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

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4. MORTGAGES 534 - SALE RIGHTS OF PURCHASER RESTRICTIONS - PERSONS BOUND.

the streets; the lands conveyed adjoined and became a part of the grounds of the United States Armory and Arsenal which have been located there since the eighteenth

century.

"No buildings have been erected on the said tract since the United States so acquired the land and the premises together with other lands adjoining the same to the south have been kept open and have been carefully and artistically cared for." He had also conveyed of the tract in 1848 and in February and April, 1863, lots at the northerly and southerly corners of Spring and Pearl streets.

September 4, 1863, there remained to him of his original purchase the land on the northerly side of Pearl street, that is the tract of land thereafter designated as lots 116, 122, 138, 150, 156, 162, 168, 176. The first of these lots to be sold was 122. The deed duly recorded contained the following provision:

"Provided that no building shall be erected thereon nearer to Pearl street than twenty feet and no barn nearer to said street, than six rods and that but one dwelling house shall be erected thereon, or that shall cost less than two thousand dollars or less than two stories high. And it is agreed that the other lots of the grantor on Pearl street shall be held subject to a similar restriction, which shall be for the benefit of the grantee, his heirs and assigns."

Where a mortgage deed conveyed the premises subject to such restrictions as were placed on lots already sold from the tract of which it was a part in pursuance to a general scheme, a purchaser at the mortgage sale took title sub-premises descended to his heirs and thereject to the agreements of the mortgagor which

appeared of record.

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Case Reserved from Superior Court, Hampden County; Wm. Hamilton, Judge.

Actions for injunctions by Ida C. Powers and Sarah D. Stone against Edward Radding and others. Reserved on pleadings and agreed statement of facts for the determination of the full court. Writs granted.

Chas. H. Beckwith, of Springfield, for plaintiffs. Ellis, Brewster & Ellis, of Springfield, for defendants.

PIERCE, J. September 4, 1863, one Bliss was the owner of a tract of land on the northerly side of Pearl street in the city of Springfield. He had acquired his title in 1832 to a larger tract out of which in 1856 he had conveyed to the United States between four and five acres with the understanding that the United States intended to open and construct streets on the westerly and northerly side of the granted premises and to which the grantor reserved to "myself my heirs and assigns of such (that is the grantor's) adjoining lands forever, the free right to use the said streets for travel after they shall be so made, with the right to abut upon the same and to enter and connect with them other streets from and across my adjoining land before mentioned, but so as not to interfere with the grades of the United States roads hereafter to be constructed."

Upon the death of the grantee Brown, the after by mesne conveyances the title passed to the plaintiff Ida C. Powers.

The next parcel sold in November, 1863, was land lying easterly of lot 122 and westerly of lot 138, which tract was in 1868 di

vided and added to lots 122 and 138 and has

since remained a part of these parcels. The deed was duly recorded and contained the following provision:

"Provided and this deed is on condition that no building shall ever be erected or placed upon the premises nearer to Pearl street than twenty feet and no barn nearer to said street than six rods and that but one dwelling house shall be erected or placed thereon and that shall cost less than two thousand dollars or shall be less than two stories high and it is agreed that the other lots of the grantor westerly of the restrictions and be for the benefit of both parnew gate shall when sold be subject to similar ties hereto their heirs and assigns."

The chief importance of this provision is that it marks and defines the territory which the grantor and grantee agreed should enjoy the benefit and suffer the burden of the restriction "as the other lots of the grantor westerly of the new gate." The next parcels sold were 116 in 1864, 138 in 1866, 150 in 1869. Each deed duly recorded contained the restriction among others:

"That but one dwelling shall be erected and none that cost less than two thousand dollars or is less than two stories high."

March 13, 1872, the grantor mortgaged the remaining lots, 156, 162, 168, 176, by deed with power of sale and containing the following provision:

"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 the 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 thousand 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 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 free the individual lots then conveyed from lots from the single lot mortgaged could not 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)

CALKINS v. HART.
(Court of Appeals of New York. Oct. 3, 1916.)
WATERS AND WATER COURSES 111-NON-
NAVIGABLE WATERS-BOUNDARIES.

Where a nonnavigable lake two-thirds of a mile long and one-third of a mile wide was regular in line, as between adjoining riparian owners, each took title ad medium filium aquæ in proportion to his line on the margin in front of his upland, according to straight lines drawn at right angles between the side lines of his land on the shore and the center line of the

stream.

into the lot south of plaintiff's land claimed by defendant, the northerly line of said lot running east about 25 chains from the shore of the lake to the highway. This action was in trespass by reason, as alleged by plaintiff, of an unlawful entry by defendant upon the lake in question and cutting and removal of ice from that portion of the lake directly west of plaintiff's land and north of the boundary of the land claimed by defendant. The trial justice submitted the case to the jury, and instructed them that plaintiff owned the land east of the center of the lake and north of his south line extended, and if the jury found that defendant cut any ice in that por

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 120; Dec. Dig. 111.] Willard Bartlett, C. J., and Cardozo, J., dis- tion of the lake, he was a trespasser. The senting.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Mary E. Calkins, as administratrix of James H. Calkins, deceased, against James M. Hart. From a judgment of the Appellate Division (164 App. Div. 909, 148 N. Y. Supp. 1108), affirming judgment of the Trial Term for plaintiff, defendant appeals. Affirmed.

See, also, 64 Misc. Rep. 149, 118 N. Y. Supp.

1049.

Louis C. Rowe, of Oswego, for appellant. L. W. Baker, of Oswego, for respondent.

jury found a verdict in favor of plaintiff. The trial justice held that plaintiff could not, under the proofs offered, establish title to all lands under water to the westerly side of lot No. 33, but had established title to the thread of the stream. Defendant claimed the right to establish an interest in the lake and the land under water to the geographical center of the body of water, and asserted

that each owner on the lake was entitled

to a triangular parcel of land under water, with its apex at such center and the base on the shore line of his property by reason of the oval shape of the lake. Evidence was adduced by defendant to locate such geographical 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 of lot No. 33 and filed the same in Oswego county clerk's office. The numbers of the subdivisions appearing on an earlier map were changed upon the Loomis map, and conveyances after 1850 were made with reference to the Loomis map. The water of the "Spring or Mud Lake," so called, is described as pure, and quantities of moss and ice are annually taken from the same for commercial purposes.

The plaintiff by deed dated December 28, 1906, obtained title to 94 acres of land in lot No. 33, bounded on the north by lands of Vorse and Barnes and the north line of lot No. 33, on the east by the highway, on the south by the land of Baker, now claimed by defendant, and on the west by the west line of great lot No. 33 according to the map made by Loomis. The land thus conveyed covered the land surrounding the northerly end of the lake in lot No. 33 and about three-quarters the length of the lake on the easterly side thereof. A small portion of the lake, at the southerly end, extended

stream, and then following northerly the thread of the stream to the head of the lake would result in an allotment to plaintiff of only such portion of the lake as the shore line of his premises discloses would be fair and proportionate, while the divisions by a geographical center, as asserted by defendant, would give to him an unfair proportion of the lake to the detriment of plaintiff and other riparian owners.

In this state and in most of other jurisdictions where the common-law rule obtains, the rule has been established that as between adjoining owners on nonnavigable streams and rivers, each owner takes title ad medium filium aquæ, in proportion to his line on the margin in front of his upland according to straight lines drawn at right angles between the side lines of his land on the shore and the center line of the stream. The decisions of our courts relating to the ownership of land under water in inland lakes are founded upon the principles of law applicable to rivers. Smith v. City of Rochester, 92 N. Y. 463, 44 Am. Rep. 393; Gouv

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

Waters, Cent. Dig. §§ 212-215; Dec. Dig. m 37(7).]

[Ed. Note.-For other cases, see Navigable

3. EMINENT DOMAIN ~238(7) DETERMINA

TION OF DAMAGES-REVIEW-REVERSAL AND
REMAND.

The part of the determination of the Board ditional award was for damage to the ordinary of Claims, leaving it uncertain whether an adriparian rights of claimants from the taking of land between their remaining lands and the river, or on the erroneous assumption that they were the owners of the bed of the river, will be reversed, and the matter remitted for determination and award of any damages for interference with ordinary riparian rights through the taking.

main, Cent. Dig. §§ 674, 687; Dec. Dig.

[Ed. Note.-For other cases, see Eminent Do☺m

238(7).]

Appeal from Supreme Court, Appellate Division, Third Department.

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.) 102; Deuterman v. Gainsborg, 9 App. Div. 151, 41 N. Y. Supp. 185. As pointed out in the very illuminating opinion written by the trial justice in this case, 64 Misc. Rep. 149, 118 N. Y. Supp. 1049, the question has arisen in some jurisdictions when the body of water was so irregular that a division of rights therein upon the rule prevailing in this state would seem inequitable, but the facts in this case are clearly distinguishable from the decisions made where such difficult situations were involved. In this state may be found many inland lakes of varying size and shape. It would be well-nigh impossible to lay down a general rule applicable alike to all of them, as each case depends upon its own peculiar circumstances and facts. The case at bar is not out of the ordinary. The body of water under consideration is legally a nonnavigable stream, its length is double the width of the same, the shore line practically unbroken by coves or bays, the lot lines bounding the same at right angles with the A line drawn through the center of the stream north and south equitably and proportionately gives to each riparian owner an interest to that line in the water or the land thereunder without undue advantage over his neighbor. Should the present shore line at some future date be extended uniformly into the lake by alluvion, even midway to the thread of the stream, as it is located at the present time, the allotment made by the trial justice in this case would be justified. People ex rel. Cornwall v. Woodruff, 30 App. Div. 43, 51 N. Y. Supp. 515, affirmed on opinion below, 157 N. Y. 709, 53 N. E. 1129.

stream.

Proceeding by Samuel A. Danes and another against the State of New York. From a judgment of the Appellate Division (169 App. Div. 443, 154 N. Y. Supp. 1089), affirming a determination of the Board of Claims in favor of claimants, the State appeals. Reversed, and remitted for further determina

tion.

Egburt E. Woodbury, Atty. Gen. (Wilber W. Chambers, Dept. Atty. Gen., of counsel), for the State. De Witt Ostrander, of Clintondale, for respondents.

COLLIN, J. The question presented here by the arguments of counsel is, Are the respondents entitled to have added to the sum of the compensation awarded for land owned by them in Schenectady county, contiguous. to the Mohawk river and taken for the barge canal, a sum as compensation for the land,

The judgment should be affirmed, with connected with those uplands, under and to costs.

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For a river to be navigable it need not be deep enough to admit the passage of boats at all portions of it.

[Ed. Note. For other cases, see Navigable Waters, Cent. Dig. § 7; Dec. Dig. 1(3).]

2. NAVIGABLE WATERS 37(7) TITLE TO BED OF RIVER-FOREIGN GRANTS.

the center line of the river? The determination of the Board of Claims awarded the additional compensation by this language:

"And that said claimants are entitled to recover from the state of New York $1,000, in addition to the above sum of $8,050, by reason of 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 claimants as shown in the appropriation maps; * * * said award of $1,000 being intended to cover all other rights growing out of the ownership of said land in the bed of the Mohawk river and all riparian rights appurtenant to the premises appropriated.'

The Appellate Division by a divided court affirmed the determination.

The appropriation maps of the state under which, pursuant to section 4 of the Barge Canal Act (Laws of 1903, c. 147), title to the uplands of the claimants was acquired 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 common 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 | the river. The effect and extent of the described in the maps, rests upon two as-grant is controlled and defined by the comsertions: The one, that the appropriation of mon law of England as it then existed and the bank of the river was, by operation of was administered in England, and thereby all law, the appropriation of the contiguous bed fresh-water rivers were unalterably declared to its center; the other, that the appropria-nonnavigable, and the title of their beds was tion of the bank was a taking of the bed, in the owners of the adjacent banks, the 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.

owners of each side taking to the center, or usque ad filum aquæ. The royal grant, therefore, conveyed to its grantee the bed of the river connected with the uplands to its [1] In connection with and as an essential center. It follows, necessarily, that the element of the first assertion, it is further British crown, having granted in 1708 the asserted that the river is nonnavigable-an bed of the river to the predecessor in title of assertion we do not accept. We hold, for the respondents, could not have transferred the purposes of this action, that it is con- or surrendered title to it to the people of the clusively established by colonial and state 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. It 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.

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."

In

[2] The source of the respondents' title is The colonial courts exercised a sovereign a grant, describing the uplands and bound- authority in determining what part of the ing them by the river, from Queen Anne in common law of England was to be adopted October, 1708, and, therefore, before the or- by the colony. The colonial legislation and ganization of the state and the succession of judicial decisions and the state Constitutions its people to all the rights of the British recognized and applied the general principle. crown to lands within its territorial juris- The other fact is that the law of New York, diction. The case presents the question, as a colony and as a state, has consistently whether or not the original royal grant car- declared through legislation and judicial deried title from the English sovereign to the cisions that the rule that the owner of the grantee running to the center of the Mohawk contiguous bank of a nontidal navigable river owns to its center is not, for certain exriver, when the grant fixed the river as a boundary of the land so granted. The rule ceptional reasons, applicable to the Mohawk of the common law of this state (enlarging river and parts of the Hudson river. or extending that of England) that the title Canal Appraisers v. People, 17 Wend. 571, to the bed of navigable rivers, not tidal, pass- 609, the opinion of Senator Beardsley states: ed to the grantees of the adjacent banks sively that, not only the colonial government, but "The evidence establishes the fact most concluhas not heretofore been applied to the grants the state authorities, have considered the bed of of the banks of the Hudson and Mohawk riv- the Mohawk as belonging to the public and not ers. Williams v. City of Utica, 217 N. Y. 162, to individuals, or that the common-law principle, 111 N. E. 468; Fulton Light, Heat & Pow-to the bed of the river, has not been considered that the owner of the adjacent lands is entitled er Co. v. State of New York, 200 N. Y. 400, as applicable to the Mohawk." 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

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

"In our state, there were to be considered, in applying the common-law rule [of England], the

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