corporation counsel, as to 105 Conclusion as to the title.... 106 Mereweather Sgt.: Speech of in Attorney General v. Mayor of London, and Jerwoods reply thereto 34 Mill Camp, the 37 Montagne, De La, Johannes 31 Deed to must be construed according to the common law when given. 8 Petition of Jacob Kipp and Wm. De La Montagne to Gov. and Council in New Netherland. to establish a village 27 INDEX. 195 Montague, De La, John, Jr. : Deed to, from Magistrates of Harlem of Montagne's Point and meadows in Bay of Hell Gate and effect of same _ 30 Title carried to centre of creeks, see description 31 Interpretation of deeds to the De La Montagnes involves exami- nation of law as to tidal creeks 33 (See Tidal Creeks), the creeks or kills mentioned in these deeds were not arms of the sea or of the East river 33 Not large enough to raise presumption that they were public or navigable rivers 33 Ebb and flow of the tide in these streams cause the embarrass- ment as to rights of Riparian owners 33 This is largely* owing to misapprehension of the law relating thereto _ 33 Montagne's Flat and Point : Included in the first Harlem farm 1 Originally one farm 1 Allotted to Isaac De Forest 17 Conveyed to Andries Hudde 17 Historical references to the farm 17 The outlying lands 30 Conveyed to Dr. Johannes La Montagne, counsellor of New Netherland 31 Desolated by the Indian War 33 Ordinance establishing the village of New Hai'lem 33 The Flat set over to the village and the title to the Point con- firmed in John De La Montagne, Jr 30 For subsequent title see Meadows in the Bay of Hell Gate and McGown Marshes. Morgen : Two acres, distribution of meadows * 19, 34 Muscoota : Indian name for Harlem Plains - --. 1 Navigable streams (see Tidal Creeks): Not determined by ebb and flowof tide - - - 45 Public navigation must be open and notorious _ ib. New Harlem, villageof: Founded in 1658 - 33 Estabhshment of, related by O. Callaghan, Brodhead & Riker, Riker's account - 1 33 Ordinance in regard to.. >. , - 34 New Neth erland : Seizure of by British forces 3 Dutch relinquish title to - 3 Patent to the Duke of York - - -.. 3, 4 Commission of Gov. NicoUs. 3 Dutch and British Claims stated 3, 8 New York: Constitution of 1777 - 54 Grants by State of so far as relates to tidal waters has not been changed 54 Was adopted ten years before De Jure Maris was published.. . 55 NicoUs, Richard, Governor: Advent of British fleet and forces under, in New Amsterdam - 3 196 INDEX. Patents to Harlem granted in 1666-7, p. 10, and Appendix. Order in regard to certain Harlem meadows 85 O. Callaghan : Hist, of New Netherland extinguishment of Indian titles - - -- --- 1° Opinions ': As to title of Samson Benson (son of Johannes) to Mon- tagne's Point - 99,100 On the Harlem Patents 10 As to origin of the title to Manhattan Island.. 3,8 On deed of Town of Harlem to John De La Montagne, Senior, of Montagne's Point and Montagne's Flat 29 On deed of Town of Harlem to John De La Montagne, Junior, of Montagne's Point and adj oining meadows .- 30 On deed of Benjamin Benson to Samson Benson of Montagne's Point 103 On deed of Benjamin Benson to Peter B. Benson, of the farm on northerly side of Harlem Creek, with the Mill stream. Mill, and Mill pond 114 On deed of Benjamin L. Benson to Harriet M. Wiswell 123 On title of Margaret MoGown to the marshes in the Bay of Hell Gate. -_ ' 102 On title to Harlem Creek 81 As to the navigability of the Harlem Creeks 85 Of Judge Murray Hoffmann as to title to Harlem Creek 135 Of Richard O. Gorman, corpoi-ation counsel, that New York has no title to the McGown marshes lOB Of WiUiam C. Whitney, corporation counsel, as to the Harlem common lands. Appendix D, E and F 106 Ordinance: Of Director-General and Council to found the Village of Harlem 24 Directing inhabitants to take out ground briefs 29 Outlying lands : Access to 20 Oyster Bay : See Wadsworth, J. Parker, Gh. J.: Opinion in Commonwealth v. Charlestown, IPick. Mass.E.,179 56 Patents (see Harlem): To the freeholders and inhabitants of Har- lem, construed 12 Copies in full in Appendix C. Constituted the freeholders and inhabitants a corporation 12 The common lands invested in them as joint tenants in trust for the town 15 The second NicoUs patent a conflrmatioQ of the first 13 Peaceful Vale, or Vredendael _ 19 Montagne's farm.. 19 Peters' Reports: Martin iJ. Waddell 5 Pipon, Elizabeth : Wife of Phihp Pipon and daughter of James and Frances Carteret, inherits the Mill property no Pipon, Elias : Son of Elizabeth and Philip, inherits the Mill property, by way of entail. _ _ no INDEX. 197 Assigns all his property to Simon Johnson and others Ill Johnson, surviving assignee, conveys the Mill property to Benjamin Benson ib. Point Eecha wanes _.. 89 Questions: As to beginning of titles on Manhattan Island 3 Arising out of Dutch Grants to be construed by common law.. 8 Rechawanes : Indian name for point of land lying between Har- lem Creek and Creek at the south 1 Kex i;. Montague (4 B. and C, 598): Examined 79 Riparian Owners : See Tidal Creeks. Roberts v. Baumgarten 73 Relating to Harlem Creek ib. Compared with Rex V. Montagne 79 Neither the Harlem Patents nor the Montagne Deeds in evi- dence in that case 77 Some facts in regard to Harlem Mill Creek overlooked in that decision 79 Court of Appeals decision in that case, how to be regarded 78 Has never decided that all tidal streams are public and navi- gable 79 Round Meadow ' _ 86 Salt Marshes: Account of 42, 43 Title to creeks in, is in the owners of, ebb and flow of the tide therein does not raise a presumption that they are publici juris 43 Highly prized by the farmers 44 Sandford, Edward : Deed to by Margaret McGown, of part of the McGown marshes. 103 Savage, Ch. J. : Opinion in Rogers v. Jones (1 Wend., 338), as to lands under water at Oyster Bay 56 Schorraldn : See " Zegendal.'' Second Avenue: Established by law across Harlem Mill Creek in 1887 136 Proceedings for opening ib. Shaw, Oh. J : Opinion in Rowe v. Granite Bridge Co. (31 Pick., 344), as to ebb and flow of tide being test of a stream being public 66 Shores of the Sea: Defined.. 43 Stony Island... 14 Stuy vesant. Governor : Allotment of lands. — 39 Establishes the, Village of New Harlem on Swit's boundai-y and the Van Keulen tract, and part of Kuyter's land 33 Revokes the ground brief to Dr. John De La Montagne, of Montagne' s flat, and confirms the title in Montague's Point. 29 Summary : As to Harlem Mill Cr«ek and Mill Pond 128 "Successors:" Meaning of word in grant 15 Sutherland, J. -. Opinion in Rogers v. Jones (1 Wend.; 338), as to lands in Oyster Bay.. 56 198 INDEX. Taney, Ch. J. : (Opinion in Martin v. Waddell, 16 Peters), right of dicovery. 5 Tappan Indians : Bill of sale of Rechewanis Point to John De La Montagne - 89 Tidal Creeks : Ebb and flow of tide not always the test of a stream being public — 33 There must be public use or navigation to raise such presump- tion - - - 33 Private navigation may exist in: theory that all tidal streams prima facie, publici juris, not sustained by English com- mon law 33 The treatise De Jure Maris responsible for that theory, but does not teach the doctrine - - 33 The occasional use of small tidal streams for the passage of vessels does not of itself raise the presumption that they are public -- 33 Private property in beds of tidal waters has existed to a large extent from remote periods of -time. 33 Immemorial use the test 34, 43 Legal presumption that a stream is naviga,ble, when applicable. 38 Littoral proprietors of, in tidal waters 38 Lord Mansfield did not recognize the ebb and flow of the tide as the test 46 There must be a public navigation to show that a small stream is public ... 46 What is meant by a public navigation 46 The King has not title as universal occupier of vacant lands.. 50 Three kinds of rivers, tidal, that are navigable and not navig- able, and inland rivers 50 In England, few of the rivers in their natural conditions were navigable above the flow of the tide.. 53 The title of the King to tidal waters a common law question.. 53 The common law is the outgrowth of facts ; 53 Common law doctrine as to rights of littoral and riprai-ian pro- prietors - 53 Navigable, what are prima /acie _ _. 53 Grants bordering on private streams, construction of _. 53 If a small tidal stream has become of public use, the Court will not take judicial notice of the fact 53 The Constitution of the State of New York was adopted ten years before De Jure Maris was published, and grants must be construed according to the law existing when they were made 54, 55 Grants by the State of lands on tidal waters may pass title to the lands beyond high water mark 56 The King's title extends only to those waters which are actu- ally navigable 63 INDEX. 199 The books show few cases in which the title to the soil of salt water creeks has been involved 63 Rivulets a distinguishing feature of Manhattan Island 83 All of them filled in excepting two or three, emptying into the Harlem river . 84 The Harlem Patents having included all the creeks, the pre- sumption is that they were not public waters -^ 85 In grants of lands or private streams made by the Sovereign to a subject, the title extends to the thread of the stream unless otherwise expressed 53 Tide-way : The strip of land between ordinary high and low water mark 76 The grant of Governor Dongan to the City of New York, of the tide-way, did not include the salt marshes nor the Harlem creeks .. 76 Thurley, J. . Opinion in Elder v. Burras (6 Humph., Tenn., 366)-.. 60 Tourneur, Daniel 14 Town Records of Harlem : Show grant of the Church Meadows in the Bay of Hell Gate, to John De La Montagne, in exchange for pi'operty. (See Appendix B.) 49 Treaty of Westminster _ 3, 4 Treaty of Breda „ 4 Trustees to sell the Harlem Commons 93 Tyler on the Law of Boundaries : Rivers where the tide ebbs and flows belong to the public only in those parts which are navigable. 53 Unappropriated Lands in Harlem all disposed of 13 Van Curler Tract: Account of 19 Van Curler, Jacob: First proprietor of Van Kenlen's Hook, known as Otter Spoor, or Otter Track 1, 9 Van Kenlen'sHook 1, 19 Van Oblinus, Joost claims a small section of tlie meadows ip the Bay, from Bogert, and brings suit 91 Judgment in his favor, Appendix B 5 His farm at Hoorn Hook, adjoining Montague's, described 91 Vercher's, or Hogg Island _ 14 Van Arsdale, Peter : Husband of Wilhelmina Benson 130 Van Twiller, Wouter: Second Director-General of New Netherland 19 Van Schoonerwoert : See Bogert, John Louwe Van Tievenhoven : Secretary of New Netherland 36 Verplanck, Senator : Opinion in Canal Commissioners v. Kemps- hall (86 Wend., 404).. 54 Village of New Harlem : Founding of 33 Vooght V. Winch (3 B. and A., 663) 47 "Vredendal": Montague's farni on Harlem Flats The De Forest Farm .- 19 Woodworth, J. : Opinion in Rogers v. Jones (1 Wend., 338), as to lands under water at Oyster Bay 56 200 INDEX. WagonRoad: Tobebuilt - 35 Waldron, Resolved: Never owned Waldron farm.. 94 Waldron, Samuel: Farm of, described 94 Waldron, William (son off Samuel): Came into possession of Wal- dron Farm in 1741, and set off part of it to his brother Benja- min, and another pai-t to Jacob Le Roy ^ 94 Waldron Farm: Country seats of Astor, Gracia, Prime and Rhine- lander included in ' 94 Walworth, Chr.: Common Law of England and not the Civil Law in force in New York 7 Opinion of, in Childs ?;. Starr (4 Hill) 70 In Canal Commissioners v. The People (17 Wend., 8)-.- 6 Westminster: Treaty of , 1874 3 Whitney, William C: Corporation Counsel, Opinion of, as to Title of the City of New York, Appendix D andE 106 Wey Schut: Boat used to bring hay from the meadows 86 Woodward, J.: Opinion in McManus v. Carmichael (3 Clarke's Cases, Sup. Ct., Iowa) 60 The tide a merely arbitrary test as to navigability and appro- priation to public use . ib. Woolwych on Waters 46 York, Duke of : Patent from Charles 11 4 Commission to Nicolls 30 Yacht Rennselaerwick 17 Zegendal or Schorrakin: The farm of Jochene Peterson Kuyter, of 400 acres L __. 26 I