$2,000, indicate an unmistakable general scheme | The United States opened and constructed to create a residential section.

the streets; the lands conveyed adjoined (Ed. Note.-For other cases, see Deeds, Cent. and became a part of the grounds of the Dig. 88 450, 537, 539-541; Dec. Dig. 171(1).]

United States Armory and Arsenal which 2. DEEDS m171(1) - CONSTRUCTION

have been located there since the eighteenth


century. Where lots were sold from a tract with re- "No buildings have been erected on the said strictions indicating a general scheme and pur-tract since the United States so acquired pose to create a residential section, the words but one dwelling house shall be erected there the land and the premises together with other on" defined the use to which that dwelling lands adjoining the same to the south have should be put and not merely the form of a been kept open and have been carefully and structure, so that the restriction does not per: artistically cared for.” He had also conveymit of more than one dwelling under a single roof, or the erection of a structure designed to ed of the tract in 1848 and in February and include more than one.

April, 1863, lots at the northerly and south[Ed. Note. For other cases, see Deeds, Cent. erly corners of Spring and Pearl streets. Dig. $$ 450, 537, 539-541; Dec. Dig.

September 4, 1863, there remained to him 171(1).

of his original purchase the land on the For other definitions, see Words and Phrases, northerly side of Pearl street, that is the First and Second Series, Dwelling House.] 3. MUNICIPAL CORPORATIONS 982

tract of land thereafter designated as lots


116, 122, 138, 150, 156, 162, 168, 176. The first Under Gen. St. 1860, c. 12, § 35, requiring of these lots to be sold was 122. The deed tax deeds to be recorded within 30 days of the duly recorded contained the following providate of sale to be valid, a sale of lots by a city sion: for taxes duly assessed conveyed no title where the deed was not recorded as required.

“Provided that no building shall be erected

thereon nearer to Pearl street than twenty feet [Ed. Note.-For other cases, see Municipal and no barn nearer to said street, than six Corporations, Cent. Dig. 88 2140-2143; Dec. rods and that but one dwelling house shall be Dig. On982.]

erected thereon, or that shall cost less than two 4. MORTGAGES 534 - SALE RIGHTS OF thousand dollars or less than two stories high.

PURCHASER - RESTRICTIONS – PERSONS And it is agreed that the other lots of the BOUND.

grantor on Pearl street shall be held subject to Where a mortgage deed conveyed the prem- a similar restriction, which shall be for the benises subject to such restrictions as were placed efit of the grantee, his heirs and assigns." on lots already sold from the tract of which it was a part in pursuance to a general scheme, Upon the death of the grantee Brown, the a purchaser at the mortgage sale took title sub- premises descended to his heirs and thereject to the agreements of the mortgagor which after by mesne conveyances the title passed appeared of record.

to the plaintiff Ida C. Powers. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. $ 1555; Dec. Dig. 534.)

The next parcel sold in November, 1863,

was land lying easterly of lot 122 and westCase Reserved from Superior Court, Hamp-erly of lot 138, which tract was in 1868 diden County; Wm. Hamilton, Judge.

vided and added to lots 122 and 138 and has Actions for injunctions by Ida C. Powers since remained a part of these parcels. The and Sarah D. Stone against Edward Radding deed was duly recorded and contained the and others. Reserved on pleadings and

following provision: agreed statement of facts for the determina

"Provided and this deed is on condition that tion of the full court. Writs granted.

no building shall ever be erected or placed upChas. H. Beckwith, of Springfield, for on the premises nearer to Pearl street than

twenty feet and no barn nearer to said street plaintiffs. Ellis, Brewster & Ellis, of Spring-than six rods and that but one dwelling house field, for defendants.

shall be erected or placed thereon and that shall

cost less than two thousand dollars or shall be PIERCE, J. September 4, 1863, one Bliss less than two stories high and it is agreed that was the owner of a tract of land on the the other lots of the grantor westerly of the northerly side of Pearl street in the city restrictions and be for the benefit of both par

new gate shall when sold be subject to similar of Springfield. He had acquired his title in ties hereto their heirs and assigns.” 1832 to a larger tract out of which in 1856

The chief importance of this provision is he had conveyed to the United States be- that it marks and defines the territory which tween four and five acres with the under the grantor and grantee agreed should enstanding that the United States intended to joy the benefit and suffer the burden of the open and construct streets on the westerly restriction “as the other lots of the grantor and northerly side of the granted premises westerly of the new gate.” The next parand to which the grantor reserved to “myself cels sold were 116 in 1864, 138 in 1866, 150 my heirs and assigns of such (that is the in 1869. Each deed duly recorded contained grantor's) adjoining lands forever, the free the restriction among others: right to use the said streets for travel after

"That but one dwelling shall be erected and they shall be so made, with the right to none that cost less than two thousand dollars abut upon the same and to enter and con- or is less than two stories high." nect with them other streets from and across March 13, 1872, the grantor mortgaged the my adjoining land before mentioned, but so as remaining lots, 156, 162, 168, 176, by deed not to interfere with the grades of the Unit- with power of sale and containing the foled States roads hereafter to be constructed." 'lowing provision:

a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

“Subject to such rights of drainage or aqueduct as any of my assigns may have now in said premises and subject to such restriction as to placing buildings thereon as I have stipulated and made in my previous conveyances on record of lots on said street.”

The mortgage was later duly foreclosed by sale and by mesne conveyances the parcel above referred to as No. 156 became the property of Vrylena McClean, the property above referred to as No. 162 became the property of the defendant Edward Radding, the parcel designated above as No. 168 became fine property of the defendant Edward Radding and the parcel designated as No. 176 became the property of the plaintiff Stone.

[1] We think the proximity of the property to the grounds of the United States Armory and Arsenal with the reasonable probability that they would perpetually remain open and be carefully and artistically cared for, the provisions that no barn shall be nearer to the street than six rods, that but one dwelling shall be erected on any One lot and that none shall be erected nearer to the street than twenty feet or cost less than two thiusand dollars, indicate an unmistakable general scheme and purpose to create a residential section which should benefit the owners of each lot and give them as owners of homes good neighbors and clean and beautiful and artistic surroundings.

[2] We are also of opinion in view of the language of the deeds themselves in COnnection with the surrounding circumstances that the deeds were executed, delivered and received with the intention that the words “but one dwelling house shall be erected thereon” should define the use to which that dwelling should be put and not merely the form of a Structure.

So construed the restrictions do not permit of more than one dwelling under a single roof or the erection of a structure, as for example an apartment or a flat, designed to include more than one. See Gillis v. Bailey, 21 N. H. 149; Rogers v. Hosegood, 69 L. J. Ch. Div. 652; Harris v. Roraback, 137 Mich. 292, 100 N. W. 391, 109 Am. St. Rep. 681.

The defendant derives his title by meSne conveyances from one Hawkes who purchased and received lot 168 at a sale under a power of sale contained in a mortgage deed to the Springfield Institution for Savings, October 22, 1879. This mortgage conveyed the premises “subject to such restrictions as to placing buildings thereon as were made by Bliss in conveyances previous to and on record before said mortgage” of lots in said Street.

[3] The sale of lots 156, 162, 168, and 176 to one Lee, who afterward acquired the title of Hawkes, by the city of Springfield in 1878 for taxes duly assessed for the year 1877 conveyed no title because the provisions of Gen. St. c. 12, § 35, as to recording the deed were not followed.

[4] It is well settled that restrictive agreements and Covenants of deeds whether benefits reserved or burdens imposed will pass to and bind the respective assignees With actual or Constructive notice. Parker v. Nightingale, 6 Allen, 341, 83 Am. Dec. 632; Whitney v. Union Ry. Co., 11 Gray, 359, 71 Am. Dec. 715; Hano v. Bigelow, 155 Mass. 341, 343, 29 N. E. 628; Stewart v. Finkelstone, 206 Mass. 29, 92 N. E. 37, 28 L. R. A. (N. S.) 634, 138 Am. St. Rep. 370; Tulk v. Moxhay, 2 Phillips, 774. The defendants contend that as the mesne ConVeyances to him were without restrictions and as lots 156, 162, 168 and 176 were not divided when mortgaged the mortgagor, Bliss, “did not intend and he could not reaSonably be held to have intended to restrict the mortgaged tract against more than one dwelling house.” An examination of the records of the conVeyances of Bliss would have disclosed the agreement contained in the deed to Brown, lot 122, and in that to Clyde (parts of lots 122 and 138) that the other lots, that is to Say the parcels that shall from time to time be carved out of the remaining lot of the grantor westerly of the new gate “shall when sold be subject to similar restrictions for the benefit of both parties hereto their heirs and assigns.” The purchaser at the mortgage sale took Subject to the agreements of the mortgagor which appeared of record and under the power. This was sufficient notice. Peck v. Conway, 119 Mass. 546, 549. The fact that the mortgagee under the power carved out and sold separately four lots from the single lot mortgaged could not free the individual lots then conveyed from the burden of the restrictions in the hands of a purchaser with notice of the agreement of Bliss. King v. Dickeson, L. R. 40 Ch. D. 596. These conveyances could stand no more free from the burden of the restrictive agreement than they would had they been by direct conveyance from Bliss. It is to be observed that no apartment house has ever been constructed within the restricted district; that a dwelling house, Occupied by one family has been built on each lot and that no change in the locality has arisen to make the section less desirable as a place of residence. These facts distinguish the facts of the case at bar from those in Jackson v. Stevenson, 156 Mass. 496, 31 N. E. 691, 32 Am. St. Rep. 476. It follows that the plaintiffs are entitled to a writ of injunction perpetually enjoining and restraining said defendants and each of them, their servants and agents from Constructing, building, erecting and maintaining a building which shall be other than a dwelling house for one family. So ordered.

(219 N. Y. 145)

into the lot south of plaintiff's land claimed CALKINS v. HART.

by defendant, the northerly line of said lot (Court of Appeals of New York. Oct. 3, 1916.) running east about 25 chains from the shore WATERS AND WATER COURSES 111-Non- of the lake to the highway. This action was NAVIGABLE WATERS-BOUNDARIES.

in trespass by reason, as alleged by plaintiff, Where a nonnavigable lake two-thirds of a of an unlawful entry by defendant upon the mile long and one-third of a mile wide was regu- lake in question and cutting and removal of lar in line, as between adjoining riparian owners, each took title ad medium filium aquæ in ice from that portion of the lake directly west proportion to his line on the margin in front of of plaintiff's land and north of the boundhis upland, according to straight lines drawn ary of the land claimed by defendant. The at right angles between the side lines of his land on the shore and the center line of the trial justice submitted the case to the jury, stream.

and instructed them that plaintiff owned the [Ed. Note. For other cases, see Waters and land east of the center of the lake and north Water Courses, Cent. Dig. $ 120; Dec. Dig. of his south line extended, and if the jury 111.)

found that defendant cut any ice in that porWillard Bartlett, C. J., and Cardozo, J., dis- tion of the lake, he was a trespasser. The genting.

jury found a verdict in favor of plaintiff. Appeal from Supreme Court, Appellate Di. The trial justice held that plaintiff could not, vision, Fourth Department.

under the proofs offered, establish title to Action by Mary E. Calkins, as administra- all lands under water to the westerly side trix of James H. Calkins, deceased, against of lot No. 33, but had established title to the James M. Hart. From a judgment of the thread of the stream. Defendant claimed the Appellate Division (164 App. Div. 909, 148 right to establish an interest in the lake and N. Y. Supp. 1108), affirming judgment of the land under water to the geographical the Trial Term for plaintiff, defendant ap that each owner on the lake was entitled

center of the body of water, and asserted peals. Affirmed.

See, also, 64 Misc. Rep. 149, 118 N. Y. Supp. to a triangular parcel of land under water, 1049.

with its apex at such center and the base on

the shore line of his property by reason of Louis C. Rowe, of Oswego, for appellant. the oval shape of the lake. Evidence was L. W. Baker, of Oswego, for respondent.

adduced by defendant to locate such geo

graphical center. The trial justice held that HOGAN, J. Lot No. 33 in the township each abutting owner was entitled to the land of Hannibal, Oswego county, as distinguished under water to a line drawn through the on a map of the military township contained longest diameter of the lake, and in that 600 acres. Lying in the westerly side of said conclusion, affirmed by the Appellate Divilot No. 33 and extending a short distance sion, we concur. Though the body of water westerly outside the west line of said lot is in question is oval in shape, an examination a small body of water, oval in shape, without of the Loomis map discloses the shore line inlet or outlet, about two-thirds of a mile to be quite regular. By extending the boundin length and half as broad. About five ary lines of the land of the plaintiff on the sixths of the water is upon lot No. 33. In south side into the lake to the thread of the 1850, one Loomis, a surveyor, made a map stream, and then following northerly the of lot No. 33 and filed the same in Oswego thread of the stream to the head of the lake county clerk's office. The numbers of the would result in an allotment to plaintiff of. subdivisions appearing on an earlier map only such portion of the lake as the shore were changed upon the Loomis map, and con- line of his premises discloses would be fair veyances after 1850 were made with refer- and proportionate, while the divisions by u ence to the Loomis map. The water of the geographical center, as asserted by defend. "Spring or Mud Lake,” so called, is describ- ant, would give to him an unfair proportion ed as pure, and quantities of moss and ice of the lake to the detriment of plaintiff and are annually taken from the same for com- other riparian owners. mercial purposes.

In this state and in most of other juris. The plaintiff by deed dated December 28, dictions where the common-law rule obtains 1906, obtained title to 91 acres of land in the rule has been established that as be lot No. 33, bounded on the north by lands tween adjoining owners on nonnavigable of Vorse and Barnes and the north line of streams and rivers, each owner takes title lot No. 33, on the east by the highway, ad medium filium aquæ, in proportion to his on the south by the land of Baker, now line on the margin in front of his upland claimed by defendant, and on the west by according to straight lines drawn at right. the west line of great lot No. 33 according angles between the side lines of his land on to the map made by Loomis. The land thus the shore and the center line of the stream. conveyed covered the land surrounding the The decisions of our courts relating to the northerly end of the lake in lot No. 33 and ownership of land under water in inland about three-quarters the length of the lake lakes are founded upon the principles of law on the easterly side thereof. A small portion applicable to rivers. Smith v. City of Rochof the lake, at the southerly end, extended ester, 92 N. Y. 463, 44 Am. Rep. 393; Gour.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

113 N.E.-50

erneur v. National Ice Co., 134 N. Y. 355, 31 Charles II to the Duke of York, and so did not N. E. 865, 18 L. R. A. 695, 30 Am. St. Rep. include the bed of the river. 669; Ledyard v. Ten Eyck, 36 Barb. (N. Y.) Waters, Cent. Dig. &$ 212-215; Dec. Dig. Om

[Ed. Note. For other cases, see Navigable 102; Deuterman v. Gainsborg, 9 App. Div.

37(7).] 151, 41 N. Y. Supp. 185. As pointed out in 3. EMINENT DOMAIN Cm 238(7) – DETERMINAthe very illuminating opinion written by the

TION OF DAMAGES-REVIEW-REVERSAL AND trial justice in this case, 64 Misc. Rep. 149, REMAND. 118 N. Y. Supp. 1049, the question has arisen

The part of the determination of the Board in some jurisdictions when the body of waterditional award was for damage to the ordinary

it was so irregular that a division of rights riparian rights of claimants from the taking of therein upon the rule prevailing in this state land between their remaining lands and the river, would seem inequitable, but the facts in this or on the erroneous assumption that they were case are clearly distinguishable from the de- versed, and the matter remitted for determina

the owners of the bed of the river, will be recisions made where such difficult situations tion and award of any damages for interference were involved. In this state may be found with ordinary riparian rights through the takmany inland lakes of varying size and shape. ing. It would be well-nigh impossible to lay

[Ed. Note. For other cases, see Eminent Dodown a general rule applicable alike to all of main, Cent. Dig. $8 674, 687; Dec. Dig. En

238(7).] them, as each case depends upon its own peculiar circumstances and facts. The case

Appeal from Supreme Court, Appellate Diat bar is not out of the ordinary. The body

vision, Third Department. of water under consideration is legally a

Proceeding by Samuel A. Danes and annonnavigable stream, its length is double the other against the State of New York. From width of the same, the shore line practically a judgment of the Appellate Division (169 unbroken by coves or bays, the lot lines App. Div. 443, 154 N. Y. Supp. 1089), affirmbounding the same at right angles with the ing a determination of the Board of Claims stream. A line drawn through the center in favor of claimants, the State appeals. Reof the stream north and south equitably and versed, and remitted for further determina

tion. proportionately gives to each riparian owner an interest to that line in the water or Egburt E. Woodbury, Atty. Gen. (Wilber the land thereunder without undue advan- W. Chambers, Dept. Atty. Gen., of counsel), tage over his neighbor. Should the present for the State. De Witt Ostrander, of Clinshore line at some future date be extended tondale, for respondents. uniformly into the lake by alluvion, even midway to the thread of the stream, as it is COLLIN, J. The question presented here located at the present time, the allotment by the arguments of counsel is, Are the remade by the trial justice in this case would spondents entitled to have added to the sum be justified. People ex rel. Cornwall v. Wood- of the compensation awarded for land owned ruff, 30 App. Div. 43, 51 N. Y. Supp. 515, by them in Schenectady county, contiguous affirmed on opinion below, 157 N. Y. 709, to the Mohawk river and taken for the barge 53 N. E. 1129.

canal, a sum as compensation for the land, The judgment should be affirmed, with connected with those uplands, under and to costs.

the center line of the river? The determina

tion of the Board of Claims awarded the adCHASE, COLLIN, and CUDDEBACK, JJ., ditional compensation by this language: concur. WILLARD BARTLETT, C. J., and "And that said claimants are entitled to recovCARDOZO, J., dissent.

er from the state of New York $1,000, in addi

tion to the above sum of $8,050, by reason of Judgment affirmed.

the appropriation by the state of the land comprising the bed of the Mohawk river to the thread

or center of the stream opposite the premises of (219 N. Y. 67)

claimants as shown in the appropriation maps;

said award of $1,000 being intended to DANES et al. v. STATE.

cover all other rights growing out of the own(Court of Appeals of New York. Oct. 3, 1916.) ership of said land in the bed of the Mohawk riv

er and all riparian rights appurtenant to the 1. NAVIGABLE WATERS 1(3) TESTS OF premises appropriated." NAVIGABILITY. For a river to be navigable it need not be

The Appellate Division by a divided court deep enough to admit the passage of boats at ali affirmed the determination. portions of it.

The appropriation maps of the state un[Ed. Note.-For other cases, see Navigable Wa- der which, pursuant to section 4 of the ters, Cent, Dig. 8 7; Dec. Dig. Om1(3).]

Barge Canal Act (Laws of 1903, c. 147), title 2. NAVIGABLE WATERS 37(7)


to the uplands of the claimants was acquirBED OF RIVER-FOREIGN GRANTS.

ed by the state, bounded the uplands by, and A grant of land by the British crown, though did not show any lands within or under, the in 1708, before the state became its successor river. The state, therefore, did not directly in title,'fixing the Mohawk river as a boundary, and expressly take any of the bed of the rivwas with reference to and regulated by the com- and expressly take any of the bed of the rivmon law as adopted and administered in the col- er.

The claim of the respondents that the ony, under authority of the charter of 1664, from state has nevertheless, appropriated the bed

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of the river to its center, touching the lands described in the maps, rests upon two asSertions: The one, that the appropriation of the bank of the river was, by operation of law, the appropriation of the contiguous bed to its center; the other, that the appropriation of the bank was a taking of the bed, because it absolutely destroyed, as to the respondents, all means of access to and potential uses of it and of the waters flowing Over it. [1] In connection with and as an essential element of the first assertion, it is further asserted that the river is nonnavigable—an assertion we do not accept. We hold, for the purposes of this action, that it is conclusively established by colonial and state legislation and judicial decisions that it is navigable. This conclusion is adequately Supported by a reference to certain of the decisions. People ex rel. Loomis v. Canal Appraisers, 33 N. Y. 461; Canal Appraisers v. People, 17 Wend. 571; Williams v. City of Utica, 217 N. Y. 162, 111 N. E. 468. In Order to be navigable, it is not necessary that it should be deep enough to admit the pasSage of boats at all portions of the stream. St. Anthony Falls Water Power Co. v. St. Paul Water Commissioners, 168 U. S. 349, 18 Sup. Ct. 157, 42 L. Ed. 497; Morgan v. King, 35 N. Y. 454, 91 Am. Dec. 58. Jt is obvious, moreover, that neither of the two assertions is well founded or tenable in case the respondents had not title to or ownership in the bed of the river. Whether or not they had the title or ownership is therefore a fundamental question. [2] The source of the respondents' title is a grant, describing the uplands. and bounding them by the river, from Queen Anne in October, 1708, and, therefore, before the organization of the state and the succession of its people to all the rights of the British crown to lands within its territorial jurisdiction. The case presents the question, whether or not the original royal grant carried title from the English sovereign to the grantee running to the center of the Mohawk river, when the grant fixed the river as a boundary of the land So granted. The rule of the common law of this state (enlarging or extending that of England) that the title to the bed of navigable rivers, not tidal, passed to the grantees of the adjacent banks has not heretofore been applied to the grants of the banks of the Hudson and Mohawk rivers. Williams v. City of Utica, 217 N. Y. 162, 111 N. E. 468; Fulton Light, Heat & Power Co. v. State of New York, 200 N. Y. 400, 413, 94 N. E. 199, 37 L. R. A. (N. S.) 307; Smith v. City of Rochester, 92 N. Y. 463, 44 Am. Rep. 393; People ex rel. Loomis v. Canal Appraisers, 33 N. Y. 461. Thus much the respondents do not attempt to refute or avoid. Their assertions and arguments are: The grant by Queen Anne was in 1708. The lands granted Were located above the ebb and flow of the tide, and were bounded by

the river. The effect and extent of the grant is controlled and defined by the Common law of England as it then existed and was administered in England, and thereby all fresh-water rivers were unalterably declared nonnavigable, and the title of their beds was in the owners of the adjacent banks, the Owners of each side taking to the center, or usque ad filum aquae. The royal grant, therefore, conveyed to its grantee the bed of the river connected with the uplands to its center. It follows, necessarily, that the British crown, having granted in 1708 the bed of the river to the predecessor in title of the respondents, could not have transferred or surrendered title to it to the people of the State. The assertions and arguments ignore or thrust aside two established facts: The One, that New York, as a proprietary or crown Colony or as a state has not at any time adopted or administered in its complete integrity the common law of England. While it has been from the beginning the fundamental law, it, in accordance with a general principle, potent in extending and maintaining the imperial rule and power of Great Britain, yielded to the local conditions and circumstances of the new territory and its people. The charter of March 12, 1664, by King Charles II to his brother James, Duke of York, authorized the establishment of laws, orders, ordinances, directions, and inStruments— “not contrary to, but as neare as conveniently may be Agreeable to the Laws, Statutes & Government of this Our Realme of England.” The colonial courts exercised a sovereign authority in determining what part of the common law of England was to be adopted by the colony. The colonial legislation and judicial decisions and the state Constitutions recognized and applied the general principle. The other fact is that the law of New York, as a Colony and as a state, has consistently declared through legislation and judicial decisions that the rule that the owner of the contiguous bank of a nontidal navigable river owns to its center is not, for certain exceptional reasons, applicable to the Mohawk river and parts of the Hudson river. In Canal Appraisers v. People, 17 Wend. 571, 609, the opinion of Senator Beardsley states:

“The evidence establishes the fact most conclusively that, not only the colonial government, but the state authorities, have considered the bed of the Mohawk as belonging to the public and not to individuals, or that the common-law principle, that the owner of the adjacent lands is entitled to the bed of the river, has not been considered as applicable to the Mohawk.”

In Fulton Light, Heat & Power Co. v. State of New York, 200 N. Y. 400, 413, 94 N. E. 199, 202 (37 L. R. A. [N. S.] 307), Judge Gray, in considering the common-law rule of this state as to riparian ownership of the beds of fresh-water streams, said:

“In our state, there were to be considered, in applying the common-law rule [of England], the extent to which our fresh-water rivers and lakes

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