peals. It matters not, therefore, how many times a jury may render a verdict upon this evidence. A judgment based thereon should not be permitted to stand, if the court discharges its duty."

The decision in that case, however, was based on the failure of the plaintiff to make out a case. The statement that "the jury had no right to render such a verdict" is in effect a decision that as matter of law there was not sufficient evidence upon which to base the verdict of the jury. That such was the meaning of the decision is shown by a later decision rendered by the same tribunal in Bertolami v. U. S. Eng. Co., 132 App. Div. 804, 117 N. Y. Supp. 826, where, in a learned opinion written by Mr. Justice Scott, the court, in refusing to set aside a third verdict in favor of the plaintiff, says: "The plaintiff has thrice recovered a verdict for damages, and we have twice reversed the judgment in her favor. Three juries have found in plaintiff's favor, and, in my opinion, it is too late to question their findings on the facts."

In the case at bar, the court, in denying the motion, made by defendant at the close of plaintiff's case, to dismiss on the ground that the plaintiff had failed to make out a cause of action, and failed to show any negligence on the part of the defendant, and had failed to show himself free from contributory negligence, decided that the evidence was sufficient for the submission of these disputed questions of fact to the jury, and the finding of three successive juries on these disputed questions of fact should be deemed conclusive, in the absence of any circumstances tending to show that this jury was actuated by passion, prejudice, or corrupt motive.

-Unless the system of trial by jury is to be entirely overthrown, there must be a point where the determination of a jury on questions of fact shall no longer be interfered with by the court. The power vested in a trial court to set aside a manifestly unjust verdict, where it is clearly the result of passion, prejudice, or corruption, was not intended as establishing the proposition that the verdict of a jury on questions of fact shall not be permitted to stand, unless it is in harmony with the views of the justice presiding...

[2] Section 2, art. 1, of the state Constitution, in providing that trial by jury "in all cases where it has been heretofore used shall remain inviolate forever," meant that questions of fact shall be determined by juries, and not by the court.

"There can be no justification, where there is evidence to support a proposition, to continually set aside the verdict of juries until a jury happens to be found to agree with the trial court." Ridgely v. Taylor Co., 126 App. Div. 304, 110 N. Y. Supp. 665, opinion by Mr. Justice Woodward.

"As the jury are the final arbiters of the facts, the court must, after affording them reasonable opportunities to compare their own opinions of the fact with those held by the appellate courts, finally accept the judgment of the jury." Dorwin v. Westbrook, 11 App. Div. 394, 42 N. Y. Supp. 1123.

"The time has come where interference with the verdict in this action by a trial justice would not only be contrary to well-considered precedent, but subversive of the fundamental theory of our system of procedure." Quick v. American Can Co., opinion by Mr. Justice Sawyer, affirmed on appeal to Appellate Division in 146 App. Div. 939, 131 N. Y. Supp. 1140.

919

See, also, opinion of Mr. Justice Martin in McDonald v. Met. St. Ry. Co., 167 N. Y. 71, 60 N. E. 282.

The order setting aside the verdict of the jury herein should therefore be reversed, and the judgment reinstated, with costs to the appellant. All concur.

(78 Misc. Rep. 203.)

SOMERVILLE et al. v. CITY OF NEW YORK et al.

(Supreme Court, Special Term, Kings County. November 1, 1912.)

1. ESTOPPEL (§ 90*)—ADMINISTRATIVE PROCEEDINGS-TAXATION.

The city of New York, by treating certain land under Gravesend Bay as belonging to persons deriving title from the state and taxing it accordingly, did not estop itself from claiming the land under the bay as belonging to the city.

[Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 242-244, 248256; Dec. Dig. § 90.*]

* * creekes,

*

2. NAVIGABLE WATERS (§ 37*)-LAND UNDER WATER-GRANTS-CONSTRUCTION. On December 16, 1645, Gov. Kieft granted to Lady Deborah Moody and others land which subsequently became the township of Gravesend, described as "a Certaine quantitie or parcel of land, together with all ye * marshes and all other appurtenances havens, thereunto belonging, lyeing and being uppon and about ye Weastermost parte of Longe Island, and begining att ye mouth of a Creek adjacent to Coneyne Island and being bounded on ye Westward parte thereof with ye land appertaining to Anthony Johnsonn and Robert Pennoyre and soe to runn as farre as the westermost parte of a Certaine pond in an ould Indian field." After years of dispute and litigation as to the boundaries of the town of Gravesend, it received on July 1, 1670, a confirmatory grant from Gov. Lovelace, which granted certain land, "together with * including all the land the Inheritance of all Couney Island, within a lyne stretching from the westermost parte of the said Island unto the southermost parte of Anthony Jansens old Bowerye their east bounds being the Strome Kill which comes to the Marsh or flye of * as also the meadow ground and upMathew Gerretsons land, land not specified in their former Pattent concerning wch there have been severall disputes and differences betweene the Inhabitants of the With all havens harbours * * * heresaid Towne and their neighbour, and all other ditaments to the said Towns Tract of Land Island and premises within the lymitts & bounds aforementioned." Held, that the several grants gave to the town title to the land under Gravesend Bay between a straight line running in a northeasterly direction from the westerly point of Coney Island to the southermost part of Anthony Jansen's land. [Ed. Note. For other cases, see Navigable Waters, Cent. Dig. §§ 201226, 285; Dec. Dig. § 37.*]

*

*

* waters

*

* * fishing

3. BOUNDARIES (§ 33*)-CONSTRUCTION-STRAIGHT LINES.

A line described in a deed as running from one monument to another is presumed to be a straight line, in absence of other description.

[Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 146-152; Dec. Dig. § 33.*]

.4. WATERS AND WATER COURSES (§ 93*)-BOUNDARIES-MONUMENTS-MOVEMENT BY ACCRETION.

A monument or call cannot be moved by accretion, though title to the land formed may be.

[Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. §§ 96-103, 106, 107; Dec. Dig. § 93.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

5. EVIDENCE (8 67*)-JUDICIAL NOTICE.

While it may be common knowledge that the shores of Gravesend Bay near the former town of Gravesend and Coney Island have shifted materially within the memory of man and within the last 200 years, in absence of contrary proof it must be assumed that the present existing physical conditions are as they always were.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 87, 88, 103; Dec. Dig. 67.*]

6. NAVIGABLE WATERS (§ 36*)-LANDS UNDER WATER-TITLE-EVIDENCE. In a suit to restrain New York City from interfering with the erection of a bulkhead on land under Gravesend Bay, involving whether the land under the bay belonged to the state or to New York City, evidence held to show that, from 1686 until the merger of the town of Gravesend with the city of Brooklyn, the town claimed the rights in the bay and exercised ownership over parts of it.

[Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 180200; Dec. Dig. § 36.*]

7. ESTOPPEL (§ 93*)—AGAINST MUNICIPALITY-ADMINISTRATIVE PROCEEDINGS. The opening and grading of an avenue, and placing of property upon the assessment roll and tax maps, and acquiescing in improvements upon land under the waters of Gravesend Bay, which was obtained by state grants, would not estop New York City and its grantees from claiming the land under Gravesend Bay as belonging to the city, and not to the state.

[Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 264-275; Dec. Dig. § 93.*]

Action by Edward L. Somerville and another against the City of New York and Calvin Tomkins, as Commissioner of Docks of the City of New York. Judgment for defendants.

Somerville & Somerville, of Brooklyn, for plaintiffs.

Archibald R. Watson, of New York City, Corp. Counsel, for defendants.

CRANE, J. While this action is brought to restrain the city of New York and the commissioner of docks of said city from interfering with the erection and construction of a bulkhead by the plaintiffs on their land under water, it is really an action to determine whether the land under water in Gravesend Bay belongs to the state of New York or to the city of New York as the successor to the town of Gravesend. Gravesend Bay is formed by a neck of land running out on the south known as Coney Island, and bounded on the east and north by Gravesend and New Utrecht. It is by no means a land-locked harbor or bay, but is part of New York Harbor or Bay, curving to the southeast into the mainland, and protected from the ocean on the south by this Coney Island neck. The claim of the town to that part of the bay surrounded on the three sides by the township lands, which include Coney Island, is based entirely upon colonial grants and the acts of user thereunder.

The importance of this question is at once apparent when it is stated that, beginning with 1897, the state of New York has made numerous grants of land under water in Gravesend Bay adjoining For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the north shore of Coney Island, and that these lands have been filled in and improved into streets and building sites. A portion of what is known as Sea Gate has been developed upon land thus filled in.

[1] While the city of New York has treated this property as belonging to the persons deriving title from the state, and has assessed and taxed it accordingly, yet this does not create such an estoppel as to prevent the city from now making claim of ownership. McFarlane v. Kerr, 10 Bosw. 249; Consolidated Ice Co. v. City of New York, 166 N. Y. 92-101, 59 N. E. 713. It is therefore necessary to refer to these ancient patents to ascertain whether the town of Gravesend received by grant the land under water in Gravesend Bay.

[2] The Lovelace patent of July 1, 1670, and the Dongan patent of 1686, upon which the claim of the town is chiefly based, are better understood in the light of previous grants and litigations. Following Gov. Kieft's patent to Anthony Jansen in 1643, and a grant to Robert Penoyer on November 29, 1645, both covering property to the north and west of that claimed by Gravesend, the same governor on December 16, 1645, granted to Lady Deborah Moody and other patentees land which subsequently became the township of Gravesend. The description therein pertinent to this inquiry is as follows:

"A Certaine quantitie or parcel of land, together with all ye havens, harbours, rivers, Creekes, woodland, marshes and all other appurtenances thereunto belonging, lyeing and being uppon and about ye Weastermost parte of Longe Island, and begining att ye mouth of a Creek adjacent to Coneyne Island and being bounded on ye Westward parte thereof with ye land appertaining to Anthony Johnsonn and Robert Pennoyre and soe to runn as farre as the westermost parte of a Certaine pond in an ould Indian field," etc.

Passing by the Indian deeds, which are so uncertain in terminology and description as to be of little value, we come to the Nicoll patent to the town of Gravesend in 1668, a confirmation of the Kieft patent; the description pertinent being the same as above quoted. Between the grantee of the adjoining land, Anthony Jansen, and the town of Gravesend, there arose a dispute as to a neck of land lying between Mill creek and Gravesend Bay and forming part of the easterly shore of that bay. This dispute resulted in a petition to the Director General and Council of New Netherlands, who in June, 1656, proceeded to Gravesend to inspect the property and settle boundaries. This was followed in a few days by a judgment of the Director General and Council of the New Netherlands declaring that the patent of Gravesend begins at the kill or creek next to Coney Island, and not at the middle of the bay, and stretches thence, not along the shore of the bay, but to the point where the land of Anthony Jansen and Robert Penoyer join each other; that is, that the line of Gravesend patent ran along Mill creek, and not along the shore of the bay.

No doubt much of this dispute between Jansen and the town of Gravesend was due to the uncertainty in fixing the starting point

of the latter's grants. It will be noticed that the Kieft and Nicoll patents read:

"Begining att ye mouth of a Creek adjacent to Coneyne Island."

Where this creek was cannot now be determined, and is not shown upon any of the early maps. The map of the town of Gravesend (Defendant's Exhibit JJ) shows only Mill creek; the map of 1788 (Exhibit II) shows two creeks south of Mill creek; while Plaintiff's Exhibit 23 shows a different formation altogether. If the grants to the town of Gravesend rested here, it would be quite certain that no judgment could be given awarding the town land under water in Gravesend Bay, as it could not be determined where the starting point or creek adjoining Coney Island was located.

Evidently the judgment above referred to was not acquiesced in by the town, for Jansen again complained that his rights were being interfered with by the people of Gravesend, and a commission was appointed to examine into the boundary question, which resulted in an order being made directing the survey of Anthony Jansen's land and the drawing of a line from the mouth of the kill to the easternmost part of Anthony Jansen's line. This was not along the shore front, but inside and along the creek. Another judgment was given in council, dated August 29, 1656, determining the boundaries as theretofore settled and as above stated. Even then the dispute was not terminated, as in 1669 Francis Brown, Jansen's successor in title, and the inhabitants of Gravesend submitted their differences over the boundary to the governor, before whom it was claimed by the township that their western boundary in the grant from Gov. Kieft

"begin at the mouth of a smale creeke on Coney Island whence a line being drawne north and by east to Anthony Janssen land it doth fully comprehend within it the meadow ground or valley in dispute."

In reply to this claim it was stated:

"Neither doth it fully appeare (if allowed) which is the Mouth of the Creeke upon Coney Island from whence their lines is to be stretched, other Creekes appearing, which may more probably bee given the denomination of Creeks, then that which they so much urge and if so then their pretensions by that westerly line are cutt of."

The decision upon this hearing was rendered on the 23d of August, 1669, to the effect that both parties should enjoy a portion of this neck or meadow in dispute, unless, thinking themselves aggrieved, they sue for redress at the next Court of Assizes. The parties resorted to litigation, where a verdict for Brown, the defendant in the suit, was set aside. Evidently intending to end all further questionings and litigations, the inhabitants of Gravesend and Francis Brown on the 29th day of April, 1670, entered into an agreement regarding this neck of land, running the town line up through the creek, but giving the inhabitants of the town the right to pass over the neck of land to reach the bay for fishing and fowling purposes.