Nicoll v. Trustees

The Chancellor. The foundation of the bill is the legal right of the plaintiff to the three islands in dispute; and his claim to the assistance of this court arises from the peculiar state of the property, and the oppressive nature of the litigation which it involves. His case states a proper ground of equitable jurisdiction, and if the title he sets up was sufficiently established at law, before he came here, or was — 176 — since established to the satisfaction of this court, either upon its own view of the testimony, or by verdict, upon one or more issues, to be awarded to its discretion, it would then be ' J , the duty of the court to declare that right by decree, and protect it by injunction. But, on the other hand, if the title of the plaintiff fails, on investigation, and I shall be satisfied, from all that appears in the case, that is not well founded, it would then be useless to put the parties to the expense of another feigned issue. The bill would have no real ground of support, and ought to be dismissed. I have accordingly been led to direct my first and principal attention to the testimony bearing on the plaintiff’s title. His title rests upon the construction and location of the patent of 1688, to William Nicoll, his ancestor. There was no possession of the islands by any person, except occasional entries, and these were not so exclusive, steady, and certain, as to amount to evidence of right, and to supersede the necessity of paper title. The words of the patent are easily and obviously satisfied according to the present physical state of that part of the country, without resorting to the pretensions of the plaintiff. Indeed, it is impossible to cast the eye upon any modern and accurate map of Long Island without being struck with the impression, that the plaintiff’s construction of his patent is violent and unnatural; and nothing can reconcile us to it, but satisfactory proof that the beach on the south side of that island has undergone some great change since the date of the patent. There is a cluster of low islands, or small isles, which are separated by water, when the tide is full, but not so when the tide is down, and which are called ' Fire Island, or Fire Islands, and they lie between a very noted and large inlet, or gut, and the lands of Nicoll. It is admitted, on all sides, that they are included in the patent; and if that gut was in esse, at the time of the patent, it would seem, very naturally, to have been the one intended. — 177 — The words of the patent are, “ all those islands, and small isles, of sandy land and marsh, or meadow ground, with the appurtenances, situate, lying, and being, on the south side of ’ J ' i 11 j Long Island, between the mlet or gut, commonly called Huntington Gut, and the lands of the said Nicoll, at a1 certain river called Conetqunt,” &c. If the above inlet, now existing and generally known by the name of Fire-Island Inlet, be the one referred to in the patent, by the name of the “ gut, commonly called the Huntington gut,” it puts an end to the.plaintiff’s claim. To this point a great part of the testimony in the cause has been directed. On the part of the plaintiff, several witnesses have been examined to prove that, for the last 40 or 50 years, or as long as they can well remember, this Fire-Island Inlet has been known by the several names of Fvre-Island Inlet, or Gut, the Great Gut, Nicoll'1 s Gut, or Nine-Mile Gut ; but not by the name of Huntington Gut. The testimony of Garret Kettletas, Israel Howell, Jacob Willet, Isaac Thompson, Daniel Jarvis, Epenetus Wood, Daniel TJdall, and Richard Udall, goes to this fact. On the other hand, there are several witnesses examined on the part of the defendants, who testify to the same length of time, and that Fire Island Inlet was known, as well by the name of Huntington Gut, or Huntington East Gut, as by the other names above mentioned. This appears from the testimony of Luke Ruland, Moses Wicks, Caleb Saxton, James Pearsall, ■ Gilbert Wickes, Joseph Ruland, Joseph Ketcham, and Arthur Dingee. There may be a few more witnesses on one side or the other, whose testimony has some relation to this point; but it is unnecessary to be more particular. The weight of this testimony, in respect to the name, is on the side of the defendants, from this circumstance, that the witnesses on that side speak affirmatively, as to a fact within their knowledge, of the name of Huntington Gut, or Huntington East Gut, and the plaintiff’s witnesses can only speak negatively of their having no knowledge of any such name so applied. But after all. — 178 — there is much uncertainty in the attempt to designate the gut, by the shifting and changing names used within the last fifty years. The patent goes back 125 years, and speaks _ _ _ . ,, _ • i of the name then commonly given to the inlet. The plaintiff has, however, proved affirmatively, by seve- ~ Tal witnesses, as Garret Kettletas, Isaac Howell, David Willet, John Arthur, and Epenetus Wood, that there was -formerly a gut to the westward of the islands in dispute, and now filled up, which was called Huntington Gut. On the other hand, it is proved by Caleb Saxton, Gilbert Wickes, Joseph Ketcham, and Richard Udall, that Gilgo Gut (and which now appears on the maps to be west of the town of Huntington) was anciently known by the name of Huntington West Gut, or Huntington Gut ; and one of them said it had been called Huntington West Gut by old whale-men, who have been dead forty years; and another said, that the temporary gut, opposite Cedar Island, was called Huntington West Gut, as contradistinguished from Fire Island Inlet, which was called Huntington East Gut. With respect to this intermediate gut, between Fire-Island Inlet and Gilgo Gut, (the two plain and noted inlets, which, and none other in that quarter, are known to modern times and modern maps,) it appears to have been very temporary, and soon disappeared. The whole testimony concerning it, is loose tradition, and involved in darknes and fable. Jacob Seaman says, that about fifty years ago, the ocean broke through the beach, between Fire-Island Gut and Gilgo Gut, with great violence, and formed what was called Cedar-Island Gut, but which in a few years was filled up, and gone. Isaac Thompson speaks, also, but loosely, of a gut called Huntington Gut, between Cedar and Oak Islands, now disappeared ; and he says, that within his memory, the water has several times broke through the beach, and that the inlets afterwards closed up.. Though several of the plaintiff’s witnesses have designated one of these intermediate and temporary guts, as, having been — 179 — known by the name of Huntington Gut, yet, I think, we must be governed by mere conjecture, in fixing on any of these transient inlets as the inlet intended by the patent of 1688. * Why should we be seeking, through the most vague and contradictory traditions, for some extinguished inlet, which may enable the plaintiff to embrace islands lying far west, and collateral to his lands, when we have, in front of his farm, a large inlet of unknown antiquity, which includes between it and his lands the little islands lying against or opposite his lands, and which so readily corresponds with the words of the patent ? But it is contended, that even Fire-Island Inlet, though now nine miles wide, did not exist at the date of the patent. If this be really so, we are then reduced to the necessity of exploring in the dark for the inlet in question. The bill admits, that it is now difficult to ascertain the one intended. To prove the commencement of Fire Island Inlet since 1688, the testimony of John Arthur and Richard Udall, is relied on. The first witness says, that he always understood, from a boy, (and as he said this in 1770, and was then seventy-four years old, he must refer back to within thirty years of the patent,) that Fire-Island Inlet broke through after Nicoll settled there, and that it used to be called the New-Gut. The other witness says, that old Mr. Willis told him, that he had been informed by his ancestors, that Fire-Island Gut broke through in the winter of 1690, or 1691, in a storm. This, at best, is improbable, and rests on foundations too weak. The sudden existence of such a grand inlet as that, known in the memory of the oldest witnesses by the names of the Great Gut and the Nine Mile Gut, and which was a passage for privateers durihg the revolutionary .war, must have been ascertained with much greater historical certainty; for it would have been regarded as a remarkable phenomenon in the natural history of the country. The inlet may, probably, have extended itself gradually towards the west Several of the witnesses attest to this, and the fecM — 180 — applies equally to Gilgo Gut; but this progress must have been very gradual, for Isaac Thompson, who lived opposite Fire-Island Inlet forty-nine years, says, only, that from the appearances and changes within his knowledge, he thinks it probable that, formerly, the east shore of the gut was as far eastward as the end of Fire Island. If this was so, then the description in the patent applied most precisely to the Fire Islands, and to them only. The patent to William Smith, in 1693, is a most important item of testimony, in the consideration of this question of fact; with me, it has all the preponderance so justly due to written, over parol proof, especially when we are referring to times far beyond the memory of man. That patent was 1 for lands bounded west on East Conetqunt river, and east on Mastick river, and down on each side to the main sea, with the islands in the bay, “ from a certain gut, or inlet, westward, commonly called Huntington East Gut, to a place on the beach, eastward, called Cuptuange, being the west bounds of Southampton; the beach and bay being twenty-four miles east and west.” The present Chief Justice, who tried the feigned issue heretofore awarded in this cause, on the point whether the title of the three islands was in the plaintiff, certified, that this patent to Smith was offered in evidence upon the trial, and was located by parol proof; and that it appeared that the gut, in the patent to Smith, called Huntington East Gut, was the same with the one mentioned in the pleadings and testimony in this cause, by the name of Fire-Island Inlet; and that running west from the west bounds of Southampton, the twenty-four miles would terminate some distance to the east of Fire-Island, making the probable width of the gut, at the date of the patent, from three and a half to five miles, being nearly the width of -NicolPs land on Long-Island. He further certified, that he told the jury, if Huntington East Gut, in the patent to Smith, was the same with ‘Huntington Gut, in the patent to Mcoll, the islands in question were not included in his — 181 — patent, and that he was of that opinion, and so told the jury, who accordingly found a verdict for the defendants. This patent to Smith does away all pretence of the creation of Fire-Island Inlet, by some violent action of the sea, since 1688 ; for, ifit existed in 1693, and was then a familiar passage, “ commonly called Huntington East Gut,” it is quite certain it was not “ the new gut,” suddenly brought into existence by a storm, within the two or three preceding years. From this view of the case, I am perfectly satisfied that the patent to Nicoll does not extend to Captree, Oak, and Grass Islands, and there is no need of any further issue to inform and satisfy my judgment. I have given the plaintiff the benefit of the testimony excluded on the issue; for I have taken it all into consideration in forming my conclusion. I have not placed reliance on the evidence which the plaintiff has given, of the use and possession of the islands, because, as I have already observed, (and the fact appears abundantly in. the testimony,) the islands are not capable of any other, possession, occupancy, or real use, than occasional and periodical entries to cut the grass and sedge; and the testimony as to this use, is quite as strong, if not much stronger, in favour of the defendants.' Several witnesses have testified to the claim and use of the islands, by the plaintiff and his ancestors, from the time of the lease to Howell and Smith, in 1768, down to the time of filing the bill; but as many, and, perhaps, more witnesses, testify to a similar claim and occupancy, during the same period, by the defendants, and those claiming under the town of Huntington, the result is, that possession must be adjudged to belong to, and to be in, the party who has the right; and as the plaintiff has no title, he has no lawful possession. The equity of his bill has totally failed. It cannot be material whether the title set up by the defendants be good or not, as to the point of the dismissal of — 182 — the bill. If they lia ve no ti tie, yet the bill must be dismissed, because the plaintiff has no title, and, consequently, no equity to support his case. But it is a very different ques-ti°n, whether the bill shall be dismissed with, or without, On this question, I have felt some embarrassment. Costs are always discretionary in this court. They are awarded, as Lord Hardwicks has observed, (2 Atk. 552.,) not from any statute authority, but from conscience, and ex arbitrio boni viri, as to the satisfaction due on one side or the other. A general denial of costs, in all cases, would be holding out encouragement to great vexation, without any recompense, and therefore, costs usually follow the justice of the case ; hut they do not always follow the event of the cause. There are cases in which costs have been denied, though the plaintiff failed, when he had probable cause of suit. (Trethewy v. Hoblin, 2 Ch. Cas. 9.) So, where infant heirs revived a cross bill, and entered into very long and expensive examinations, to set aside a deed, and failed, yet costs were denied against them, as they had probable cause to contend. (Shales v. Sir John Barrington, 1 P. Wms. 481.) In the present case, it strikes me that the plaintiff had probable cause to come here. His ancestors had maintained a long and steady claim to the islands in dispute, and had leased one of them as early as the year 1768. He had also succeeded at law in an action of trespass, tried at the Suffolk circuit, in which he had alleged a seisin in himself, and the defendant had alleged a freehold in Huntington, and on the traverse of the defendant’s title, the issue had been found for the plaintiff. Other trespass suits between the parties were still pending; and, with respect to the merits of the case, as it appears before this court, the defendants, when brought in, deny the plaintiff’s title, and set forth the patents under which they claim an exclusive? title to the premises. The issue awarded here was upon the title of the plaintiff, but the defendants’ title was brought into view, and to the notice of — 183 — the court, by the pleadings; and on the trial of the issue, and on the argument in this court, the learned judge before whom the cause was tried, certified, that he gave it as his opinion , . , to the jury, that the patents under which the defendants claimed did not cover the islands in dispute. I do not wish to give any decided opinion on that point. When a cause resolves itself into a dry legal question, the proper forum for the determination of it is a court of law, and I only notice that title here incidentally, as it serves to guide me in the exercise of a suitable discretion as to costs. It is admitted that the last patent to Huntington does not touch the islands. If the defendants have a title, it is under their first patent, of 1666, and the terms of it are extremely vague as to the southern boundary, and the better opinion is, that it is limited, in breadth, to the “ nine several necks of meadow ground;’5 if that be so, the premises are excluded. These necks are undoubtedly to be taken in continuity. Ad proximum antecedens fiat relatio. It is a general principle, in the construction of written instruments, that a particular specification will exclude things not specified. But, whatever doubts might have existed under this patent, I consider them as removed by the last patent of 1694, which was granted on the petition of the inhabitants of Huntington, and was intended as a substitute for the preceding patents, “ so as that the limits and bounds of their town should not be as above mentioned, but as hereafter expressed.” The clear definition and location of the southern boundaries of their town, by this last patent, certainly concludes the inhabitants of Huntington from resorting to the vague and indefinite description of the former patents, even if we suppose, in opposition to the usage under our government, that there are technical difficulties in the way of a legal surrender to government of an estate in fee. If, then, the plaintiff had probable cause for instituting his suit, and the defendants have been litigating against his claim, without any better claim or title on their part, I think it forms — 184 — a very reasonable case for the denial of costs on either side. It is a case of mutual error. Bill dismissed without costs.