Summary
In Harbor Assocs. v. Asheroff (35 A.D.2d 667), we found that Harbor had established its ownership of the subject underwater land by proof of a chain of title derived through the 1888 Ropes patent or, alternatively, through a chain of title from the County Treasurer's tax deed which is conclusively presumed regular after two years.
Summary of this case from Smith v. StateOpinion
September 21, 1970
Appeal by defendant from so much of a judgment of the Supreme Court, Nassau County, entered December 4, 1968 after a nonjury trial, as adjudged him guilty of trespass on plaintiff's land under water and awarded plaintiff $10 damages therefor, upon the trial court's finding of a statutory presumption of plaintiff's ownership of the land. We previously dismissed the appeal unless appellant would cause a proper transcript of the trial record to be settled and filed ( Harbor Assoc. v. Asheroff, 33 A.D.2d 778); appellant has complied with this condition and so the appeal was restored. Judgment affirmed insofar as appealed from, without costs. In our opinion plaintiff did not establish a statutory presumption of title pursuant to section 321 Real Prop. Acts. of the Real Property Actions and Proceedings Law and CPLR 4523 because its title certificate did not show an unbroken chain of title for 20 years. The title certificate was insufficient in this respect because (a) there was a gap in the chain between the ownership by Morgan Island Estates and the ownership by the County Treasurer, who conveyed the property to Knocklong Corp. by a tax deed; and (b) the tax deed extinguished prior titles and created a new, independent title from the sovereign ( Hefner v. Northwestern Life Ins. Co., 123 U.S. 747; Eisenhut v. Marion De Vries, Inc., 150 Misc. 804, 806, affd. 243 App. Div. 539), and this tax deed was given less than 20 years before the trespass which was the subject of this action. However, plaintiff established its ownership of the subject underwater land by proof of a chain of title derived through the 1888 Ropes Patent embracing this and other underwater land in Dosoris Creek and Hempstead Harbor, adjacent to Morgan's Island ( People ex rel. Underhill v. Saxton, 15 App. Div. 263, affd. 154 N.Y. 748; Morgan v. City of Glen Cove, 6 A.D.2d 704, affd. 5 N.Y.2d 1041) or, alternatively, through a chain of title from the County Treasurer's tax deed, which is conclusively presumed regular after two years (Real Property Tax Law, § 1020). We find no merit in defendant's contention that plaintiff has a mere incorporeal hereditament, rather than fee ownership of the subject lands (see 1891 Opns. Atty. Gen. 273; 1892 Opns. Atty. Gen. 83; People v. Steeplechase Park Co., 218 N.Y. 459, 471-472; see, also, New York Foundation v. People, 259 N.Y. 54; Matter of City of N Y [ Upper New York Bay], 246 N.Y. 1; 3 Warren's Weed, New York Real Property [4th ed.], p. 5). Nor do we find merit in his contention that this underwater land could not be owned separately from the upland (cf. Riviera Assn. v. Town of North Hempstead, 52 Misc.2d 575 [opinion adopted by the Court of Appeals in the companion case of Mannor Mar. Realty Corp. v. Wachtler, 22 N.Y.2d 825]; Claudio v. Village of Greenport, 55 Misc.2d 371); and, apart from that conclusion on the law, we note that the record in this case demonstrates that the underwater land now owned by plaintiff encompasses part of what was upland at the time the Ropes Patent was granted, so there has in fact been no separation of ownership. Finally, we have, sua sponte, conformed the pleadings to the proof under the power granted us by CPLR 3025 (subd. [c]) (see Tinkess v. Burns, 24 A.D.2d 545, 546; 3 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3025.31). Christ, P.J., Rabin, Martuscello, Benjamin and Kleinfeld, JJ., concur.