Landon v. Clark

ROGERS, Circuit Judge. [1] An action was commenced in the Supreme Court of New York in 1893 by the present defendants against the present plaintiff to restrain the latter from trespassing upon Wick-ham’s Pond or Eake. In that action the plaintiffs therein claimed to own the whole pond or lake, and the description set out in that complaint concededly included the whole thereof. The defendants obtained a judgment in their favor, which was reversed in the Appellate Division. 35 App. Div. 312, 55 N. Y. Supp. 14. The claim made upon the appeal that Jesse Durlánd owned to the center of the pond was not determined at that time by the Appellate Division which in referring to it declared: “But it is not necessary to consider this branch of tire question.” This eliminated the question of title to the so-called east farm of 159 acres, which was the only part involving the locus in quo here. The case then went back for a second trial. The trial judge declared that he saw nothing in the case “except the location of this 8-and a fraction acres.” This eliminated the present locus in quo, if he was right. The only new evidence given on the second trial was devoted to an attempt to prove title to the 8 and a fraction acres. On the second trial judgment was again in favor of defendant. Another appeal was taken, and the Appellate Division declared that: “The judgment for tbe defendant, rendered at Special Term, upon the second trial of this case, which now comes up for review, was required by the views expressed by this court upon the first appeal. * * * The learned judge at [35] Special Term rightly concluded that the new proofs did not justify a different result from that formerly reached in this court.” 104 App. Div. 615, 93 N. Y. Supp. 249. What that result was has already been pointed out. The Court of Appeals affirmed without opinion. 187 N. Y. 560, 80 N. E. 1107. It was thus established that the acts proven upon the first and second trials in the Supreme Court of New York were not a trespass because they were, committed upon 8.7 acres to which the defendant had title. The only issue necessary and essential to the determination of the action was as to the title to that portion of the pond. Thereafter the present plaintiff, who had been the defendant in the action in the state court, filed a bill quia timet in the United States District Court for the Southern District of New York against the present defendants, who had been the plaintiffs in the suit in the state court, in respect to the premises described in his bill which were the premises described in the bill filed in the suit in the state court, and not merely the 8.7 acres. He relied upon the judgment in the state court and claimed that it was res adjudicata upon the question of title to the locus in quo. He obtained a decree in his favor in the District Court. On appeal to this court that decree was reversed without prejudice. 221 Fed. 841, 137 C. C. A. 399. A rehearing was asked and denied. Thereupon the plaintiff filed a new bill quia timet in the same court against the same defendants and in respect to the same property. He again relies upon the New York judgment, which he asserts is as to the locus in quo res adjudicata of the title. And in this second suit he has introduced evidence not before the court in the first suit. The evidence presented is that taken on the trial in the New York court and upon which the New York judgment was based. The purpose of bringing this evidence into the case is to show that the defendants in the New York action had threatened an entry upon the present locus in quo, and that, this entry being undisputed, the complaint in that action could not have been dismissed, except upon the findings in justification which were actually made. The District Judge dismissed his bill, filing an opinion in which he carefully considered the testimony and reached the conclusion that the plaintiff failed to sustain the burden of proof that the judgment in the case of Clark v. Durland was an estoppel upon the question here at issue. He also considered whether the plaintiff upon the evidence could sustain his title independently of that judgment and reached the conclusion that he could not. “I think,” he says, “that the defendants are in possession so far as any one can have possession of the pond. They have a clear title from the colony, and have never, so far as appears, lost the possession to any one else.” There is nothing in the evidence upon which the judgment in the state court was based, and now presented to this court for the first time, which has served to convince us that the judgment in that action is entitled to be regarded as an estoppel between the parties as to the locus in quo involved in the present suit. We remain of the opinion, announced in the former suit, that that judgment is conclusive only as to the 8.7 acres. We need not traverse again the ground gone over [36] in the former opinion. We then stated at length the reasons which led us to our conclusion, and we find nothing in the evidence now presented which convinces us that the conclusion we „ then announced should not now be adhered to. It is sufficient at this time to point out that the complaint in the state court alleged that the defendant had committed trespasses upon the premises described, and that the premises described included the 8.7 acres and the locus in quo, and that he threatened to continue his trespasses on the same. These allegations defendant denied, except as to the cutting of ice at the time laid in the complaint, which he justified, and which both sides agree was only upon the 8.7 acres. If he had title to that tract, it was not necessary, so far as the actual trespasses are concerned, to determine who held title to that portion of the premises not trespassed upon, and which the evidence shows was not held under the same title. The title to the tract not trespassed upon could only have been involved, therefore, if the evidence disclosed that the defendant had threatened to commit trespasses thereon. This the evidence fails to disclose. It appears that on one occasion, when the plaintiff was cutting ice on the 8.7-acre tract, he was forbidden by the defendants to cut ice there, and he testified that he replied that he intended to cut ice from the lake as he chose to. But this does not show that the plaintiff was threatening to cut ice anywhere upon the lake. On the contrary, if he was at the time cutting on the 8.7 acres to which he held title (and which defendants denied), and if, he did not hold title to the locus in quo, we must assume, in the absence of evidence to the contrary, that he was not threatening to do what he had no right to do, and which would be a trespass if done, but that he was proposing to do what he had a right to do — to cut ice on his own tract. Moreover, the allegation in the complaint in the action in the state court was that the defendant Dur-land had trespassed upon the premises and “threatened to continue such trespass.” The evidence shows that the premises he trespassed on were the 8.7 acres; the threat complained of to continue “such trespass” must have, therefore, been a threat to continue to cut on the 8.7 acres. There is no evidence that he “threatened” to cut anywhere else. [2] In his brief in this court counsel for plaintiff says that the court below seemed to think that the locus in quo and the 8.7 acres are two separate parcels. That such they are is perfectly evident. The title to the 8.7 acres is not derived from the same common source, nor dependent upon the existence of the same facts, as the title to the remaining land. This brings us to consider whether the plaintiff has sustained his title independently of the judgment in the state court. On May 4, 1863, a deed was made to Thomas E. Durland of what is known as the east farm, a tract of 159 acres. The plaintiff claims through that deed by a chain of title which need not be recited here in detail. A part of the description of that deed is, “thence along the east shore of said pond.” The learned counsel for the plaintiff in his argument in this court insisted that tire grantee under that deed took to the center of the lake, and in support of that view called attention [37] to the case of Gouverneur v. National Ice Co., 134 N. Y. 355, 31 N. E. 865, 18 L. R. A. 695, 30 Am. St. Rep. 669. In that case the court declared that the presumption in the state of New York is that lands under the waters of small inland nonnavigable ponds and lakes belong to the proprietors of the adjoining lands, and that the same rule applies in the legal construction of grants of land bounded on them as is applied to conveyances or grants of land bounded on fresh-water streams. It held that, unless restricted by express words or by other facts implying a contrary intent, a conveyance of land adjoining such a lake or pond, describing it as running “to the pond,” or to some monument on the land at the water, and thence along the pond to some other monument on the bank, carries the title to the center of the pond. The decisions of the New York courts as to the title to land in this state arc conclusive, and we do not doubt, and, if we did, would be obliged to adhere to, the doctrine announced in the case above cited. It has, however, no application to the facts of this case. In the case now before the court the deed fixes the boundary as “the east shore.” And the rule in New York is that where, in a deed, the laud is described as bounded on the bank or shore of the stream, the grantee does not take title to the center, but the bank or the shore is the monument, and not the stream. Babcock v. Utter, 1 Abb. Dec. (N. Y.) 27; Child v. Starr, 4 Hill (N. Y.) 369; Halsey v. McCormick, 13 N. Y. 296; Hall v. Whitehall Water Power Co., 103 N. Y. 129, 8 N. E. 509. In this respect the law of New York does not differ from what we understand to be the law elsewhere. See Eng. & Am. Encyc. of Law, volume 4, page 830. It is upon the description in this deed that the plaintiff’s claim to the one-lialf of this pond rests. His claim appears to us to be without merit. The question of plaintiff’s title was very carefully considered by the District Judge, and we see no reason why his conclusion should not be affirmed. He thought that the defendants have a clear title from the colony, and that they have never, so far as appears, lost the possession to any one else. In that opinion and for reasons stated by him we concur. Decree affirmed, with costs.