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Full text of "The dutch grants, Harlem patents and tidal creeks : The law applicable to those subjects examined and stated ... With an appendix containing copies of ancient Dutch deeds and records, tr. from the originals and authenticated by James Riker ... And also, copies of the Harlem patents, and illustrative map, etc."

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The dutch grants Harlem patents and tid 




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http://www.archive.org/details/cu31924022802858 



THE DUTCH GRANTS, 
HARLEM PATENTS 



AND 



TIDAL CREEKS. 



THE LAW APPLICABLE TO THOSE SUBJECTS EXAMINED AND 
STATED, IN CONNECTION WITH THE TITLES TO 

THE McGOWN MAESHES, 

(Oe thb Meadows in the Bay op Hell Gate), 

THE HAELEM MILL CEEEK, 
THE HAELEM MILL POND, 
MONTAGNE'S POINT, 
MONTAGNE'S FLAT, and 
VAN KEULEN'S HOOK. 



"With, an .A.pp.endix, 

Containing Copies op 

ANCIENT DUTCH DEEDS AND RECORDS, 

TRANSLATED FROM THE ORIGINALS AND AUTHENTICATED 

By JAMES RIKER, Esq., Author of "Histoky'of Haelem." 

And also, COPIES OP THE HARLEM PATENTS, 

AND ILLUSTRATIVE MAP, Eto. 



By 

JOHN W. PJ,RSSON, 



of tbe Neiv York Bar. 



NEW YORK: 
L. K. STEOUSE & CO., LAW PUBLISHEES, 

95 NASSAU STREET. 
1889. 




Entered according to Act of Congress in the year 1889, by 

JOHN W. PIESSON, 
In the OfQce of tlie Librarian of Congress at Washington. 



C.I 



PKEFACE. 

The following pages are the result, in the main, of inves- 
tigations made by the writer for his own information and 
for use in his practice. ■ At the suggestion of some of his 
friends, members of the New York 'Bar, he ventures to pub- 
lish this little volume, in the hope that it may be of some 
service to his brother toilers in the legal profession ; es- 
pecially to those whose attention may not have been par- 
ticularly turned to the lines of this inquiry. 

J. W. P. 

New York, Maeoh, 1889. 



TABLE OF CONTENTS. 

CHAPTEE I. 

INTRODUCTION. 

PAGE. 

The First Ground Brief 1 

CHAPTEE II. 

The Dutch Grants 2 

CHAPTEE III. 

The Indian Titles 9 

CHAPTEE ly. 

The Harlem Patents Interpreted 10 

CHAPTEE V. 

THE FIRST HARLEM FARM. 
Montague's Flat and Montague's Point 17 

CHAPTEE VI. 

The Village ot New Harlem 33 

CHAPTEE VII. 

TIDAL CREEKS.— PART FIRST. 

Not all streams in which the tide ebbs and flows are prima fade navigable 
and public. 

To raise the presumption that they are public, there must be a public use 
or navigation. 

A private navigation may exist in tidal streams. 

The theory that all tidal streams are prima fa/iie publici juris, is not sus- 
tained by the English Common Law authorities. 

The treatise -De Jure Maris, is probably responsible for that theory, but it 
does not really teach that doctrine. 

The salt marshes and the intersecting creeks are prima facie private 
property. 

The common law definition of navigable rivers 33 



VI TABLE OP CONTENTS. 

CHAPTEE VIII. 
TIDAL CREEKS.— PART SECOND. 

According to American law, to render a stream public, there must be an 

actual, or potential, use of water for some useful purpose, connected 

with trade or agriculture. 

The Constitution of the State of New York, of 1777. 
The American Authorities as to tidal waters are conflicting and discordant. 
English and American Authorities examined and compared. 
By the Common law there are three kinds of rivers. 
The interpretation of grants bordering on small tidal streams. 
No Court of final resort has actually decided, as a matter of law, that all 

streams in which the tide ebbs and flows, are prima fade public and 

navigable. 
The rivulets of Manhattan Island. 
The Harlem salt water creeks not pi^blic streams 54 

CHAPTEE IX. 

The McGown Marshes, (or the Meadows in the Bay of Hellgate) 85 

CHAPTEE X. 

The Harlem Creek, The Harlem Mill Pond and Van Keulens Hook. 

Part First 107 

CHAPTEE XI. 

The Harlem Creek, The Harlem Mill Pond, and Van Keulen's Hook. 
Part Second 124 

CHAPTEE XII. 

Summary ;J28 

APPENDIX. 

King Charles the Second's Grant of New Netherland, &c., to the 
Duke of York ^^30 

The Duke of York's Commission to Colonel Richard NlcoUs 135 

Agreement between John Montague and John Louwe Bogert for the 
sale of Montagne's Point, or Reohawanes, and the Meadows in 

the Bay of Hell Gate...., jow 

Deed from the Magistrates of Harlem to John Montague for Mon- 
tagne's Point and the Meadows in the Bay of Hell Gate 138 



TABLE OF CONTENTS. Til 

Deed from Mrs. Maria Vermllje, the widow of Joiin Montagne, to 
Jolin Louwe Bogert, for Montagne's Point and the Meadows in 
the Bay of Hell Gate 146 

Resolution of the Constable and Magistrates, estimating the land of 
Bogert purchased from Lamontagne at 18 morjrera 139 

Deed for the Hop Garden by Maria Vermilje, widow of Jan de La- 
montagne, to Cornelia Everts, wife of Jan Louwe van Schoonre- 
woert (or Bogert) 140 

Judgment in Joost Von Oblinus «. Jan Louwe Bogert, relating to a 
small meadow in the southerly end of the Bay of Hell Gate 141 

Deed of the Overseers and Authorized Men of Harlem, to Jan Louwe 
Bogert, for a piece of land lying in the Bend of Hell Gate. Being 
Lot No. 25 of common lands 142 

Deed of the Overseers and Authorized Men of Harlem, to Jan de 
Lamaeter, for a piece of land lying in the Bend of Hell Gate. 
Being Lot No. 26 of common lands 143 

Minutes of the Town of Harlem, dated Jan'y 3d, 1667, relative to 
building the dam for Delavall's Mill at Harlem Creek 145 

Historical statement of James Riker, Esq., relative to lots Nos. 21, 
23, 23 and other lots on Van Keulen's Hook, and Jochem Pieter's 
tract, &c 147 

Minutes of the Town of Harlem of Oct. 23d, 1738, containing grant 
to Samson Benson to build a dam and a mill on the Mill Camp 
"in place of Delavall's Mill gone to decay," 150 

Award of Lewis Morris 6f the Manor of Morrisania, Abraham Van 
Wyck and others, on behalf of the freeholders of the township of 
New Harlem, alloting the Mill Camp Tract adjoining the Mill 
Pond, to Benjamin Benson 151 

Certificate of James Riker, Esq., author of the History of Harlem, 
authenticating Dutch documents ' 154 

Patent of Richard Nicolls, Governor, &c., to the Freeholders and 
Inhabitants of Harlem, of 1666 ., 156 

Patent of Richard Nicolls, Governor, &o., to the same, 1667 159 

Patent of Thomas Dongan to the same, of March, 1686 162 

Opinion of Richard O'Gorman, Esq., Counsel to the Corporation of 
New York 167 

Opinion of William C. Whitney, Esq., Counsel to the Corporation of 
New York 170 

Opinion of the Hon. Murray Hoffman, relating to Harlem Mill Creek. 174 

Second Avenue Opening — Extracts from Report of Commissioners.... 181 

Extracts from proceedings for opening 106th and 107th Streets, with 
Map... 185 

Illustrative Map 187 



INDEX TO TABLE OF CASES CITED. 



Atkinson v. Bowman (5 N. Y. 
State Reporter) 13, 15 

Breen v. Lock (N. Y. State Re- 
porter) 13, 63, 74, 75, 76 

Bristow «. Cormican (3 App. 
Cases, House of Lords)... .49, 104 

Buok«. Squires (23 Vt) 117 

Canal Commissioners v. Kemp- 
slial(36Wend.) 54 

Canal Commissioners v. The 
People (5 Wend. S. C. 17 
Wend.) 6, 7, 55 

Child V. Starr (4 Hill) 59, 70, 117 

Commonwealth «. Charlestown 

(IPiok. Mass. R.) 56,65 

Culver V. Rhodes (87 N. Y.) 100 

Denton v. Jackson, or Town ot 

Hempstead (3 Johnson Ch. 

R:) 13,14,15 

Elder «. Burras (6 Hiimph. 

Tenn. R.) 60 

Ex parte Jennings (6 Cow.). 5, 7, 64 

JEx pa/rte Tibbets (5 Wend.) 59 

Florence «. Hopkins, (46 N. Y.) 

99, 100 
Johnson «. Mcintosh (8 Whea- 

ton, U. S. R.) 5, 9 

Luce i>. Carley (34 Wend.)....,. 116 
Martin v. Waddell (16 Peters, 

U.S. R.) 5 

Mayor of N. Y. v. Hart (95 N. 

Y. S. C. 16 Hun). 7, 13, 15, 69, 74, 76 
Mayor of Lynn «. Turner ( 1 

Cowper)..45, 53, 55, 64. 80, gl, 83 
Mayor etc. , Colchester v. Brook 

(7 Queens Bench) 47, 67 

MoCannon <fc others v. Sinclair 

&others(Ellis&Ellis.,Rep.). 48 
McManus v. Carmichael (3 

Clark Cases, Iowa R. ) 60 



New York & Brooklyn Saw 

Mill & Lumber Co. «. The 
City of Brooklyn (71 N. Y.)..53 

Ogden «. Lee (6 Hill) 9 

People 11. The Canal Appraisers 

(33N. Y.) 63,74,78 

People 11. Allen (43 N. Y.) 53 

Providence Steam Engine Co. 

V. Providence (13 Rhode 
Island R.); 65, 83 

Rex V. Montague (4 Barnwell 

andCresswell R.). 41, 65, 79, 81, 83 
Rex V. The Inhabitants of Lan- 

dulph (1 Moody & Robinson's) 48 
Roberts v. Baumgarten (51 N. 
Y. Supr. Ct. and S. C. 110 N. 
Y.).54, 73, 76, 77, 81, 83, 111, 117 

Rodgers v. Jones (1 Wend.) 

^ 18, 55, 69, 117 

Royal Fishery of Banne 49 

Seneca Nation n. Knight (23 N. 

Y.) 116 

The Montillo (20 Wall. U. S. 

Rep.) C7 

The Daniel Ball (10 Wall. U. 

S. R.) 67 

Trustees of East Hampton v. 

Kirk(68N. Y.) 15 

Trustees of Duke of Bridge- 
water n. Highways of Bootle 
(7 Best & Smith & S. C. 3 

LawR. 3 B. 4) 48, 65 

VooghtD. Winch (3 Barnwell 

& Alderson's R.) 47, 83 

Rowe et al v. The Granite 
Bridge Co. (31 Pick. Mass. R.) 

38, 62, 65 
Williams v. Wilcox (8 Ad. & 
El.) 48 



CHAPTER I 

INTRODUCTION. 
The First Ground Brief. 

It is not generally known that the two historic tracts of 
land, Montagne's Point and Montagne's Flat, originally 
formed but one Bouwery or farm, and that subsequently 
they were divided, and the " Meadows in the Bay of. HeU- 
gate " were added to Montagne's Point farm. The terri- 
tory thus united continued under one title until it came to 
be possessed by Margaret McGown, in 1821, by inheritance 
from her father, Samson Benson, who was a lineal descend- 
ant of Johannes Benson, the first grantee of record whose 
deed from Jan Loussen Bogert bears date in 1706. 

The title to Montagne's Flat and Montagne's Point had 
its beginning in the first ground brief granted by the Dutch 
government of any part of Harlem, and probably of any 
part of Manhattan Island. 

Van Keulen's Hook ranks next in antiquity. 

" Muscoota," The Flat, was the euphonious name of the 
Harlem Plains conferred by the Indians ; and " Eecha- 
wanes," or Great Sands, the unmistakably Indian designa- 
tion for the neck or point of land lying between Harlem 
creek and the creek at the south leading through the mead- 
ows in the bay between Eechawanes and Hoorn's Hook. 
In fact, the title to the Point farm from the first included 
more than half of those meadows. 



CHAPTEE II. 



The Dutch Grants. 



Before going into tlie history of these ancient farms, 
Montagne's Flat and Montagne's Point, with the adjoining 
meadows and intersecting creeks, the preliminary question 
naturally arises as to the beginning of land titles on Man- 
hattan Island. 

To whom did the territory originally belong? Was it, 
under the law of nations, vested in the British Crown by 
virtue of the voyages and discoveries of Cabot in 1498, 
and the subsequent voyages of Gilbert, Sir Walter Raleigh 
and other British subjects ? Or was it vested in the Dutch 
government, through the visit of Hendrick Hudson in Sep- 
tember, 1609, to the Bay of New York, and his subsequent 
explorations of the Hudson ? This is more than an inter- 
esting historical inquiry ; it has a bearing on the question 
as to the law applicable to the interpretation of the grants 
and property rights resting upon Dutch authority. 

A brief statement of the case will not, therefore, be 
inappropriate. 

The fact that the British Crown had periodically laid 
claim to the territory of New Netherland, founded upon 
the discoveries of Cabot and of other navigators sailing 
under the British flag and authority, and the claim that the 
Dutch were mere intruders, was the justification alleged 
for the advent of the English fleet and forces under NicoUs 
at New Amsterdam, in the time of profound peace with 
Holland. 

That the British were confident of the validity of their 
claim is shown by the fact that the patent for the territory 
of New Netherland by Charles the Second, to the Duke 
of York, was granted before the armament sailed, as was 
also the commission of the duke to Nicolls. 

(See the patent and commission. Appendix A.) 

The seizure of the New Netherland by the British forces 
and their occupation of the territory in 1664, practically 



settled the controversy for the time, and the relinquish- 
ment of it by the- Dutch in the treaty of Westminster in 
1674, removed all doubt as to the ultimate title in the Eng- 
lish. The treaties of surrender in 1664 and 1674 having 
preserved the statu quo of the inhabitants, no disturbance 
was made of vested rights in private persons. 

In regard to the forcible entry of the British, Brodhead 
says (History of the State of New York, vol. 1., p. 745) : 

"The reduction of New Netherland was now accom- 
plished. The flag of England was at length triumphantly 
displayed, where, for half a century, that of Holland had 
rightfully waved, and from Yirginia to Canada, the King of 

Great Britain was acknowledged as sovereign 

but whatever may have been its ultimate consequences this 
treacherous and violent seizure of the territory and posses- 
sions of an unsuspecting ally, was no less a breach of pri- 
vate justice than of public faith." 

The brief re-occupation of the Dutch under Governor 
Clove, extending from August, 1673, to November, 1674, 
raised serious doubt as to the title of the Duke of York. 
In regard to this, Brodhead says in his history (Vol. 2, p. 
260): 

"By the Treaty of Westminster the United Provinces 
relinquished their conquest of New Netherland to the King 
of England. The sovereign States General had treated 
directly with Charles as sovereign. A question at once 
arose at Whitehall about the subordinate interest of the 
Duke of York. It was claimed by some that James' former 
American proprietorship was revived. 

"Yet, while the treaty of Westminster re-established the 
Articles of Capitulation agreed to by NicoUs and Stuyve- 
sant, who represented their sovereigns in 1664, it did not 
cure the imperfections subject to which the Duke had for 
nine years governed his American provinces. James's 
patent had been sealed while the Dutch were in quiet pos- 
session of New Netherland, and no new grant was made to 
him after the Treaty of Breda, which confirmed to the Eng- 
lish King his conquest of the Dutch provinces. Eminent 



lawyers ' very justly questioned ' the Duke's pretension to 
the territory which England had recently recovered ; because 
its cession to her sovereign by the Dutch government had 
given no strength to original defects. James was now obliged 
to give up the claim as of English right which he and his 
brother had formerly maintained. The opinion of counsel 
having been taken, they advised that the Duke's proprie- 
torship had been extinguished by the Dutch conquest, and 
that the king was now alone seized of New Netherland, by 
virtue of the Treaty of Westminster. The jus postliminii 
did not obtain in New York. 

"A new patent to the Duke of York was therefore sealed. 
By it the king again conveyed to his brother the territories 
he had held before, and granted him anew the absolute 
powers of government he had formerly enjoyed over British 
subjects, with like additional authority over ' any other per- 
sons ' inhabiting his province." 

The second patent was identical with the first. 

"To quiet any controversy about the jus postliminii, 
Andros issued a proclamation on November 9th, 1674, that 
all former grants, privileges, or concessions heretofore 
granted, and all estates legally possessed by any under His 
Royal Highness, before the late Dutch government, as also 
all legal judicial proceedings during that government, prior 
to my arrival by these parts, are hereby confirmed, and the 
possessors by virtue thereof to remain in quiet possession 
of their rights. It is hereby further declared that the 
known Book of Laws formerly established and in force 
under His Royal Highness's government, is now again con- 
firmed by His Royal Highness, the which are to be 
observed and practiced, together with the time and manner 
of holding Courts therein mentioned as heretofore." (Brod- 
head Id. Vol. 2, p. 273). 

On this subject Hoffman says (Estates of N. Y. p. 92): 
" It can not be questioned at this day, that the right of dis- 
covery and occupation of New Netherland, and particularly 
of Ma;nhattan Island was in the Dutch, and that the claims 
of the English were unfounded." As this opinion appears 



to rest entirely upon Brodliead as its authority, it does not 
add much weight to that side of the controversy. 

On the other hand, we have among others, these ad- 
verse authorities : " From the time of the settlement, the 
English claimed New Netherland as part of Virginia, resting 
their claim upon the discovery of Cabot. In 1622 the English 
minister at the Hague demanded the abandonment of the 
Dutch settlements on the Hudson. Five years afterwards. 
Governor Bradford, of Plymouth, gave notice to Governor 
Minuit that the patent of New England covered the domain 
of New Netherland." (Lossing's Encyclopaedia of U. S. 
History, New York, Harper, 1881. Vol. 2, p. 997). 

" The States of Holland also made acquisitions in America, 
and sustained their right on the common principle adopted 
by all Europe. . . . The claim of the Dutch was always 
contested by the English, not because they questioned 
the title given by discovery, bat because they insisted on 
being themselves the rightful claimants under that title. 
Their pretensions were finally settled by the sword." (Mar- 
shall, Ch. J., in Johnson v. Mcintosh, 8 Wheaton U. S. B., 
p. 574). 

" The country granted by King Charles II. to the Duke 
of York, was held by the King in his public and regal char- 
acter, as the representative of the nation and in trust for 
them. The discoveries made by persons acting under 
authority of the government, were for the benefit of the 
nation ; and the Crown according to the British con- 
stitution was the proper organ to dispose of the public 
domain." (Johnson v. Mcintosh, Id., p. 598). 

In Martin v. Waddell, (16 Peters, U. S. Eep., p. 403,) 
Taney, Ch. J., in delivering the opinion of the Court, says : 
" The right of the King to make this grant, with all its pre- 
rogatives and powers of government, cannot, at this day, be 
questioned. But in order to enable us to determine the 
nature and extent of the interest which it conveyed to the 
Duke, it is proper to inquire into the character of the right 
claimed by the British Crown, in the country discovered by 
its subjects, on this continent, and the principles upon which 
it was parcelled out and granted. 



" The English possessions in America were not claimed hy 
right of conquest, but hy right of discovery. For according 
to the principles of international law as understood by the 
then civilized powers of Europe, the absolute rights of prop- 
erty and dominion were held to belong to the European 
nation by which any particular portion of the country was 
first discovered." pp. 408 and 409. 

" The grant to the Duke of York, therefore, was not of 
land won iy the sword ; nor were the government or laws he 
was authorized to establish intended for a conquered people. 
The country mentioned in the letters patent was held by 
the King in his public and regal character, as the repre- 
sentative of the nation and in trust for them." p. 409. 

" It (the letters patent) was an instrument on which was 
to be founded the institutions of a great political com- 
munity ; and in that light it should be regarded and con- 
strued. They (the letters patent) were made for the purpose 
of enabling the Duke of York to establish a colony upon 
the newly discovered continent to be governed, as nearly as 
circumstances would permit, according to the laws and 
usages of England." p. 412. 

In Canal Commissioners, v. The People, (5 Wendell, p. 
446,) Walworth, Chancellor, says : " On these principles it 
is contended that as the State was orginally settled by a 
colony of the Dutch, the rule of the civil law prevails as to 
all of our streams which are navigable with boats qr rafts 
above tide water. Or at least, that the rule of the common 
law on this subject was local ; was wholly inapplicable to 
the fresh water rivers of this State, and for that reason, was 
never in force in the colony. ■ 

" There might be some weight in the first of these objec- 
tions if the crown of Great Britain, or the colonial govern- 
ment had ever claimed this province by right of conquest. 
But it is a matter of history, that it was always claimed by 
right of discovery, and not as a conquered country, and that no 
fart of the civil law, as such, except that which was derived 
from England, has ever been in force in this colony. The 
recitals in the patent under which the relator claims title, 
show that the province was granted to the Duke of York 



as part of the domain of the crown, several months before 
the surrender to Sir Eichard NicoUs and before any at- 
tempt had been made to take possession thereof by force. 
The guaranty to the Dutch settlers of the peaceable enjoy- 
ment of their possessions did not alter the British claim to 
the country." 

In the same case, (17 Wendell p. 587,) the Chancellor 
further enforces the same doctrine. He says: "By the 
charter to the Duke of York of March 1664, under the great 
seal of England, it is declared in express terms that the 
laws to be established in the province, shall not be contrary 
to, but as near as may be agreeable to the laws and statutes 
and government of England. This charter therefore, was 
in itself an explicit declaration of the King's will that the 
laws of England should be established in this colony ; and 
ahsolutely deprived the Duke of the power of retaining the 
laws of the ancient Dutch settlers, and thereby the Laws of 
England then in force ipso facto became those of the col- 
ony, immediately upon the surrender of the Dutch to Gov- 
ernor NicoUs in August of the same year." 

Finch, J. in Mayor v. Hart, 95 N. Y. 450, in delivering 
the opinion of the Court, says: "Two years earlier the 
Dutch surrendered New Amsterdam to Colonel NicoUs, who 
with an armed force, asserted the right and authority of the 
Duke of York and EngUsh government. The common law 
of England entered the City with him." 

Mr. Gould in his admirable treatise on the Law of 
Waters, and Biparian Eights, says, p. 67 : " In territories 
acquired by discovery, the rights of the new settlers are 
determined by the laws of the mother country, which become 
immediately applicable ; but in lands acquired by conquest, 
the conqueror may prescribe what law he" pleases. The 
early English settlements in this country, upon the Atlan- 
tic coast, were of the former class, the lands which were 
occupied by the colonists being claimed by the crown of 
England by right of discovery. A grant from the king 
could alone confer title to the soil, and was the only source 
of authority for exercising the powers of government over 
the lands so granted. The absolute right of property and 



8 

dominion was thus held to belong to the European nation 
by which any particular portion of the country was first 
discovered, as if it had been without inhabitants. . . 
. . In New York, which was settled by the Dutch, with 
whom the civil law prevailed, the province was claimed by 
right of discovery, when it passed into the possession of the 
English, and being re-established as a British colony, the 
common law of England was applied in controversies 
respecting its waters." 

By the constitution of the State of New York of 1777, it 
is declared " that such parts of the common law of England 
and of the statute law of Great Britain and the acts of the 
legislature of the colony of New York, as together did form 
the laws of the colony on the 19th day of April, 1775, 
should be and continue the Laws of this State." 

These authorities show conclusively that the Dutch never 
had any right to New Netherland ; that the title of Great 
Britain was absolute and indisputable. They further show 
in the words of Chancellor "Walworth, " that no part of tlie 
civil law, as such, except that which was derived from Eng- 
land, has ever ieen in force in this colony." And it follows 
that all questions arising out of grants and interests in real 
property, derived under the Dutch government, must be 
construed and determined by the laws of England, as they 
existed prior to the American revolution. 

There is no authoritative statement of just what the 
Roman Dutch law was, to what extent it embodied the 
civil law, or in what respects it differed from the common 
law. 



CHAPTER III. 
The Indian Titles. 

As to these the doctrine as recognized by the Supreme 
Court of the United States is, that the titles and right to 
possession in America were by discovery, and that the 
Indian tribes were regarded as temporary occupants of the 
soil ; that this doctrine was as applicable to the Dutch 
Government as to the English sovereign. (8 Wheaton 595, 
16 Peters 367, swpra.) 

The sovereignty and ultimate title was in the European 
nation, which made the discovery, but the immediate right 
of possession was in the Indians. The claims set up and 
asserted amounted to little more than a pre-emption, or 
right of purchasing from the Indians, all the lands within 
the bounds of their respective discoveries, to the exclusion 
of other nations. 

The charter and patents for lands in this State, before 
the Indian titles were extinguished, gave only the ultimate 
fee or right of dominion after such extinguishment. The 
title of the Indians by occupation has been uniformly 
acknowledged both by the Colonial and State Govern- 
ments. 

Pr. Bronson, Justice, Ogden v. Lee, 6 Hill, p. 548. 

The occupation of Manhattan Island by the Dutch, prior 
to the appointment of Peter Minuit, the first Governor, in 
1624, was merely by sufferance, but it was then determined 
to make a permanent settlement thereupon. Accordingly 
one of the first acts of the Director, after his arrival at 
New Amsterdam, was to purchase from the Indians the 
Island of Manhattan, which he did in the year 1626, for the 
sum of sixty guilders. The Island was supposed to con- 
tain about twenty-two thousand acres. 

The Dutch Government thus united in itself the entire 
estate in accordance with the rules above laid down. " The 
Director-General was absolute, as representing the sov- 
ereign authority. He extinguished Indian title to land, sanc- 
tioned all purchases from the aborigines, erected Courts, 



10 

made laws, issued ordinances, granted lands, incorporated 
towns, imposed taxes, and acted in a judicial capacity." 

O'Callaghan History of New Netherlands, Vol. 1, pp. 89, 
90, 100. 

At the time of the British entry in 1664, the Village of 
of New Harlem was a flourishing settlement. It was a Town 
in fact, although it is probable that no formal charter had 
been granted. The first NicoUs' Patent, speaks of it as a 
"town and lands thereto belonging." Two subsequent con- 
firmations were given. These will now be considered. 



CHAPTER IV. 
The Harlem Patents Interpreted. 

The first and original Harlem Patent was granted by 
Governor NicoUs in May, 1666. The caption of this patent 
as recorded in the Office of the Secretary of State, reads : 
"A Patent granted unto the Freeholders and Inhabitants of 
Harlem, alias Lancaster, upon the Island of Manhattan." 

The patent recites that : " "Whereas there is a certain 
Town or Village commonly called or known by the name 
of New Harlem, .... now in the tenure or occupation 
of several freeholders and inhabitants, who have been at 
considerable charge in building as well as manuring, plant- 
ing, fencing the said town and lands thereunto belonging. 
Now for a confirmation unto the said freeholders and inhab- 
itants in their enjoyment and possession of their particular 
lots and estates, in said town, and also for the encourage- 
ment to them in the further improvement of the said lands, 
... I have thought fit to ratify, confirm and grant, and by 
these presents do ratify, confirm and grant unto the said 
freeholders and inhabitants, their heirs, successors and assigns, 
and to each and every of them tJteir particular lots and 
estates, in the said Town, or any part thereof ; and / do like- 



11 

• 

wise confirm and grant unto the freeliolders and inhabitants 
in general, their heirs, successors, and assigns, the privileges 
of a Town; but immediately depending on this City, as 
being within the liberties thereof. Moreover for the better 
asc3rtaining of the lands to the said Town belonging, the 
extent of their bounds shall be as follows, viz.: That from 
the west side of the fence of the said Town, a line run due 
west four hundred English poles without variation of the 
compass, at the end whereof another line being drawn to 
North and South-with the variation, that is to say, North to 
the very end of a certain meadow ground, commonly called 
the Round Meadow, near or adjoining to Hudson Eiver, 
and South to the Saw Mills, over against Hoog Island, com- 
monly called Ferkins Island. It shall be the West bounds 
of their lands, and all the lands lying, being within the said 
line, so drawn North and South, as aforesaid, eastward to 
the town and Harlem Eiver, as also the North and East 
Rivers shall belong to the said town. Together with all the 
soils, creeks, quarries, woods, meadows, pastures, marshes, 
waters, fishing, hunting and fowling. And all other profits, 
commodities, emoluments and hereditaments to the lands 
and premises within the said line belonging, or in any wise 
appertaining with their and every of their appurtenances ; 
to have and to hold, all and singular, the said lands, heredita- 
ments and premises, with their and every of their appur- 
tenances, and of every part and parcel thereof, to the said 
freeholders and inhabitants, their heirs, successors, and 
assigns, to the proper use and behoof of the said freeholders 
and inhabitants, their heirs, successors and assigns forever. 
" It is likewise further confirmed and granted, that the 
inhabitants of the said Town shall have liberty, for the con- 
veniency of more range of their horses and cattle, to go far- 
ther west into the woods, beyond the aforesaid bounds, as 
they shall have occasion, the lands lying within being 
intended for plowing, home pasture and meadow gro.unds 
only ; and no person shall be permitted to build any man- 
ner of house or houses within two miles of the aforesaid 
limits or bounds of the said town, without the consent of 
the inhabitants thereof. And the said freeholders and 



12 

inhaMtants of the said Town, are to observe and keep tlie 
terms and conditions hereafter expressed, that is to say : 
That from and after the date of these presents the said 
Town shall no longer be called New Harlem, but shall be 

known and called by the name of Lancaster And 

the freeholders and inhabitants, their heirs, successors and 
assigns, are likewise to render and pay all such acknowl- 
edgments and duties as already are or hereafter shall be 
constituted and ordained by his Eoyal Highness, the Duke 
of York, and his heirs, or such Governor and Governors as 
shall from to time be appointed and set over them. Given 
under my hand and seal, at Fort James, in New York on 
Manhattan Island, the day of May, in the eighteenth 

year of the reign of our sovereign Lord Charles the Second, 
by the grace of God, King of England, Scotland, France 
and Ireland, Defender of the Faith, &c., and in the year of 
our Lord God, 1666. 

" ElCHARD NiCHOLLS." 

The Patent first confirms and grants unto the " said free- 
holders and inhabitants the enjoyment and possession of 
their particular lots and estates in the said town, and it 
likewise confirms and grants unto the freeholders and 
inhabitants in general, their heirs, successors and assigns the 
privileges of a town, but immediately depending upon this 
City, as being within the limits thereof, and that for the 
better ascertaining of the limits of the said lands to the said 
Town belonging, the extent of their bounds shall be as fol- 
lows, &c. To have and to hold, all and singular the said 
lands, hereditaments, and premises, with their appurtenan- 
ces, unto the said freeholders and inhabitants, their heirs, 
successors and assigns forever." 

The grant was made to the freeholders and inhabitards as 
a community, and to their successors. The patent con- 
stituted them a corporation. The unappropriated or com- 
mon lands, by this charter became invested in the commun- 
ity, the freeholders and inhabitants in their corporate cap- 
acity, in trust for said town. 



13 

Denton v. Jackson (or H&mpstead, town of) 2 Johnson, 

Cy., E., p. 324:-327. 
TJie Mayor, c&c. v. Hart, 16 Hun, p. 381, and 
Same case, 95 N. T., p. 450, 
Atkinson v. Bowman, Gen. T., 2d Dist., N. Y. State, 

Eep., Vol. 5, p. 456. 
Rogers v. Jones, 1 Wend., 238. 
Breen v. Zocke, N. Y. S. E., Vol. 11, p. 288. 

The patent granted by Governor NicoUs in 1667 was not 
a new patent, but a confirmation of the first, and intended 
to make that patent more definite and certain as to the 
limits and description of the land granted, and to restore 
the name of New Harlem to the town in place of Lancas- 
ter, which was unacceptable to the inhabitants. 

The Mayor, t&c., v. ITart, 16 Hun, 382; Eiker's His- 
tory, p. 265 ; Eiker's Hist, of Harlem, 255. 

In this case. Judge Daniels says : " These patents were 
made and delivered in May 1666, and October 1667, for 
that which followed them in 1686 (meaning the Dongan 
patent) was merely confirmatory of the preceding grants. 
By these two prior patents the lands described and the 
privileges mentioned in them were given and granted to the 
freeholders and inhabitants of what is stated at that time 
became the town or village of New Harlem." The grants 
made by these patents were not to individuals, but to the 
town or village whose prosperity and growth had attracted 
the attention of the colonial governor. The dates in this 
report are erroneously printed October, 1666, instead of 
1667, and 1668, instead of 1686. 

In Breen v. Locke, id. p. 380, the Court holds that the 
" Nicolls patents granted to the freeholders of Harlem a tract 
of land bounded," etc., and on page 391: "Our conclusion 
that the land in question was conveyed to the freeholders 
and inhabitants by the patents already mentioned." See 
also the act of the legislature of March 28, 1820, chapter 
115, providing for the appointment of trustees of the free- 



14 

holders and inhabitants of Harlem, relative to the sale of 
the Harlem Commons. 

The confirmatory patent of Governor McoUs adds to the 
description : The island is called "Vercher's or Hogg Island, 
in the Sound or East river," and after the words Harlem 
river is added, " or any part of the said river on which this 
island doth abut"; and also . . . "doth and shall 
lelong to the said Town." Also " four lots of meadow ground 
upon the main, marked with the numbers 1, 2, 3, 4, over 
against the Spring," . . . "With a small island com- 
monly called Stony Island, lying to the East of the Town 
and Harlem River, going through Bronk's Kill, by the Little 
and Great Barne's Islands, upon which there are four other 
lots of meadow ground marked with Nos. 1, 2, 3, 4." 

This confirmation patent recites that the village or town 
commonly called New Harlem is in the tenure or occupa- 
tion of several of the freeholders and inhabitants, settled 
there iy authority, and that there are also settled thereupon 
a competent nuinber of families, capable to make a township, 
and that for a confirmation to the said freeholders and inhab- 
itants in their possession and enjoyment of the premises, 
and also for the further improvement of the said lands it 
ratifies, confinns and grants unto Thomas Delavall, Esq., 
John Verveelen, Daniel Tourneur, Joost Oblinus, and 
Eesolved Waldron, as patentees, for and on behalf of 
themselves and their associates, the freeholders and inhab- 
itants of the said town, their heirs, successors and assigns, 
all that tract, etc. The habendum is to the patentees, and 
their associates and successors. 

The associates of the five patentees named in this con- 
firmation patent meant the freeholders and inhabitants at 
large. 

Denton v. Jackson, supra, p. 826. 

The, individuals named in this patent were created a 
Board of Trustees for ihe freeholders and inhabitants and 
commonalty of the town, and their successors. The grant 
was one to the freeholders and inhabitants of the town, 
and it was to be in trust for the freeholders, and. inhabitants. 



15 

Atkinson v. Bowman, N. Y. State Eeporter, v. 5, p. 47. 
Trustees of Easthampton v. Kirk, 68 N. Y. p. 459 ; same 
case, 84 N. Y. p. 261. 

The word heirs in the grant refers to the estates which 
the freeholders and inhabitants held at that time in sever- 
alty, as their respective individual property. The word 
successors refers to the lands, which by the charter were 
granted to the freeholders and inhabitants in common, for 
the uses of the township. The word successors is a well- 
known technical term applied to corporate succession, and 
it coupled with the grant of the lands all the privileges and 
immunities belonging to a town. Both parties had the 
same object in view, the town which applied and the gov- 
ernment which granted. 

Denton v. Jackson, supra, p. 327. 

The Dongan patent of March, 1686, was simply a con- 
firmation and ratification of the rights granted under the 
original NicoUs patent. 

Mayor, etc., v. Hart, 16 Hun, pp. 381-4. 

It begins by reciting that : "Whereas Eichard NicoUs, 
Esquire, formerly Governor of this province, by his writing 
or Patent bearing date the eleventh day of October, 1667, 
did give, ratify, confirm and grant unto Thomas Delavall, 
Esq., John Verveelen, Daniel Tourneur, Joost Oblinus and 
Eesolved Waldron, as Patentees for and on behalf of them- 
selves and their associates, the freeholders and inhabitants 
of New Harlem, their heirs, successors and assigns, all that 
tract, etc., to have and to hold, unto the said patentees 
and their associates, their successors and assigns, etc. 
"Whereas the present inhabitants and freeholders ' of the 
Town of New Harlem aforesaid have made their applica- 
tion unto me, for a more full and ample confirmation of 
their premises to them, their heirs, successors and assigns 
forever, in their quiet and peaceable possession ;" and it 
further recites, " that whereas Eichard NicoUs, Esq., did 
ratify, confirm and grant unto the said 'patentees and their 



16 

associates, and their successors and assigns, all the rights 
and privileges belonging to a town," . . . ."Now know 
ye, that in consideration of the premises, and of the Quit 
Eents hereinafter reserved, I have given, granted, ratified 
and confirmed, and by these presents do give, grant, ratify 
and confirm unto John Delavall, etc. (naming 23 in all), as 
patentees, for and on behalf of themselves, the present free- 
holders and inhabitants of the Town of New Harlem, their 
heirs, successors and assigns." It amplifies the description 
in the grant by adding the words, " messuages, tenements, 
houses, buildings, barnes, stables, orchards, gardens, pas- 
tures, mills, mill-dam, runs, streams, ponds, underwoods, 
trees, timber, fencings, liberties and privileges." The "Eound 
Me&dows" nfear or adjoining unto the " Hudson's Eiver," 
mentioned in the patent, was a parcel of salt meadow near the 
foot of. 129th Street. The insertion of the names of twenty- 
three individuals in the patent, in lieu of the five in the 
second NicoUs patent, was simply an enlargement of the 
Board of Trustees or representatives of the town ; the pat- 
ent was in confirmation of tJie rights already granted and 
vested. (See cases above cited.) 

The original patent of NicoUs conferred the grants and 
established the rights of the patentees ; the two subsequent 
patents show clearly and conclusively that they were merely 
confirmatory, and that the persons named therein took no 
interest or estate in the common lands granted, in their 
individual capacity. So far as they respectively owned 
land, the patents simply confirmed to them in common with 
their associates, the freeholders and inhabitants, their partic- 
ular lots and estates. Even if the individuals named in the 
second and third patents had supposed that the grants 
were made for their personal benefit, that could not change 
the legal meaning and effect of the patents, or the rights 
therein granted and vested and the obligations imposed. 

See cases above cited. Also copies of the patents in full 
(Appendix C.) And the acts of Colonial Assembly and 
Council of 1772, 1774 and 1775, to establish and settle the 
line or lines of division between the City of New York and 
the Town of Harlem. 



17 



CHAPTEE V. 

THE FIRST HARLEM FARM. 

Montague's Flat and Montague's Point. 

This was alloted to and settled upon by Henry de For- 
est. He and his brother Isaac sailed from the Trexel Octo- 
ber 1st, 1636, in the yacht Eensselaerwyck, and arrived at 
New Amsterdam, before the winter of that year set in. He 
had been recently married and was accompanied by his 
bride. He at once obtained an allotment of . two hundred 
acres of land, from Director Wouter Van Twiller, the suc- 
cessor of Director Minuit. He located on the "Northeast 
end of the Island" on the "Flat lands" at the foot of the 
hills and between two kills. He immediately went into 
possession, and began the erection of improvements. 
"During the winter a farm-house was begun in the Dutch 
style, forty-two feet long by eighteen feet wide, with two 
doors, the roof was thatched, and as a protection against 
the Indians, the house was surrounded by a high, close 
fence of heavy, rounded pickets. The enclosure was ample 
for out-buildings, incltiding a house for curing tobacco." 

De Forest died in July of the following summer, leaving 
his widow, but no children surviving him. His friend 
Johannes Montagne had arrived from Holland the previous 
January, and took charge of De Forest's farm after his 
decease and finished the house and barn and harvested the 
crops. 

Eiker's Hist. Id. pp. 101, 139, 143. 

The next year Andries Hudde, an ex-member of Van 
Twiller's council, married the widow of De Forest. He 
applied to .Director Kieft, the successor of Van Twiller, in 
right of his wife and obtained a ground brief for the farm. 

Doc. Colonial Hist, of N. Y., Vol. 14, p. 11. 

The following is a copy of the deed : 

"Patent for a tract of land at Harlem, New York. We, 
the Director and Council of New Netherland, &c., &c., here- 
with testify and declare, that by virtue of the Freedom and 



18 

Exemptions granted to Patroons, Masters and private per- 
sons, on the 7th day of June, 1639, we have granted, trans- 
ferred, ceded and conveyed, as lawful, true and free posses- 
sion, as we herewith transfer, cede, surrender and convey 
to and for the behoof of Andries Hudde, a piece of land 
containing one hundred morgens, situate upon the north- 
east of the Island, the Manhattas, iehind Curler's land, on 
the condition that he and. his successors shall acknowledge 
the aforesaid Lords Directors as their masters and patroons, 
and pay, after the end of ten years, commencing with the 
occupation or cultivation of the lands which he owns, the 
tenth part of the produce given to the land by God, and 
from this time forth for the house and lot deliver annually 
at Christmas to the Director, a brace of fat capons ; consti- 
tuting and substituting the aforesaid Hvdde in our place 
and stead, real and actual possession thereof, and at the 
same time giving him full and irrevocable power, authority, 
and special charge, tamquam actor et procurator in rem 
suain ac propriam, that the said land by the said Hudde, or 
who thereafter may obtain his interest may be entered 
upon peaceably, settled, occupied, cultivated, held, used 
and also therewith and thereof be done, bargained and dis- 
posed of, as he would do with his own lands acquired by 
legal titles, without they, the grantors, in their said quality 
thereto having or reserving any part, action, ownership 
other than before recited, but for the behoof aforesaid, now 
and forever wholly and lastingly desisting, renouncing and 
withd|[awing by these presents, and moreover promising 
this their conveyance forever firmly and inviolably and irre- 
vocably to maintain, carry out, and fulfill, all under the rules 
of the law, without reservation or deceit, and in good faith. 
In testimony whereof we have confirmed this by our usual 
signature under seal. 

"Done at Fort Amsterdam in New Netherland in the 
Manhattas, this 20th day of July 1638. 

" William Kieft, Director." 

Note on the same page. " This tract originally in the 
possession of Henry De Forest (who died in 1637) came by 



19 

the marriage of his widow, with Andries Hudde, into the 
possession of the latter. Its Indian name Muscota, means 
a flat, and it was later known as Montagne's Flat." O'Cal- 
laghan (Hist, of New Netherland), in referring to the farm, 
says (Vol. 1, p. 185) : " On Manhattan Island, Montagne, 
and other private individuals were beginning to make 
improvements August 1638." And on page 186, note 1. 
" La Montagne's farm was called Vredendael, or Valley of 
Peace. It belonged to Hendrick de Forest, deceased, and 
cost 1800 guilders or $720. This farm was one hundred 
morgens or two hundred acres in superfices. It is described 
as lying between the hills and kills and at a point called 
Hechawanes situate ietween two kills." 

" Alb. Eec. G. G. 51, Vol. 1, 65. 

"Vol. 2, 33. Vol. 3, 419." 

This tract is also mentioned in Brodhead's Hist, of N. T. 
under date of July 20th, 1638, Vol. 1, p. 279, in the foUow- 
ing terms : " Near Corlears Hook on Manhattan Island, a 
plantation was bought by Andries Hudde, the first Commis- 
sary of Wares, and La Montagne and others began to make 
improvements." And in a note on same page, " Montagne's 
farm on Manhattan Island was caUed Vredendael, or Peace- 
ful Vale. It was between Eighth Avenue and Harlem 
Biver." 

Holland Doc. Vol. 8, p. 3251. See note on p. 759. 

The designation near " Corlears Hook" by the historian, 
is misleading. This was the name of the well-known point 
at the junction of Cherry and Walnut Streets. Th« land 
intended to be described was Curler's Hook, or, as it was 
afterwards called Van Keulen's Hook, the names of the 
first and second owners of the point of land bounded on the 
South by the Harlem Creek, and on the East by the Har- 
lem Eiver. In regard to this land, Riker says in his his- 
tory (pp. 132, 141): "Of those who early manifested an inter- 
est in this particular section (i. e., Harlem) were Wouter Van 
Twiller, now Director-General of the colony and his friend 
Jacobus Van Curler, who bore the title of Jonkheer. They 
were both young men from the same place, Nieukerck, and 
Van Curler had accompanied the new Director hither in 



20 

1633. A residence of three years giving them an opportu- 
nity to spy out the land, Van Twiller had improved it by 
selecting for himself several choice tracts in the vicinity of 
New Amsterdam, among which was the island over against 
the Flat, Ward's Island. The Jonkheer in his rambles had 
fixed his covetous eyes upon these rich Flats, and with 
leave of the Director, had pre-empted a goodly section 
bordering upon the river, opposite the island referred to, 
and which obtained the name of Otter Spoor or Otter- 
track." This selection was according to this statement 
made in 1636 ; but no formal grant was then given for the 
land. It appears that Van Curler did not go into posses- 
sion until after De Forest had bpgun his improvements. 

Biker says : " However, Jonkheer Van Curler now set 
about improving his fine tract of two hundred acres, lying 
next to the De Forest plantation, but to describe it in 
familiar terms, situate North of Mill Creek at 108th Street, 
and extending from Harlam Eiver to near Fifth Avenue. 
He erected a dwelling house and out-buildings, and pro- 
cured all things necessary for a well-regulated plantation, 
with the no less needful boat and fixtures, for passing to 
and from New Amsterdam." This account of the Van 
Curler tract is given for the purpose of locating more defi- 
nitely the property embraced in the deed to Hudde. 

The outlying lands were of little value without inhabit- 
ants, and the government was not much concerned as to 
the amount of land taken or its precise location, provided 
it was actually occupied and improved by desirable settlers. 
This accounts for the want of precision as to the boundaries 
of the early farms, and the quantity of land they contained. 

As there was, aside of the Indian trails, no mode of com- 
munication by land with New Amsterdam, most of the 
intercourse was carried on by water. It is, therefore, 
highly improbable that De Forest failed to avail himself of 
this advantage in selecting the site for his farm and future 
home. With the exception of the tract -recently assigned 
to Van Curler, the whole territory was open to him. The 
Point Eecha wanes, was the only mode of passing by land 
to the river, from that part of the flat lands. The kill on 



21 

the northerly side of the Point provided a safe harbor for 
boats. The Point was bordered by the salt meadows so 
highly prized by the Dutch farmer. The point was an 
almost indispensable adjunct to the farm. The ground 
brief granted to Dr. John Montagne shows that this Point 
was in fact included in the grant to De Forest. The estate 
of De Forest was indebted to Montagne for advances made 
in the improvement and management of the farm. The 
Director and Council sitting as a Court ordered the prop- 
erty to be sold at auction in payment of the debts due by 
De Forest's estate. Montagne became the purchaser, and 
the property was conveyed to him by the following descrip- 
tion: 

" We, William Kieft, Director-General and the Council, 
residing in New Netherland on behalf of the High and 
Mighty Lords the States General of the United Nether- 
lands of Orange and the Honorable Messieurs, the Manag- 
ers of the Incorporated West India Company, do by these 
presents acknowledge and declare that we on this day, the 
date under-written, have given and granted unto Sieur 
Johannes La Montagne, Counsellor of New Netherland, a 
piece of land situate on the Island of Manhattan, known by 
a name in the Indian language, which in the Nether Dutch 
signifies Flat Lands, containing one hundred raorgen in the 
flat, lying between the hills and kill, and a point named 
Bechawanes, stretching betwixt two kills, till to the East 
River (which above described land was occupied by Hen- 
drick de Forest deceased, and has been purchased by said La 
Montagne at public auction in the Fort for seventeen hun- 
dred guilders), with express conditions and terms that he, 
Johannes La Montagne, or whoever by virtue hereof may 
accept his action shall acknowledge the Honorable Manag- 
ers aforesaid as his Lords and Patroons, under the Sover- 
eignty of their High Mightiness the Lords States General, 
and obey their Director and Council here in all things, as 
good inhabitants are in duty bound to do ; provided further 
that they subject themselves to all such burdens and 
imposts as are already enacted, or may hereafter be enacted 
by their Honors ; constituting therefor the said Sieur La 



22 

Montagne, or whoever may obtain his action, in our stead 
in real and actual possession of the aforesaid lot and land, 
giving him by these presents full power, authority and spe- 
cial order the aforesaid parcel of land to enter upon and 
cultivate, inhabit and use, as he would lawfully do with 
other his patrimonial lands and effects, without me the 
grantors in the quality aforesaid, thereunto having reserved 
or saving any, even the slightest part, action or control 
whatever, but to the behoof as aforesaid, from all desisting, 
from now henceforth and forever. Promising moreover, 
this transport firm, inviolable and irrevocable to keep, 
respect, and fulfill, all under the penalty provided therefor 
by ' law. In witness these presents are by us signed, and 
confirmed by our seal in red wax hereto appended. 

"Done at the Fort Amsterdam, in New Netherland, the 
9th day of May, 1647. 

William Kieft." 

Eiker's History of Harlem, p. 166. See Map, Appendix 
I, showing these farms and surrounding territory. 

This deed was not delivered until nearly ten years after 
the disastrous Indian war that was instigated by the wrong 
headed obstinacy of Director Kieft, in February, 1643, and 
not brought to a close until the formal treaty of peace, 
made with the Indians at Fort Amsterdan in August, 1645. 
The Indian troubles resulted in the desolation of all the 
fai'ms in Harlem. The beautiful Flats became barren 
wastes, and a similar fate was shared by nearly all the out- 
lying settlements. Many of the farmers and their families 
were murdered, and the surviving population fled to the 
Fort and its vicinity for safety. " On the Island of Man- 
hattan, from the North until the Fresh Water (i. e. Collect 
Pond, now the site of the City Prison) there is not more at 
this date, than five or six places inhabited; these are threat- 
ened by the Indians every night with fire, and by day by 
the slaughter of both people and cattle." 

Holland Documents, Vol. 3, p. 134, &c. 
O'Callaghan's Hist. Vol. 1, p. 294. 



23 
CHAPTEE VI. 

Tlie Village of New Harlem. 

The desultory warfare which followed the formal treaty 
of peace of 1645, discouraged the settlers from re-occupy- 
ing their deserted farms. This ultimately brought about 
the founding of the Village of New Harlem in 1658. 

The establishment of the village is related by O'Cal- 
laghan and Brodhead, but Eiker gives the most substantial 
and satisfactory account. He says (page 186) : "As to the 
Zegendal lands and others adjacent, the Director and Coun- 
cil, with a just regard for all the interests involved, both of 
a public and private nature, resolved upon forming a vil- 
lage there, by laying out suitable building and forming lots 
to be sold to settlers at a fixed price per morgen, and to 
apply the moneys so derived for the benefit of the late pro- 
prietors, their heirs or creditors. The Van Keulen tract, 
besides the Kuyter lands {i. e., Zegendal) was to be dis- 
posed of, with the Swits bouwery lying between jthem, and 
the cleared portion of the latter was fixed upon as the vil- 
lage site. As Stuyvesant owned a fourth part of the Kuyter 
tract, he reserved his share, probably to avoid unpleasant 
complications, so that only 150 morgen of this tract were 
laid out into lots. These lands being deemed ample for 
the wants of the proposed village for some time to come,, 
the Vreden'dal, or Montague's farm, was not as yet included; 
in fact, it was held that it could not from thence be con- 
veniently cultivated, being over a kill." 

" The government had another important object in view 
besides that of obtaining its dues or promoting the settle- 
ment of this district. This was to enhance the safety of 
the city of New Amsterdam, as would naturally result from 
the planting of a strong village with a garrison on this fron- 
tier end of the island. But in carrying out this design, 
neither the honest efforts of the late owners to comply with 
the terms of their grants by improving their lands, nor 



24 

their misfortunes and losses were lost sight of. True, these 
lands had been granted subject to the condition that the 
soil should be brought under tillage. . . . Under the 
Dutch rule it had always been held " that a private farm 
or plantation ought never to be prejudicial to a village." 
It was under this conjunction of circumstances that called 
forth the following ordinance : — 

" The Director-General and Council of New Netherland 
hereby give notice that for the promotion of agriculture, 
the security of this Island and the cattle pasturing thereon, 
as well as for the further relief and expansion of this City 
Amsterdam, in New Netherland, they have resolved to form 
a new Village or Settlement, at the end of this Island, and 
about the land of Jochem Peterson, deceased, and those 
which are adjoining to it. 

" In order that the lovers of agriculture may be encour- 
aged, the proposed new village aforesaid is favoured by the 
Director-General and Council with the following Privileges : 

" First : Each of the inhabitants thereof shall receive by 
lot, in full ownership, 18 or 20 to 24 morgen of arable land; 
6 to 8 morgen of Meadow (i. e., salt marsh) ; and be exempt 
from tenths for fifteen years, commencing next May, on 
condition that he pay within the course of three years, in 
installments. Eight guilders for each morgen of tillable land 
for the behoof of the interested or their creditors, who are 
now or formerly were driven from the aforesaid lands, and 
have suffered great loss thereon. 

"Secondly: In order to prevent similar damage from 
calamities or expulsions, the Director-General and Council 
promise the Inhabitants of the aforesaid Village to protect 
and maintain them with all their power, and when notified 
and required, to assist them with twelve to fifteen soldiers 
on the monthly pay of the Company, the Village providing 
quarters and rations. This whenever the inhabitants may 
petition therefor. 

" Thirdly : When the aforesaid Village has 20 to 25 fami- 
lies, the Director-General and Council will favour it with 
an inferior Court of Justice ; and for that purpose a double 
number is to be nominated out of the most discreet and 



25 

proper persons, for the first time by the Inhabitants and 
afterwards by the Magistrates thereof, and presented annu- 
ally to the Director-General and Council to elect a single 
number thereof. 

"Fourthly: The Director-General and Council promise 
to employ all possible means that the inhabitants of the 
aforesaid Village, when it shall have the above-mentioned 
number of families, will be accommodated with a good, 
pious, orthodox minister, toward whose maintenance the 
Director-General and Council promise to pay half the 
salary, the other half to be supplied by the inhabitants in 
the best and easiest manner, with the advice of the Magis- 
trates of the aforesaid Village, at the most convenient time. 

" Fifthly : The Director-General and Council will assist 
the Inhabitants of the aforesaid Village, whenever it will 
best suit their convenience, to construct with the Com- 
pany's negroes, a good wagon road from this place to the 
Village aforesaid, so that people can travel hither and 
thither on horseback and with a waggon. 

" Sixthly : In order that the advancement of the afore- 
said new Village may be the sooner and better promoted, 
the Director-General and Council have resolved and deter- 
mined not to establish or allow to be established, apy new 
Village or settlement, before and until the aforesaid Village 
be brought into existence ; certainly until the aforesaid 
number of inhabitants is completed. 

" Seventhly : For the better and greater promotion of 
neighborly correspondence with the English of the North, 
the Director-General and Council wiU at a more convenient 
time authorize a ferry and a suitable scow, near the afore- 
said Village, in order to convey over cattle and horses, and 
will favour the Village with a cattle and horse market. 

"Eighthly: Whoever are inclined to settle themselves 
there or to take up Bouweries by their servants, shall be 
bound to enter their names at once, or within a short time, 
at the office of the Secretary of the Director-General and 
Council, and begin immediately with others to place upon 
the land one able-bodied person, provided with proper 
arms, or in default thereof, to be deprived of his right. 



26 

"Thus done in the meeting of the Director and Council 
held in Fort Amsterdam, in New Netherland, on the 4th of 
March, A.D. 1658." 

" The land of Jochem Peterson," mentioned in this Ordin- 
ance has reference to a tract of land granted to'Jochem 
Peterson Kuyter. It is described as a " farm of about 400. 
acres at Schorrakin," or as he called it Zegendael (Vale of 
Blessing). It was located along the Harlem Biver from 
about 125th Street to 148th Street, and running back inward 
to 5th and 8th Avenues. Kuyter's house on this farm was 
burned by the Indians, and we have the following interest- 
ing account of the affair in a "Declaration concerning 
the destruction of Jochem Peterson Kuyter's house by 
Indians." 

" This day, the 9th of March 1644, before me Cornelius 
Van Tievenhoven, Secretary of New Netherland appeared 
the under- written persons, who each for himself, at the re- 
quest of Jochem Peterson Kuyter, attest, testify and declare, 
.n place and with the promise of a solemn oath if need be, 
and thereunto required that their declaration is true. 

" Cornelis Cornellissen, from Utrecth, aged 22 years, 
declares that he stood sentry on the night of the 5th of 
March in front of the house of said Jochem Peterson being 
about two hours before day, near the corn rick, about fifty 
paces from the barn, when he, the deponent, saw a burning 
arrow, the flame whereof was as blue as the flame from 
sulphur, coming about twenty paces from the house, between 
the dung hill and the cherry door, which arrow fell on the 
thatch of the house ; and in consequence of the violent 
wind, the house was immediately wrapped in flames. He 
immediately heard the report of a gun in the same quarter 
that the arrow came from. The house was burned to the 
ground. Also that the English soldiers during the burning 
would not come out of the cellar, where they were sleeping, 
and remained therein till the house was destroyed. "Where- 
fore they obtained no help from the English." 

This statement is corroborated by Jan Hageman, aged 
22 years ; Peter Jansen, aged 24 years ; Jacob Lambersen, 
aged 20 years ; Dirck Gerritsen, aged 20 years. 



27 

Colonial Hist, of N. Y., Vol. 14, p. 53 

Kuyter was subsequently one of the ScJiepens (Council), 
and at the time of his death was Schout (Sheriff). He after- 
wards built another house on his farm, and was murdered 
in it by the Indians in 1654. 

Documentary Colonial Hist, of Ni Y., Vol. 14, p. 53. 

The family of John Montague desired to establish a set- 
tlement or village on their desolated farm " Vredendael ; " 
and presented the following petition to the Director and 
Council : 

" To the Noble, Great and "Worshipful, the Director-Gen- 
eral and High Council in New Netherland, Eepresent with 
due respect John de La Montague, Junior, Jacob Kip, who 
married the daughter of La Montagne, Senior, and William 
de La Montagne, for themselves and on behalf of the 
absent heirs, the true proprietors according to the letters 
Patent of the land lying hack of New Harlem, called Vreden- 
dael, or commonly Montague's Land, which is situated nearly 
a mile from New Harlem. And, Whereas from there it can not 
be conveniently cultivated, lying beyond a kill, whereon in 
time a water-mill for the use of said village can, and as they 
are informed, is actually to be made ; and whereas they the 
petitioners, for whose greater convenience it will not only 
serve, in the cultivation of their land there, but will be for 
the better protection of the village of New Harlem, as for 
the benefit of the said Mill, and also afford a resting place 
for strangers, whether they have lost their way, or be look- 
ing for their cattle, or any others — are inclined to form 
there a concentration of six, eight or ten families, to 
remain under the jurisdiction of New Harlem, in similar 
manner as this has been granted by your Honors to others ; 
they therefore with all respect petition that they may be 
allowed to establish such a concentration there either on the 
point of the flat land, opposite the place where the mill is to be 
built, or on the heights, near the spring, or otherwise where- 
ever your Honors may deem most proper within the juris- 
diction of New Harlem, which if your Honors are pleased 



28 

to permit, they promise to settle there before the next win- 
ter, six, eight or ten families. 

" Praying your Honors favourable consideration of this 
request, we remain your Honors' servants. 

" La Montagne, Juniob, 
Jacob Kip, 

William de la Montagne. 
"July 4, 1661." 

The petition was refused upon the following grounds : — 
" The request is dismissed, because it is tending to the 
great prejudice and retarding of the Village of Harlem ; 
and is also contrary to the privileges granted to said village 
some years ago." The decision was satisfactory to the 
inhabitants of Harlem. The village had been steadily 
growing, and at the close of 1661 contained over thirty 
adult male residents, mostly heads of families and free- 
holders. 

The following are the names of these pioneers: 

Michael Zyperus, Jan La Montagne, Jr., Daniel Tour- 
neur, Jean Le Roy, Pierre Cresson, Jaques Cresson, Phi- 
lippe Casier, David Uzille, Jaques Cousseau, Philippe 
Presto, Francois Le Sueur — Frenchmen. 

Simon de Euine, David Du Four, Jean Gervoe, Jan de 
Pre — Walloons. 

Direk Claessen, Jan Sneden, Michiel Jance Huyden, 
Lubbert Gerritsen, Meyndert Coorten, Aert Pietersen Buys, 
Segismundus Lucas — Hollanders. 

Jan Pietersen Slot, Nicolaes De Heyer, Jan Lawrens 
Duyts, Jacob Elderts Brouwer— Danes. 

Nelis Matthyssen, Morris Peterson Staeck, Jan Cogn — 
Swedes. 

Adolph Meyer, Adorn Dericksen, Hendrick Karstens — 
Germans. 

The influx of settlers at the new village had become so 
large that the demand for land caused the Director and 
Council to issue the following Order: 

" All Inhabitants of New Netherlands, especially those 



29 

of the Village of New Harlem, with all others who have or 
claim any lands thereabouts, are ordered and commanded, 
that within the space of three months from the date hereof, 
or at least before the first of January next, they shall have 
all the cultivated and uncultivated lands which they claim 
surveyed by the sworn Surveyor, and set off and designated 
by the proper marks ; and on the exhibition of the return 
of survey thereof, apply for and obtain a regular patent as 
proof of property, on pain of being deprived of their right : 
To the end that the Director-General and Council may dis- 
pose, as they deem proper, of the remaining land which 
after the survey may happen to fall outside the patents, foi* 
the accommodation of others. All are hereby warned 
against loss and after complaints. 

" This done in Eort Amsterdam in New Netherland, the 
fifteenth of September, 1661." 

Governor Stuyvesant determined, in order to supply this 
demand, to disregard some of the former ground Briefs, 
and among others Van Keulen's Hook and Montague's 
Flat. Dr. John de La Montagne was indebted to the Gov- 
ernment, and it was arranged that he should give up that 
part of his farm Vredendael known as the Flat, and that 
his son John should retain the Point Recha wanes, and take 
his full allotment there, and give up his allotment No. 1, on 
Jochem Pieters' land, and as a special immunity should 
enjoy the Point free from any future demands for town 
taxes. He was not to build or live upon the Point until 
the town saw fit to allow it. The Point was rated at 16 
morgen. His brother William was entitled to draw an 
allotment of 16 morgen of Montague's Flat, and the debt of 
Dr. Montagne was liquidated. 

Biker's History, pp. 200-209. 

This arrangement had the effect of casting some doubt 
upon the title to the Montague's Point Farm. For although 
it was set over to John Montagne, the younger, as the son 
and successor of his father, the title remained apparently 
*in Dr. John Montagne, in the absence of an express grant 
from him or the Director and Council. 



30 

The forfeiture of Dr. John Montagne's property no doubt 
extinguished, technically, the title to both Montagne's Flat 
and Montagne's Point. So that John Montague, the 
younger, had no paper title to the Point Farm. The titles 
to these two farms having been forfeited, reverted to the 
Government. 

That was the condition of affairs at the time of the Brit- 
ish occupation in 1664. John Montague was in possession 
of the Point under claim of title. The legal title was in 
the Dutch Government. By virtue of the surrender to 
Governor NicoUs that title passed to the Duke of York ; 
Governor NicoUs, as agent of the duk'i, granted the terri- 
tory of Harlem to the Freeholders and Inhabitants of that 
town, and with that grant went the title to the Point Farm, 
subject to the equitable claim of John Montague, Jr. He 
obtained the following deed from the Town authorities : 

" We, the Magistrates, with the vote and resolution of the 
Inhabitants of this Town, have granted forever and as 
hereditary, t* John de La Montague, a piece of land, with 
the meadows thereto annexed, named Montagne's Point, form- 
erly possessed by his late father, lying within our Town's 
jurisdiction, bounded on the North side by a creek called 
Montagne's Kill ; extending from the East Eiver unto a 
little fresh-water creek, running between Montagne's Flat 
and aforesaid Point; on the South side bounded by a 
creek, and a meadow and by hiUs, to the aforesaid little 
fresh-water creek, where the King's Majesty, his highway 
goes over, with the Meadows in the bend of Hellgate which 
Montague before named has had in exchange for the Town 
Lots meadows; with such rights and privileges as are 
granted us by patent and still remain to grant, provided he 
submit to such laws and servitudes as with us are common, 
and may be imposed, without that we or our Inhabitants 
now or in future days, shall have any claim thereupon, but 
as his other patrimonial property, may enter upon or use 
or sell, as he may resolve and shall choose savings the 
lord's right. For further security, and that our deed shall* 
have greater force and legal authority, we the Magistrates 



31 

and Constable tlie same subscribe, this 8th day of Febru- 
ary, Anno 1672, in New Harlem. 

"d. toueneur, 
Eesolyekt Waldbon, 
Johannes Veemelje, 
Dayid Des Moeest, 
Petee Eaelefsen, Constable." 

Biker's Hist., Id. pp. 192, 265, 288, 211. 

The effect of this deed was to remove the restrictions as 
to building and living upon the property, to make it sub- 
ject to taxes, and entitle it to a share on the distribution 
of the Common Lands. (See this deed, Appendix B, 2). 

In addition to the lands included in the above bounda- 
ries, the deed grants and confirms Montague's title to "The 
Meadows in the Bay of Hellgate." If there should be any 
lingering doubt in the mind of any one, owing to the fact 
that the grant to Dr. John Montague having been made by 
the government, the creeks would not pass by presumption, 
that doubt would not apply to the title derived under 
the deed, by the Town of Harlem, to John Montague the 
younger. Whatever title the state had in the creeks passed 
under the Harlem Patents. The deed of the town bounded 
the property on the North by Montague's Kill, and carried 
the title to the centre of it. It conveyed the land on both 
sides of the southerly creek, which formed the division 
between Montague's Point and the Meadows in the Bay of 
Hellgate, and therefore included the whole of the bed of 
that creek. 

See cases cited post. 

The history of this title is continued post, under the head 
of The McGown Marshes. 



32 

CHAPTEK VII. 
Tidal Creeks. 

PABT FIRST. 

Not all streams In which the tide ebbs and flows are prima facie 
navigable and public. 

To raise the presumption that they are public, there must be a 
public use or navigation. 

A private navigation may exist in tidal streams. 

The theory that all tidal streams are prima fade piiMid jwHs is 
not sustained by the English Common Law authorities. 

The treatise de jure maris is probably responsible for that theory, 
but it does not really teach that doctrine. 

The salt marshes and the intersecting creeks are prima fade pri- 
vate property. 

Common law definition of navigable rivers. 

The interpretation of the deeds from Kieft, Director- 
General, to Dr. John Montagne and from the town of Har- 
lem to John Montagne, the younger, involves an examina- 
tion of the law apphcable to tidal creeks. 

The deed to Dr. John Montagne conveys the two tracts 
Montagne's Flat and Montagne's Point. 

The land described as being between the hills and a kiU, 
being the former tract and the land described as " the point 
named Eechawanes, stretching between two kills, till to the 
East Kiver," being the latter tract. In construeing these 
deeds, the first question which, arises is as to the proper 
location of the boundary lines on the water courses. That 
involves an examination of the character of the streams and 
of the rules of law applicable to the interpretation of grants 
of land bordering upon small tidal streams. 

The " kills " mentioned in the deeds were the outlets of 
small fresh water brooks or rivulets in which the tide ebbed 
and flowed for a few hundred yards, and they were of mod- 
erate width, depth, and navigability. They were capable 
of floating vessels of small tonnage at high tide and pos- 
sessed a limited amount of navigable capacity. They were 



33 

not arms of the sea or of the East Eiver. That they were 
not arms of that river, may be inferred from the language 
of the grant, which describes the point as "stretching 
betwixt two kills till to the East Eiver." These creeks 
were not so situated as, or large enough, to raise the pre- 
sumption that they were public navigable rivers. If they 
had been without doubt, public navigable rivers, there 
would be no difficulty in fixing the boundary lines of the 
lands mentioned in the deed at the line of the ordinary 
high tide. If they had been wholly fresh water, not navi- 
gable streams, the boundary lines would with equal cer- 
tainty be the thread of the streams. 

It is the presence of the ebb and flow of the tide in small 
creeks and streams like those under consideration that 
causes the embarrassment as to the rights of the riparian 
owners of lands bordering on them. This is largely owing 
to a misapprehension of the law applicable to such 
streams. 

From a remote period the littoral proprietors had certain 
proprietary rights or interests in the seashore, the sea, and 
some tidal waters, which rights became involved with the 
common law of England. Many of these property rights 
probably grew out of occupation, appropriation and imme- 
morial custom. 

Bracton says : " Occupancy was the source of title to the 
sea and the seashore and pearls and gems, and other things 
found there, as well as islands which spring up in the sea, 
and derelict goods, belong to the occupant." 

Gould, supra, p. 6. 

Blackstone says (Vol. 1, p. 62): "The municipal law of 
England or the rule of civil conduct prescribed to the 
inhabitants of this kingdom, may with sufficient propriety 
be divided into two kinds. The lex non seripta, the unwrit- 
ten or common law, and the lex scripta, the written or stat- 
ute law. The lex non scripta, or unwritten law, includes not 
only general customs, or the common law properly so 
called, but also the particular customs of certain parts of 



34 

the kingdom, and likewise those particular laws that are by- 
custom observed only in certain Courts and jurisdictions 
.... (p. 64.) However, I therefore style these parts of 
our law leges non scriptae, because their original constitution 
and authority are not set down in writings as acts of par- 
liament are, but they receive their binding power and the 
force of laws by long and immemorial usuage, and by their 
universal reception throughout the kingdom." After the 
statement by the commentator that King Edward the Con- 
fessor probably extracted one uniform law or digest of laws 
to be observed throughout the whole kingdom from the 
Dome Book of King Alfred and from the Mercen and West 
Saxon and Dane Lage, he proceeds (p. 65) : "But through 
this is the most likely foundation of this collection of max- 
ims and customs, yet the maxims and customs so collected 
are of higher antiquity than memory or history can reach, 
nothing being more difficult than to ascertain the precise 
beginning and the first spring of an ancient and long estab- 
lished custom. Whence it is that in our law the goodness 
of a custom depends upon its having been used time out of 
mind; or, in the solemnity of our legal phrase, 'time 
whereof the memory of man runneth not to the contrary.' 
This it is that gives it its weight and authority, and of this 
nature a.\e the maxims and customs which compose the 
common law, or lex non scripta, of this kingdom." 

As any discussion on the subject of tidal waters, without 
the aid of the treatise De Jicre Maris (attributed to Lord 
Hale), would seem to be incomplete, that work will be first 
referred to. Serious doubts having arisen in recent years, 
as to whether the author of this work was really Lord Hale 
or some other person, and of its being a true exposition of 
the common law, its maxims should be carefully weighed 
and compared with acknowledged authorities, before accept- 
ing its conclusions. 

See speech of Sergeant Mereweather in Atfy-Genl. v. 
Mayor of London. 
Jerwood's reply to Sergeant Mereweather. 



35 

Hall's Sea Shores, 2d Ed. App. 68. 
Gould on Waters, 108 and note 3, p. 109. 
Houch on Elvers, p. 17. 

Mr. Gould, in speaking of tlie treatise, says (p. 108) : 
"The authorship of the work would not, perhaps, be of 
importance, were it not for the fact that, being associated 
with Lord Hale, the positions here taken have been fre- 
quently accepted as a sufficient authority without inquiry 
whether the positions themselves had a sound basis. The 
work is posthumous, and there appears to be no evidence 
that it was revised or intended for publication, or at what 
period of the author's life it was written, while Lord Hale's 
name has not made it in all respects incontrovertible." 

Mr. Gould then states (note 3, p. 109) : " In the light of 
modern decisions, the following rules laid down in this 
treatise are not law. First : That the realm of England 
eltends beyond low water mark, and includes the adjacent 
seas, whether they are within the body of a county or not. 
Second : That any man may justify the removal of a com- 
mon nuisance, either at land or by water, because every 
man is concerned in it. Third : That alluvion is de jure 
communi by the law of England, the king's, viz.: if by any 
marks or measures it can be known what is gained. Fourth : 
It is now established that the right of towage along the 
banks of rivers does not exist in the absence of usage, 
grant, etc., notwithstanding the intimation in this book, 
that this is a common-law right. The view that has been 
expressed in this country, that this treatise is of so high 
authority that there is no appeal from it (6 Cowen, 536), 
would appear, therefore, to be somewhat exaggerated." 

Mr. Houck says (p. 18, Id.): "Deprived of Lord Hale's 
great name, the law as laid down in the treatise referred 
to, in relation to rivers, would hardly ever have been recog- 
nized in this country. It was the name of that great jurist 
that dazzled our judges and caused some of them to disre- 
gard the plainest principles of common reason." The trea- 



36 

tise should be construed as a whole and in connection with 
other authorities. When this is done it will not appear to 
conflict with them. 

Even Mr. Houck seems to concede this. He says (Navi- 
gable Rivers in England, p. 19) : 

" The doctrine here laid down seems to be in conflict 
with that of Bracton. Bracton says all rivers are public : 
The author of De Jure Maris says that fresh rivers, of what 
kind soever, belong to the owners of the soil. These two 
authorities on the ancient Common Law seem here to diff'er. 
Yet, when properly understood, they are entirely harmo- 
nious and consistent. The same diiSculty occurs here as 
among French authors on the same subject. In France, 
navigable rivers belong to the king ; rivers not navigable 
to the riparian owners. When this fact is borne in mind, 
all the French writers are reconciled with each other ; but 
without this knowledge they seem to be in conflict. 

" The truth is, that Bracton and the author of De Jure 
Maris are speaking of different subjects. Bracton is tol)e 
understood as speaking of navigable rivers, while in De 
Jure Maris rivers not navigable are considered. That 
Bracton is to be understood in this sense is plain from the 
context. He says that rivers and ports are public, and all 
persons are at equal liberty to land their vessels, unload 
them, and fasten their cables to the trees upon their banks, 
as to navigate the river itself. He is speaking of rivers 
that can be used for navigation ; these are by the common 
law, he says, public." 

The treatise De Jure Maris has given rise to such a con- 
trariety of legal opinions and decisions, both in England 
and the United States, that it may be seriously doubted 
whether it was an unmixed gain to the science of law. 
This diversity of legal thought and authority is more 
apparent in the United States than in England. The dif- 
ference is no doubt owing to the changed conditions and 
requirements of this country, and to the distance by which 
our legal luminaries are removed from the sources of 
knowledge and the traditions that are available to their 
brethren on the other side of the Atlantic. The paragraph, 



37 

in the fourth, chapter, relating to the flow and re-flow of the 
tide, the arms of the sea, and to public rivers, have prob- 
ably been more frequently cited and discussed by courts, 
commentators and lawyers, than any statements of like 
length between the covers of any law book in the English 
language, and they have caused a commensurate diversity 
of opinions. The treatise will now be considered in con- 
nection with the interpretation of the deed by the Dirctor 
Kieft to Dr. Johannes Montague and the deed by the 
Freeholders and Inhabitants of Harlem to John Montagne, 
the younger. 

Chapter IV. is entitled " Concerning the king's interest 
in salt water, the sea and its arms, and the soil thereof." 
It proceeds : — 

" This much concerning fresh waters or inland rivers, 
which, though they empty themselves immediately into the 
sea, are not called arms of the sea, either in respect of the 
distance or smallness of them." 

This description would include such streams as those 
under consideration for their whole length to the bank at 
the end of the marsh, where they emptied into the East 
Biver, which is an arm of the sea. Strictly speaking they 
were small rivers or rivulets for their whole length from 
the point where they issued from the ground until they 
mingled with the East Eiver. 

The next paragraph treats of the sea and the arms 
thereof. 

" The sea is either that which lies within the body of a 
county or without. The arm or branch of the sea which 
lies within the fauces terrce, where a man may reasonably 
discern between shore and shore, is or at least may be 
within the body of a county, and therefore within the juris- 
diction of the sheriff or coroner. The part of the sea 
which lies not within the body of the county is called the 
main sea or ocean. The narrow sea adjoining the coast of 
England is part of the waste and demesne and dominions of 
the King of England, whether it lie within the body of a 
county or not." 



38 

" For the second, that is called an arm of the sea where 
the sea flows and re-flows, and so far only as the sea flows 
and re-flows ; so that the river Thames above Kingston, and 
the river Severn above Tewkesbury, though they are public 
rivers, yet are not arms of the sea. But it seems that 
although the water be fresh at high water, yet the denomi- 
nation of an arm of the sea continues if it flow and re-flow 
as in the Thames above the bridge." 

If, under this test (wherever the tide flows and re-flows), 
it is claimed that the water is public, then every small creek 
in which a fishing skiff or gunning canoe can be made to 
float at high water, as Chief Justice Shaw expresses it in 
Rowe V. Granite Bridge Corp., (21 Pick. 344), is prima facie 
a navigable public stream. 

The mere statement of siich a proposition is enough to 
give an impression of its absurdity. 

A further examination of the treatise will show that such 
small streams are not claimed to be part of the public domain. 

In Chapter III, entitled " Concerning Public Streams" 
this statement is made: "There be some streams or rivers 
that are private, not only in propriety or ownership, but 
also in use, as little streanis and rivers that are not a com- 
mon passage for the king's people. Again there be other 
rivers, as well fresh as salt, that are of common or public 
use for carriage of boats and lighters. And these, whether 
they are fresh or salt, whether the tide flow and re-flow or 
not, are prima facie puilici juris common highways for man 
or goods, or both, from one inland town to another." 

It is evident that the mere presence of the tide-water 
does not raise the presumption that a stream or river is 
public. " Little streams that are not a common passage for 
the King's people " are declared to be private " not only in 
ownership lut in use." Only those rivers that are " of com- 
mon or public use " are declared to be prima facie puhlid 
juris. And this whether they are fresh or salt, or whether 
the tide flow and re-flow in them or not. Nor does the fact 
that the small streams are used for the occasional passage 
of vessels, of itself raise the presumption that they are 
public ; but they must be " o/ common or public use." 



39 

The following extracts from the De Jure Maris and De 
Jure Portibus illustrate this, namely: "But a subject hath 
not, or indeed can not have that proprietory in the sea, 
through a whole tract of it as the king hath ; because with- 
out a regular power (i. e., a naval force) he cannot possibly 
possess it. But though a subject can not acquire an inter- 
est of the narrow seas, yet he may by usage and prescrip- 
tion acquire an interest in so much of the sea as he may 
reasonably possess, viz.: of a district maris, a place in the 
sea between such points, or a particular part contiguous to 
the shore, or of a port or creek or arm of the sea. These 
may be possessed by a subject, and prescribed in point of 
interest both in the water, and the soil itself covered with 
the water, within such a precinct ; for these are manoriable 
(i. e., appertaining to a manor) and may be entirely pos- 
sessed by a subject. 

De Jure Maris, Chap. 6. (Gould, supra, p. 51). 

The kind of creek referred to is beyond reasonable doubt 
a creek of a port or a creek connected with a port. This 
will be made evident upon comparing the language with 
the De Portibus. Maris, relating to creeks and ports, 
namely : " A port is a haven and somewhat more. 1st. It 
is a place for arriving and unloading of ships or vessels. 
2d. It hath a superinduction of a civil signature upon it, 
somewhat of franchise, and privilege, as shall be shown. 
3d. It hath a ville or city or borough, that is the caput 
partus, for the receipt of mariners and merchants and secur- 
ing and vending of their goods and victualling their ships, 

A port of the sea includes more than the bare 

place where the ships unlade, and sometimes extends many 
miles ; as the port of London anciently extended to Green- 
which in the time of King Edward the first. ... A 
Creek is of two kinds, viz.: creeks of the sea and creeks of 
ports. The former sort are such inlets of the sea whether 
within or without the precinct or extent of a port, which 
are narrow little passages and have shore of either side of 
them. The latter, viz.: creeks of ports, are by a kind of 
civil denomination such. They are such, that though pos- 



40 

sibly, for their extent and situation tliey migM be ports, yet 
they are either members of, or dependent upon other ports. 
And it began thus : The king could not conveniently have 
a customer and comptroller in every port and haven ; these 
custom officers were fixed at some convenient port, and the 
smaller adjacent ports became by that means creeks or 
appendants of that where these custom officers were 
placed." 

De Portibus, C. 2, Hargrave's Law Tracts, 46, 48 ; Gould" 
Id. pp. 5, 10, 11. 

" Though of common right, the king is prima fade, the 
owner and lord of every pvhlic sea port, yet the subject 
may by charter or prescription be lord or owner of it. 
. . . . The ownership of propriety is where the king or 
common person by charter or prescription is the owner of 
the soil of a creek or haven where ships may safely arrive and 
come to the shore. This interest of proprietory may, as hath 
been shown, belong to a subject. But he hath not thereby 
the franchise of a port ; neither can he so use or employ it 
unless he hath had that liberty time out of mind or by the 
king's charter. Though A may have the proprietory of a 
creek or harbor or navigable river, yet the king may grant 
there the liberty of a port to B, and so the interest of pro- 
priety and the interest of franchise several and divided. 
And in this no injury is at all done to A, for he hath what 
he had before, viz.: the interest of the soil and consequently 
the improvement of the shore and the liberty of fishing, 
and as the creek was free for any to pass in it against all 
but the king ; for it was publici juris as to that matter 
before, so now the king takes off that restraint, and by his 
license and charter makes it free for all to come and 
unlade." 

Hale's De Portibus Mari^, C. 6. 
Hargrave's Law Tracts, 73. 
Gould's Watercourses, note, p. 11. 

The creeks mentioned in the first classification would 
apparently include all creeks that are not creeks of a port. 



41 

A creek of a port is one, which owing to its shape, size, and 
channel and connection with other places and waters may 
possibly possess the requisite features for a port. Although 
it has not been made a port, it is nevertheless connected 
with, and forms part of the system of an adjacent port, and 
in that way is connected with a city, ville or borough. By 
way of illustration, the kill between Staten Island and New 
Jersey possesses the requisite conditions for a port, yet that 
stream may be said to be a creek of the port of New York. 
But suppose there should be a tidal creek running through 
the extinct New Jersey marshes, to a point on New York 
Bay, or on the Hudson opposite to New York, no one would 
think of that stream as a creek of a port. 

The creek of a port being directly connected with com- 
merce and the custom officers, would he prima facie a pub- 
lic stream. It does not necessarily follow, that a creek 
which "possibly for its extent and situation " is capable of 
becoming a port or member of, or dependent upon another 
port, but which is not so in fact, is therefore prima facie 
public. These characteristics may not be sufficient to raise 
that presumption. If in addition it has a broad and deep 
channel, calculated for the purposes of commerce, or has 
been used by the public time out of mind, that would prob- 
ably raise the presumption that it was a public navigable 
channel. 

Bex V. Montague, 4 B. & C. 598. 

A creek in private ownership and possession, which has 
the requisite qualifications for a port, is subject to \he pub- 
lid juris, and the king may take off the restraint as to pub- 
lic use and establish a port upon it, and grant the franchise 
of a port to a stranger. The owner of the creek will still 
own the soil, the liberty of fishing, the improvement of the 
shore and his other rights; but subject to the public use 
under the port franchise. If a port was actually established 
on a creek of that kind although in private ownership, that 
fact would raise the presumption that the creek was sub- 
ject to the public use. If a grant of land were made by the 
Government bordering on a creek which is a public port. 



42 

it would be limited to the line of high water. If the grant 
were made by a private person, or civil or other corpora- 
tion, being the owner of the bed of the creek, it would 
include the stream, unless it was reserved in express terms, 
or by clear intention, but the stream would be subject to 
the public use. 

If there were no port established on such a creek, in the 
absence of proof that it was a public navigable channel, the 
creek would be prima facie private, and a grant of land 
bordering by its boundaries upon it would go by presump- 
tion of law to the thread of the stream. 

See cases cited and discussed, post. 

The term "creeks of the sea" would include the salt 
water creeks, ever present in salt marshes. 

This brings up for consideration and examination the 
status of lands of that kind. In Ch. 6 of De Jure Maris 
they are thus classified: 

" I. The shore of the sea." 

There seem to be three sorts of shores, or littora marina 
according to the various tides, viz : 

" 1st. The high spring tides, which are the fluxes of the 
sea at those tides that happen at the two equinoxials, and 
certainly do not dejure communi belong to the crown. For 
such spring tides many times overflow ancient meadows and 
salt marshes, which yet unquestionably lelong to the subject, 
and this is admitted of all hands. 

" 2d. The spring tides which happen twice every month, 
at full and change of the moon, and the shore in question 
is by some opinion not denominated by these tides, but the 
lands overflowed by these fluxes ordinarily belong to the 
subject prima facie, unless the king hath a prescription to 
the contrary. The reason seems to be because for the most 
part the lands covered by these fluxes are dry and manoria- 
ble, for at other tides the sea doth not cover them, and 
therefore touching these shores some hold that common 
right speaks for the subject, unless there be an usage to 
entitle the Crown ; for this is not properly littas maris." 



43 

Mr. Hall in his work on Seashores, says (p. 7): "In all 
the marshy districts and fens along the coasts of the sea, 
creeks and tide rivers, the lands which are subject to the 
spring tides are of considerable extent and value, and by no 
means so barren and unprofitable, as the ordinary sea- 
shore or strand. The marshes are indeed in many places 
manoriable, as Lord Hale expressed it, and the right to 
embank and enclose them against the spring tides, and reduce 
thetn to a completely cultivatable state, is of no small impor- 
tance to the Lords of the manor and the owners of the adja- 
cent terra firma." 

The salt marshes being invariably subdivided by tidal 
creeks of greater or less size and extent, this ownership of 
the marshes by the subject, with the right to enclose, embank, 
and cultivate them, includes the right to close up the creeks 
to keep out the sea water. This shows very clearly that 
the title to these creeks and to the soil under them is in the 
owners of the marshes, without any restraint. Of course if 
in any of the larger creeks a public right has intervened by 
reason of an immemorial custom, or public use, owing to 
which they have become subject to a public servitude, such 
creeks probably could not be closed. The fact of the pri- 
vate ownership, and absolute control over these creeks of 
the marshes by the subject, is a very important one. It has 
a direct bearing upon the question, as to the force and 
effect to be given to the fact, that the tide ebbs and flows 
in any particular stream. If the fact that it flows in the 
creeks of the marshes, does not raise the presumption that 
they &xe publici juris, because of the well-known fact, that 
time out of mind, these marshes and creeks have been in 
the private ownership of the subject, then that test is not 
one of universal application. The ebb and flow of the tide 
is not the vital test under the common law, to determine 
whether a river is a public navigable stream or not. 

This is one of the reasons tending to show that imme- 
morial use by the public, is the really reliable test to show 
that a river is public and navigable. The test is 9f course 
subject to the well known rule of law, that where a matter 
is of such a general and public notoriety as to be generally 



44 

and publicly known, the court will take judicial notice of the 
fact, as that the Thames is navigable up to London Bridge. 

Gould, supra, p. 201. 

Blackstone makes only this brief statement in regard to 
the king's right in ports and the shore and navigable rivers, 
viz.: "Sir Edward Coke lays it down that no subject can 
build a castle, or house of strength embattled, or other 
fortress defensible, without the license of the king ; for the 
danger which might ensue if every man at his pleasure 
might do it. It is partly upon the same and partly 
upon a fiscal foundation, to secure his maritime revenue, 
that the king has the prerogative of appointing ports and 
havens, or such places only, for persons and merchandise 
to pass into and out of the realm, as he in his wisdom sees 
proper. By the feudal law all navigable rivers and havens 
were computed among the regalia, and were subject to the 
sovereign of the state. And in England it hath always 
been holden, that the king is lord of the whole shore, and 
particularly is he the guardian of the ports and havens, 
which are inlets and gates of the realm ; and, therefore, so 
early as the reign of King John, we find ships seized by the 
king's officers for putting in at a place that was not a legal 
port. These legal ports were undoubtedly at first assigned 
by the crown ; since to each of them a court of portmote is 
incident, the jurisdiction of which must flow from the royal 
authority ; the great ports of the sea, are also referred to, 
as well known and established by statute 4, Hen. IV., c. 20, 
which prohibits the landing elsewhere, under the pain of 
confiscation, and the statute 1, Eliz., c. 11, recites that the 
franchise of landing and discharging had been frequently 
granted by the crown." 

Blackstone, Com. B. i, 263. 

Judged by the context, the learned commentator, by the 
term navigable rivers, refers to rivers that are directly con- 
nected with commerce as understood by the law of nations. 
The rivers are directly associated with havens and legal 
ports which he terms inlets and gates of the realm ; and 



45 

they again are associated with the collection of the revenue 
or customs ; and the king's lordship of the whole shore is 
spoken of in the same connections, and this again would 
seem to imply or include those shores onlj' which are con- 
nected with actual navigation. 

It is a significant fact, that no reference whatever is made 
to the flow and re-flow of the tide. If at the time Black- 
stone wrote, the ebb and flow of the tide was the important 
sign by which to determine whether a river was a public 
navigable river or not, it certainly is a most remarkable cir- 
cumstance, that in such a work, no reference should have 
been made to a criterion of such far-reaching importance. 

These extracts from English authorities will serve to show 
that private property in the beds of important tidal waters 
has existed to a large extent, and from very remote periods 
of time. In a country like England, with a system of laws so 
wise, it is not at all probable that side by side with the 
existence of such property rights would also have existed a 
law which said: "Wherever the tide ebs and flows, 
prima facie, no such property rights exist, because the title 
in all tidal waters is in the king." This would put upon 
the owners of these small creeks, the burden of proving 
title, and put such property under a perpetual ban. This 
interpretation of these sections of the treatise, is in harmony 
with the more recent English authorities. 

Lord Hale died in 1676. Assuming De Jure Maris to be 
his work, it slumbered in the archives of the British 
Museum until it was brought to light by Mr. Hargrave in 
1787. 

In the interim between the death of Lord Hale and the 
publication of the treatise, the exposition of the law in Eng- 
land did not stand still. Great jurists and eminent 
exponents of the law lived and died. Among these learned 
men was Lord Mansfield. 

It may be safely assumed that no intelligent lawyer is pre- 
pared to maintain that he did not know what the law was 
without the aid of this treatise. In 1774, Lord Mans- 
fied made a decision in the celebrated case of the Mayor of 
Lynn v. Turner (1 Cowper, p. 86), in which he says : " Ex 



46 

facto oritur jus. How does it appear that this is a navigable 
river ? The flowing and re-flowing of the tide does not make 
it so, for there are many places into which the tide flows 
that are not navigable rivers ; and the place in question may 
be a creek in their own private estate." 

Mr. "Woolwych in referring to this case says, that the 
claim made by the corporation of Lynn, that the creek in 
question was public because the tide ebbed and flowed in 
it, was treated by the court as a fallacy. 

Woolwych on Waters, p. 312, supra. 

■ In Jiex V. Montague (4Barnwall& Creswall's E.). Bailey, 
J., says, p. 601 : "It was for the defendant to make out 
that there once was a public navigation. Now it does not 
necessarily follow, because the tide flows and re-flows in any 
particular place, that there is therefore a public navigation, 
although of suflicient size." .... •' The strength of this 
priTna facie evidence, arising from the flux and re-flux of 
the tide must depend upon the situation and nature of the 
channel. If it is a broad and deep channel, calculated for 
the purposes of commerce, it would be natural to conclude 
that it has been a public navigation ; but if it is a petty 
stream, navigable only at certain periods of the tide, and 
then only for a short time, and by very small boats, it is 
difficult to suppose that it ever has been ?k public navigable 
channel!' The opinions of Holroyd, J., and Littledale, J., 
were to the same effect. 

From these authorities it appears that the mere ebb and 
flow of the tide in a small stream is not sufficient to raise 
the presumption that it is public, but there must also be a 
public navigation, or at least a capacity for navigation, for 
commerce. Although a private navigation may exist in 
such a stream,, yet the terms public navigation and public 
navigable channel are the equivalents of the expression in 
the treatise "of rivers that are of a common or public 
use." What is meant by a public navigation is, an open 
and notorious use by the public, for a sufficient time to estab- 
lish a public right. 



47 

In Vooght v. Winch (2 Barnwall & Alderson's E., p. 662), 
on the trial it was held that " In a public navigable river, 
twenty years possession of the water at a given level, etc., 
is not conclusive as to the right, even although it had been 
a public navigable river." 

Abbott, Chief Justice, says: "The learned judge left it 
to the jury, on the evidence to consider whether the stream 
called Channel Sea Siver was navigable, and in what way. 
whether as a puhlic navigable river, or for the convenience of 
the q.djoining occupiers ; and he further added, that whether 
navigable or not, he thought each party was bound to use 
the water in the state in which it was found to be for the 
space of twenty years invariably, and that a certain benefit 
so long enjoyed could not afterwards be disturbed. In that 
decision it appears to me the learned judge was mistaken, 
for if it be admitted that this is a public navigable river, 
and that all his majesty's subjects had a right to navigate 
it, an obstruction to such navigation for a period of twenty 
years would not have the effect of preventing his majesty's 
subjects from using it as such." Bailey, J., said : " I am of 
the same opinion. I think we are not warranted in saying 
that there was not enough at least to go to the jury to say 
whether this was not a navigable river ; and if it was a 
navigable river, then an obstruction for twenty years is not 
enough to bar a public right." Holyrood, J., said: "If 
the place in question was ever a public navigable river, I 
apprehend that in ceasing to use it as such for twenty 
years, and being during that time in a condition which is 
inconsistent with its being used as a public navigable river 
would not extinguish the public rights, if they ever existed 
previously to that time." Holyrood, J., concurred in the 
subsequent decision in Bex v. Montague, supra., in which it 
was held that the public right in a channel might be termi- 
nated in other ways than by an act of Parliament. 

The mere presence of a sloop or lighter or of small ves- 
sels in a small stream in which the tide flows, does not raise 
the presumption that it is a public navigable stream. In 
the Mayor, c&c, of Colchester v. Brooke (7 Queen's Bench 372, 
decided in 1845), Lord Denman, C. J., says: "It is more 



48 

reasonable to hold that the term navigable is a relative and 
comprehensive term, containing within it all such rights 
upon the waterway as, with relation to the circumstances 
of each river, are necessary for the full and convenient pas- 
sage of boats and vessels along the channel." Lord Den- 
man also said, in Williams v. Wilcox (8 Ad. and El. 314, 
333, 1838) : "It is clear that the channels of public navi- 
gable rivers were always highways ; up to the point reached 
by the flow of the tide the soil was presumably in the , 
Crown ; and above that point, whether the soil at common 
law was in the Crown, or the owners of the adjacent lands 
(a point perhaps not free from doubt), there was at least a 
jurisdiction in the Crown, according to Sir Matthew Hale, 
to reform and punish nuisances, in all rivers, whether fresh 
or salt that are a common passage, not only for ships and 
greater vessls, but also for smaller." 

Gould, supra., p. 112. 

In Hex V. The Inhabitants of Landulph, (1 Moody and Rob- 
inson's R. p. 393, 1834), was an indictment for non-repair 
of a road. The road in question led over a small inlet or 
estuary of Tamer River, not far from its mouth. It was 
not passable at high water, and was usually a soft sludge 
at ebb. The defense was that the road was not a public 
highway at all, and if any, was one in its nature not cap- 
able of repair. It was also contended that this road was not 
in the parish of Landulph. Patterson, J., held in refer- 
ence to the question of boundary, "that where two parishes 
are separated by a river, and there is no positive evidence 
of the boimdary line between them, it is to be presumed 
that they coincide with the middle of the channel." It 
should be here noted, that this case was subsequently criti- 
cised in an unfriendly spirit, in the case of Bridgewater v. 
Town of Bootle, which will be discussed presently. 
• In McOannon and others v. Sinclair and others (Ellis & 
Ellis R. p. 54, 1853), it was held, that where a parish comes 
down as far as the bank of a river, there is prima facie 
presumption that the parish extends as far as the middle 
of the river. A pier leading from the river bank in such a 



49 

parish, into the river beyond the low water mark, and con- 
sisting of a fixed platform supported on piles, commencing 
within two or three inches from the bank, and a floating 
barge moored close to, but not attached to the platform, is 
to be held, in the absence of evidence to rebut the pre- 
sumption, as being within the parish ; and such a pier is 
ratable at the poor rate. 

Lord Campbell, Ch. J., delivered the opinion. He said : 
"The point has very properly been argued; but we are 
clearly of opinion that the plaintiffs are entitled to judg- 
ment." 

Mr. Gould, in discussing the case of the Boyal Fishery 
of the Banne, decided in Ireland in 1611, says (p. 107, Id.) : 
" The real question presented for decision was, whether a 
royal grant of certain lands adjacent to the river Banne 
conveyed a salmon fishery at a point in the river where it 
was navigable. If the word navigable as here used means 
tidal, the question of title to a fresh-water river was not in 
issue ; and the first part of the last resolution, in which 
the king is held to be the owner of tidal rivers, and the 
resolution that nothing passed by implication in a royal 
grant, embrace the only points that were directly decided." 
And note 1, same page : " The word navigable in this case 
is, perhaps, of somewhat doubtful meaning, it being said 
that every navigable river, so high as the sea ebbs and flows 
in it," is a royal river; that every other river not navigable, 
and every " inland river not navigable, are private." The 
rivers here referred to in the second classification, beyond 
reasonable doubt, mean tidal rivers. 

Gould, supra., p. 107. 

The House of Lords, in Bristow v. Oormican (3 App.. 
Gas. 641), controverts the doctrine of the Crown's title as 
universal occupant of vacant land. Lord Blackburn said : 
" It is, however, necessary to decide whether the Crown 
has of common right a, prima facie Wile to the soil of a lake. 
I think it has not. I know of no authority for saying it 
has, and I see no reason why it should have it. Mr. Jus- 
tice Lawson in his able opinion hints at one. "What 



50 

ground," lie says, "is there for suggesting that the title was 
not in the Crown ? It is not shown, or even suggested, to 
be in any other, and it could not be in the public." This 
would be a strong remark if there was any authority for 
saying that, by the prerogative, the Crown was entitled to 
all lands to which no one else can show a title. But this 
is so far from being the case, that in the only instance in 
which no one could show a title — I mean that of an estate 
granted to one for the life of another, where the grantee 
died lea-vdng the cestui que vie — the law cast the freehold 
on the first occupant of the land. (See Co. Litt. 40.) It 
was never thought that the Crown was entitled in such a 
case. Those who committed trespasses after the death of 
a tenant for life, and before any one occupied, did so with 
impunity, because there was no one entitled to complain 
of their acts, and it may be that those who fish in Lough 
Neagh may do so not of right, yet with impunity, so long 
as the true owner of the soil either fails to prove his right, 
or does not choose to interfere. But that does not give 
any rights to the Crown. The Crown might have had title 
in many ways, by forfeiture or escheat, or otherwise, but 
generally speaking, in order to make such a title in the 
Crown perfect, there must be office found." 
See Gould Id. p. 39. 
In England none of the rivers in their natural conditions 
were navigable in the full sense of that term, above the ebb 
and flow of the tide. Had there been large fresh water 
rivers in that country capable of navigation, as on the con- 
tinent of Europe and in America, the common law, without 
doubt, would have been adapted to the actual condition of 
the country. The rivers would have become " of common 
or public use for carriage of boats and lighters " to the 
whole extent of their navigability. The De Jure Ma-ris 
treats of ancient customs and facts actually existing and 
which had existed for ages and had been before the courts 
for adjudication. If England had possessed large fresh- 
water rivers of this character, the statement could still have 
been " again there are other rivers, as weU fresh as salt, 
that are of common or public use for carriage of boats and 



51 

lighters. And these, -whether they are fresh or salt, whether 
the tide flow or re-flow or not zxq prima facie puhlici juris, 
common highway for man, or for goods, or both." The ebb 
and flow of the tide, however, would not have been used as 
the test to show to what extent the rivers were navigable. 

The title of the king to the arms of the sea, and the bed 
of the navigable rivers, so far as the tide flows and re-flows, 
was not founded upon decrees or statutes, but upon the lex 
non scripta. His title did not extend to all the waters 
within the reach of the tide, but to those only which had 
become " of public use." 

Whether the king's title does or does not extend to all 
tidal waters, is a question of law. If it is claimed that his 
title arises out of his prerogatives, or the feudal law, or 
upon general reception and usage, the authorities for such 
opinions must be produced, in order to raise the presump- 
tion that the water in controversy is public. In other 
words, it is strictly a common law question. It is one of 
those " doctrines that are not set down in any written stat- 
ute or ordinance, but depend merely upon immemorial 
usage, that is, upon common law, for their support." 

Blackstone, Com., Vol. 1, p. 68. 

Blackstone tells us, 63 Id., how the law is 'ascertained: 
" But, with us at present the monuments and evidences of 
our legal customs are contained in the records of the several 
Courts of Justice, in books of reports and judicial decis- 
ions, and in the treatises of learned sages of the profes- 
sion, preserved and handed down to us from the highest 
antiquity. However, I therefore style these parts of our 
law leffes non scriptae, because their original institution and 
authority are not set down in writing, as the acts of parlia- 
ment are, but they receive their binding power and force of 
laws by long immemorial usage, and their universal recep- 
tion throughout the kingdom." 

This test of a navigable river, arising from its use for 
navigation, has been in existence time out of mind. "A 
public navigable river," says Woolrych, " frequently owes 
its title to be considered as such from tiine immemorial, by 



52 

reason of its having been an ancient stream, but very many 
acts of Parliament have been passed to constitute those 
navigable rivers which were not so before." 

He says : " Eivers are either public, as where there is a 
common right of navigation exercised, and then the soil is 
in the king, or in the lord of the manor ; or private, where 
the soil is the property of an individual who owns the land 
on both sides, or of each proprietor, ad medium filum, aquae, 
where the same person is not the owner of the shore on 
either bank." 

And he shows that few of the English rivers except the 
Thames and Severn were naturally navigable, but were 
made so by acts of Parliament. " Waters," he goes on to 
say, "flowing inland where the public have been used to 
exercise a free right of passage from time whereof the mem- 
ory of man is not to the contrary, or by virtue of legislative 
enactment, are public navigable rivers." This he further 
says, " is the most unfailing test to apply, in order io ascer- 
tain a common right ; others have been attempted and fre- 
quently without success." 

Woolrych on Waters, pp. 31 to 33. 
Houck on Eivers, p. 11, supra. 

The common law may be said to be the outgrowth of facts. 
Lord Mansfield said, in the case of Mayor of Lynn\. Turner, 
(1 Cowper, 86 supra) : " The law arises from the fact." And 
to say that every stream and river, in which the tide ebbs 
and flows is a public navigable river in the law, when very 
many such rivers are not njivigdble in fact, is equivalent to 
saying the law arises out of a theory. 

The common law doctrine of the rights of littoral and 
riparian proprietors may be stated in the following terms: 
In all arins of the sea and all public navigable rivers, which 
are " a common passage not only for ships and great ves- 
sels but also for smaller," in which the tide ebbs and flows, 
the titles of the owners of the upland extends prima fade 
to the line of ordinary high tide, and in all other rivers and 
streams which are not so navigable, or a common passage 
for the king's people, whether the same are fresh or salt, or 



53 

whether the tide flows in them or not, the title of such pro- 
prietors, extends prima fade, to the filum aquae, or thread 
of the stream. 

Or the law as to 'vrh.&i prima facie constitutes a navigable 
river or stream, may be stated in this way. No stream or 
river is a public navigable river in which the tide does not 
ebb and flow. But not that all streams and rivers in which 
the tide ebbs and flows are necessarily public navigable 
rivers. A public navigable river is one in which the tide 
ebbs and flows, which has a broad and deep channel, and 
is a common passage for the king's people, and is of com- 
mon use for carriage of bo.ats and lighters, and is a common 
highway for man or for goods, or for both. 

Mr. Tyler in his work on the Law of Boundaries (p. 47), 
states the law as above defined in this manner : " It may be 
added, that rivers where the tide ebbs and flows, probably 
do not belong to the public, only in those parts which are 
navigable. So that the owners of lands adjoining a river 
below the ebb and flow of the tide, if navigable, are bound 
prim,a facie by the line of the high water mark ; but if not 
in fact navigablis, these may be presumed to own to the cen- 
ter of the stream." It clearly appears from these authori- 
ties, that by the rules of construction of grants of land bor- 
dering upon private streams, made by the sovereign to a 
subject, the title extends to the thread of the stream, unless 
the grant in express terms, or by implication, limits the 
title of the grantee to the high water line, or bank. 

If a small stream like those now under consideration has 
from use or dedication become open to the public, the 
Court will not take judicial notice of the fact. " If the 
character of the stream is not defined in any pubhc statute, 
or in a private statute introduced in evidence, and it is not 
of such a notoriety as to be generally understood, it can 
not be known judicially that it is navigable." 

Gould Id., p. 201. 

Feople V. Allen, 42 N. Y. pp. 378-81. 
27ie New York and Brooklyn Saw Mill and Lumher 
Co. V. The City of Brooklyn, 71 N. Y. 580. 



54 

CHAPTEE VIII. 
Tidal Creeks. 

PART SECONB. 

According to American law to render a stream public, there must be an 

actual or potential use of water for some useful purpose connected 

with trade or agriculture. 
The Constitution of the State of New York, 1777. 
The American authorities as to tidal waters conflicting and discordant. 
English and American authorities examined and compared. 
By the common law there are three kinds of rivers. 
The interpretation of grants bordering' on small tidal streams. 
No Court of final resort has actually decided, that as a matter of law, 

all streams in which the tide ebbs and flows are prima facie public 

and navigable. 
The rivulets of Manhattan Island. 
The Harlem salt water creeks not public streams. 

It now remains to consider the question as presented by 
the rules of law in the United States, and particularly in 
the State of New York. 

In this country the law seems to be, that actual or poten- 
tial use of water, for purposes of navigation for some useful 
purpose, is the test of navigability. The ebb and flow of 
the tide is (as respects ownership of soil) immaterial except 
to raise the presumption of navigability, when it is shown 
by the dimensions and accessibility of the water to be prac- 
ticable. Tide water flowing through a narrow crevice 
among rocks into a large or deep pool, would not be navi- 
gable ; neither is tide water flowing into a shallow swamp. 
To hold otherwise would be a contradiction in terms as in 
fact. 

The law, as by the constitution of the State of New York, 
of 1777 established, has not been changed by any subse- 
quent constitution or statutes, so far as it relates to tidal 
waters. Opinions of Senator Verplanck, in The Canal Com- 
missioners V. Kempshal, (26 "Wend., 404,) and of Judge Gray, 
in Roberts v. Baumgarten, (110 N. Y., p. 380.) The constitution 



55 

was adopted ten years before the treatise De Jure Maris 
was published. The decision of Lord Mansfield in the 
Mayor of Lynn t. Turner, supra, was delivered in 1774. It 
was the most recent statement of the law affecting small 
tidal streams and was of authority in the colony when the 
constitution was adopted. It has been followed in subse- 
quent leading cases in England, as above cited. These 
decisions are the authoritative interpreters of the common 
law, and are in harmony with the De Jure Maris. 

The deed by the Kieft, Director-General, &c., to John 
Montague, the elder, must be construed according to the 
common law, as it was when the deed was given, or at least 
in 1775, according to the Constitution of 1777. 

In Canal Commissioners v. The People, (5 Wendell,) Sena- 
tor Allen, in delivering his opinion says (p. 452): "Now 
although the common law as it existed in 1774 {i. e., 1775), 
may be altered or repealed by the legislature to take effect 
from and after such alteration or repeal, ii cannot he so 
altered as to affect grants existing prior to 1774 (i. e., 1775). 
Ancient grants Tnust he expounded according to what the law 
was at the time of making them. Comy's Digest, 419." 

The important case of Rogers v. Jones, (1st "Wendell, 238, 
decided in 1828), has a direct bearing on the subject of the 
interpretation of grants by the government. 

On the 29th of September, 1677, a patent was granted by 
Sir Edmond Andros, then Governor of New York, under 
the Duke of York to Henry Townsend, senior, and six other 
persons as patentees, for and on behalf of themselves and 
their associates, the freeholders and inhabitants of Oyster 
Bay. The lands were bounded as follows : Bounded on 
the North by the Sound, on the East by the Huntington 
limits, on the South partly by the sea and partly by Hemp- 
stead limits, and on the West by the bounds of Hempstead 
aforesaid, including all the necks of land within the afore- 
said bounds and limits, together with all the woodland, 
plains, meadows, pastures, quarries, marshes, waters, lakes, 
rivers, fishing, hawking, hunting and fowling, and all other 
profits and emoluments to the tract belonging, and all priv- , 
ileges and immunities belonging to a town. 



56 

"Woodworth, J., delivered the opinion, and Savage, C. J., 
and Southerland, Asst. J., concurring, lie said : "It can 
not be doubted that when a patent or grant conveys a 
tract of land by metes and bounds, the land under water as 
weU as other land will pass, if the land under water lies 
within the boundaries of the grant. A. contrary doctrine 
would exclude the lands under the water of lakes and 
streams not navigable. Scarcely a patent ever issued by 
this state, that does not include one or the other ; and as 
far as I know, no question has ever been raised on this 
ground. . . . . I deem it unnecessary to cite other 
authorities. Many might be adduced, but enough has 
been shown to satisfy my mind, that the patent of Sir 
Edmond Andros, emanating immediately from Charles the 
Second, did convey to the inhabitants of Oyster Bay, all 
the lands under water within the bounds of that grant." 

In case of Commonwealth v. Charlestown, (1 Pick., Mass., 
Eep. 179), shows that a tidal creek is jxoi pri7na facie a pub- 
lic navigable water. The defendants proved that the chan- 
nel over which a bridge was built, was seventy-four feet 
wide at the bridge, and nine and a half feet deep at high 
water ; that the bridge was one hundred and ninety-six feet 
long ; and that for more than fifty years vessels of from 
fifteen to thirty tons and upwards used to go above the 
bridge carrying West India goods to a range way on which 
they were carted across the meadows. There was a con- 
stant stream of fresh water entering the bed of the river, on 
■which there is a mill above tide water. At a smaller bridge 
there was seven and a half feet of water in spring tides, 
and a channel more than a pole wide, vessels of fourteen or 
fifteen tons passing, while there was water enough for 
those of forty or fifty tons. 

This case turned upon the proof that the stream had been 
used by the public for commercial purposes for more than 
fifty years. The ebb and flow of the tide did not determine 
the controversy. 

Parker, Ch. J., delivered the opinion. He said : " The 
question then in the case before us, is whether the streams 
over which the bridges are placed are public highways ; 



57 

if they are, the order of the Court of Sessions laying a road 
over them is void. If it appears from the evidence that the 
.streams in question are navigable to any useful purpose, as 
"that in our opinion would make them public property, the 
verdict ought to be set aside." 

What the learned Chief Justice said in regard to common 
law, was not really in the case, and while it is entitled to 
respectful consideration, it is not binding, as matter of 
authority. If the common law is as the Chief Justice stated 
it, there was no necessity for the defendant to prove public 
navigation. 

All the proof that was required was that the tide ebbed 

and flowed in the creek, and in the absence of proof of title, 

by grant or by prescription on the part of the plaintiff, the 

decision would necessarily have been that the title was 

j>rinia facie in the state. 

Four years after this, that is 1826, the celebrated case of 
Ex parte Jennings (6 Cowen, p. 528), was decided in New 
York. The language of the court in regard to the common 
law rule relating to the flow and re-flow of the tide is so 
.similar to that of Chief Justice Parker, as to raise the 
impression that it was derived from his decision. It may 
be that both of these opinions were drawn from a common 
source, but neither of them appear to be in accordance with 
the English authorities. 

The language of these, as well as that of some of the 
•other decisions in the United States, which include all 
tidal waters as public, seems to show a want of harmony 
with the English jurisprudence on the subject. 

The opinion that the king's title extends to all tidal 
waters, even the smallest creek as well the largest river, 
appears to be based entirely upon the above mentioned pas- 
•sage in the treatise De Jure Maris. There seems to be no 
.authority for such a doctrine anterior to the publication of 
that work. It is believed that every opinion holding that 
to be the law, whether expressed by court or counsel, if it 
•could be traced to its source, will be found to take its rise 
in the paragraph relating to the flow and re-flow of the tide 
in that treatise. Now it is probable that the author of that 



58 

work did not mean to be so understood. But if lie did, it 
is very strange that we do not find prior to its appearance, 
this doctrine stated in any such marked and pronounced 
language as is shown in many of the American decisions, 
since the De Jure Maris appeared. 

Assuming that this hypothesis is correct, there are but 
two tenable theories on which to account for it, namely : 
First, The treatise does not teach that to be the law ; or. 
Second ; if it were the law when the treatise was written, it 
was not afterwards regarded or followed. 

Eeferring to this variance from the English law, Mr. 
Houck says (p. '\X,sux>ra): 

" It is commonly received opinion in this country, that in 
England the only test of navigability of a river is the ebb 
and flow of the tide. This general idea here, on this point 
is, however, erroneous. It is true that there the usual means 
of designating a navigable river is the ebb and flow of the 
tide ; and it is this common method of designation which 
has led to the idea here, that the ebb and flow of the tide ia 
the only test of navigability at common law ; but this opinion 
is, as already remarked, an error, because there, while it is 
the commonly used and most prominent, it is not the only 
test being the most natural and the most readily perceived 
test in that country, it was easy to take for granted with- 
out question or reflection, that it was the only test. It is, 
however, not reasonable to suppose that such would be the 
case, in a system of laws so eminently flexible as that of 
England, ahd so easily adapting itself to the necessity of 
circumstances controlling the application of a principle, 
when navigability did not depend on the ebb and flow of 
the tide, and the natural test stated was hy daily observation 
of actual navigation, shown to be erroneous. Our general 
adoption of this idea here, does not make the test itself" 
correct ; nor does its general use there make it such, even 
there. WJierever thepvhlic, whether in England or America, 
have actually used a river as navigable, it is such, whether 
the tide ebbs or flows, or does not ebb or flow, at the navi- 
gable places in its course so used." He futher says (p. 15, 
Id.): "In some American Courts, the common law seems- 



59 

to have been misunderstood, and the ebb and flow of the 
tide is considered the only test of navigability, and misled 
by this idea some singular decisions have been made." 

It is probable that Mr. Houck was quite right in this 
opinion ; and that it was owing to certain passages in the 
treatise De Jure Maris that many eminent judges in this 
country were led to believe that the term navigable rivers, 
meant all waters in which the tide ebbs and flows and 
excluded all other waters. The unreasonbleness of this, 
proposition as well as its unsuitableness to the conditions 
existing in this country, led some of the judges to modify 
or wholly repudiate the supposed common law, as inappli- 
cable to this country. This is shown in the following opin- 
ions. Judge Bronson said in Child v. Starr, (20 Wendell, 
149): "Navigable rivers belong to the public ; other streams 

may be owned by individuals In England, a rule 

of evidence has been adopted, which although it recognizes 
the doctrine, does not always give it complete practical 
effect. By the common law, the flow and re-flow of the 
tide is the criterion for determining what rivers are public. 

" This rule is open to the double objection, that it includes 
some streams which are not in fact navigable, and which 
consequently might well be subject to individual ownership; 
and it excludes other streams, which are in fact navigable, 
and which in every well regulated State should belong to 
the public. 

"Although the ebb and flow of the tide furnishes an 
imperfect standard for determining what riv^s are navi- 
gable, it nevertheless approximates the truth, and may 
answer very well in the Island of Great Britain, for which 
the rule was made. But such a standard is quite wide of 
the mark when applied to the great fresh water rivers of 
this continent, and would never have been thought of 
here if we had not found the rule ready made to our 
hands." 

Senator Beardsley said, in the case of Ex parte Tibbetts, 
(5th "Wendell, 423): "That the rule of the common law 
extending grants on the shores of rivers above the flow 
and re-flow of the tide, usqybefilum aquae, does not apply tO' 



60 

our large fresh water rivers ; at all events, a patent 
bounded on a river navigable above tide-water passes no 
interest to the patentee in the bed of the river as against 
the State." He further remarks : "Eules of law should be 
adapted not only to the naoral, but to the physical condi- 
tion of the country. Had the common law originated on 
this continent, we should never have heard of the doctrine 
that fresh water rivers are not navigable above the flow of 
the tide ; nor would our courts have been called upon to 
compromise the interests of the community by sacrificing 
truth to technicality, and substance to form." 

This last sentence of the learned Senator, although it 
had reference to navigable fresh water rivers, is applicable 
to those decisions which hold out the idea that all the non- 
navigable salt wat6r creeks and streams are navigable in 
the law. 

Thurley, J., said in Elder v. Hurras, (6 Humph. Tenn. 
■366): "All laws are or ought to be, an adapation of the 
principle of action to the state and condition of a country 
and its moral and social position. There are many rules 
•of action recognized in England as suitable, which it would 
be folly in the extreme, in countries differently located, to 
recognize as law; and in our opinion, this distinction 
between rivers navigable and not navigable, causing navi- 
gability to depend upon the ebbing and flowing of the tide, 
is one of them. The insular position of Great Britain, the 
short course of her rivers, and the well-known fact, that 
there are nqne of them navigable above tide waters, but for 
very small craft, well warrants the distinction there drawn 
by the common law." 

In McManus v. Carmichael (2 Clarkes Cases in Law and 
Equity, Supreme Court, Iowa), Woodward, J., said: "First, 
Although the ebb and flow of the tide was, at common 
law, the most usual test of navigability, yet it was not 
necessarily the only one. Second, However the truth 
may be upon the above proposition, that the test is not 
applicable to the Mississippi Eiver. Third, The common 
consequences of navigability attach to the legal navigabil- 
ity of the Mississippi." . . . . " However the truth 



61 

may be upon the first proposition, the flow and re-flow of 
the tide is not applicable to the Mississippi, as a test of its 
navigability ; and the common law consequences of navi- 
gability attach to the legal navigability of the Mississippi 
Eiiver. The arguments and authorities on these two propo- 
sitions being in a great measure identical, they must be 
considered together. 

" The thought has been before suggested, that, as a real 
and virtual test, the tide is a merely arbitrary one, and is 
not supported by reason, since many waters where the tide 
flows are not in fact navigable, and many where it does not. 
flow are so. It is navigability in fact which forms the 
foundation of navigability in law, and from the fact follows 
the appropriation to public use, and hence its publicity and 
legal navigability. It is true this legality attaches to some 
waters which do not possess the requisite quality in fact ; 
but this arises from their relation to the high seas and 
admiralty, and from the difficulty of making a hundred 
exceptions. It is impossible to bring the mind to an 
approval when we attempt to apply it to the rivers of this 
country, stretching three thousand miles in extent, flowing 
through or between independent States and bearing a com- 
merce which competes with that of the oceans, of a test 
which might be applicable to an island not so large as 
some two of our states, and to streams whose utmost length 
was less than three hundred miles, and whose outlet and 
fountain at the same time, could be within the same State 
jurisdiction." 

Other cases could be referred to of similar purport. But 
these will suffice to show how wide-spread is the opinion in 
the United States, that by the common law, the property of 
the sovereign extends to all places where the tide ebbs and 
flows. 

It is not only remarkable that such an opinion should he- 
so generally held, but that in one respect, the decisions all 
bear a family likeness. That likeness consists in that 
opinion being volunteered in every case so far as examined, 
without its having any essential connection with the ques- 
tion before the court. In each of these four cases, the title^ 



62 

-to the soil under fresh water rivers, whioli were navigable 
in fact, was in dispute. The preliminary question was, 
whether the common law was applicable to such waters, in 
the respective States, in which the actions were pending. 
It is generally conceded that by the common law, the king's 
title does not extend to any waters in which the tide does 
not ebb and flow. This is a good common law reason, 
because it is founded upon the fact that in England none 
of the rivers in their natural conditions, were actually 
navigable above the flow of the tide. Those parts of the 
. rivers being incapable of any public use, no public right 
intervened, and consequently no right on behalf of the king 
attached to them. This goes to show that the king's title 
extends only to these waters which are actually navigable 
in the commercial sense, irrespective of the flow and re-flow 
of the tide. The question, therefore, for the court to deter- 
mine in each of these cases was, not as to whether the title 
of the king did or did not extend to all waters where the 
tide ebbed and flowed, but whether the tide ebbed and 
flowed in the river in question, and that fact being ascer- 
tained, then to determine whether the river was legally 
navigable or not. As the tide did not flow in any of those 
rivers, the presumption would be that, according to the 
common law rule, they were not navigable. But those riv- 
ers being different in character from any in England, owing 
to their actual navigability, although free from the ebb and 
flow of the tide, that raised the very natural and pertinent 
question, as to whether the common law applied to such 
rivers or not. The common sense answer is, that it did not. 
The books show comparatively few cases in which the 
question of the rights of property in the soil and waters of 
small salt water streams and creeks were involved. In only 
one case, as far as known, has the question as to the joHma 
facie title to such a stream been openly and fairly presented 
and decided. That was the case of Bowe et al. v. The Gran- 
ite Corporation, (21 Pick., Mass. E. 344), which will be more 
fully considered subsequently. In this case it was decided 
that such a stream was not prima facie presumptively a 
public navigable river. To raise the presumption that such 



63 

waters were " navigable in fact," there must coincide, both 
the fact of tide and the fact of navigation being practicable. 

The case of Breen v. Locke, (11 N. Y. State Beporter, 
supra), involved the title to the soil in one of the extinct 
Harlem Creeks. The decision in that case, in effect held 
that the stream was not a navigable river. 

In most of the other cases the Court went out of its way 
to volunteer the opinion that the title to all streams and 
rivers in which the tide ebbs and flows is prima facie in the 
State or public, although that question was not before the 
Court for its decision. 

Davies, J., in his very able and exhaustive opinion, in 
The People v. The Canal Appraisers, (33 N. Y. p. 461), con- 
tends that the "supposed common law doctrine," did not 
apply to the large fresh water rivers and lakes in New York, 
and further, that by the commoiv law the term navigable 
river means navigable in fact. He says (p. 472): "While, it 
must be conceded that Hale, in his treatise, regards it as 
essential to a navigable river, that it should have the 
ebb and flow of the tide, and ceases to be navigable in this 
sense, when or at the point when it is uninfluenced by the 
tide, yet it can not be denied that such has not been the 
opinion of all the English judges in all cases. Lord Mans- 
field correctly said ex facto oritor jus and it seems more 
rational to determine the question of navigability or un-navi- 
gability from the fact of navigation or otherwise, than from 
a circumstance which may or may not be conclusive evi- 
dence of its navigability. 

The flow and re-flow of the tide is prima facie evidence 
as has been said, of the fact that the river is navigable, but 
the real and substantial inquiry must always be to ascer- 
tain whether the river is navigable or not. When this main 
and controlling fact is established, then we have the means 
of determining whether the alveus or bed of the river is the 
property of the adjoining owners, or belongs to the State, 
or the people represented by it." 

The acts of the Legislature of the State of New York, 
relating to the grants of land under the waters or of interest 
in the waters of the State, show that the legal meaning of 



64 



the word navigable, as understood by the legislature, is 
" navigability in fact." This application of the word naviga- 
ble, in these Acts, seems to be wholly irrespective of the tide. 



See Eevised Laws of 1813, Vol. 1, § 4, p, 
E. S., Chap. 9, Title 5, Article 4, § 67. 
Laws of 1850, Chap. 283, p. 621. 



293. 



Some of these divergent English and American decisions 
will now be compared in juxtaposition. 



UNITED STATES SUPPOSED 
COMMON LAW. • 

" By the term navigable river the 
law does not mean such as is navi- 
gable in common parlance. The 
smallest creek may be so to a cer- 
tain extent, as well as the largest 
river, without being legally a navi- 
gable stream. The term has in la/w 
a teehnical meaning, and a/pplies to 
all sPreams, rivers or arms of the sea, 
wJiere the tide ebbs and flows." 

Exparte3enmngs,6'W6nd.528, sup. 

" It may be remarked that by the 
Common Law the property ot the 
sovereign is said to extend to all 
places where the sea ebbs and flows, 
whether such are navigable or not ; 
but it is^probable the usages of our 
country have given a, reasonable 
limitation to this doctrine, confining 
the public right to what may be of 
public use, so that in many little 
creeks into which the salt water 
flows, but which are incapable of be- 
ing navigated at all, private prop- 
erty may be maintained." 

Opinion of Parker, Ch. J., in 
Commonwealth v. Charleston, 1 
Pick., Mass. R. p. 179, supra. 



ENGLISH COMMON LAW. 

Lord Mansfield said: " JSx facto 
oritur jus. How does it appear that 
this is a navigable river ? I'he flow- 
ing and refiowing of the tide does not 
make it so, for there a/re many places 
into which the tide flows that are not 
na/oigable rivers ; and tlie place in 
question may be a creek in their own 
private estate." 

Mayor of Lynn v. Tu'rner. 1 Cow- 
per, p. 86, supra. 

"If was for the defendant to make 
out that there was once a public 
navigation. Now it does not neces- 
sarily follow, because tfie tide flows 
and re-flows in any particular place, 
that there is therefore a public navi- 
gation, although of sufficient size. 
Tlie strength of this prima facie evi- 
dence, arising from tlie flux an,d re- 
flux of the tide, must depend upon, 
the situation and nature of the chan- 
nel. If it is a broad and deep chan- 
nel, calculated for the purposes of 
commerce, it would be natural to 
conclude that it has been a public 
navigation; but if it is a petty 
stream, navigable only at certain 
periods of the tide and then only 
for a short time and by very small 
boats, it is difficult to suppose that 
It ever has been a public, navigable 
channel." 



65 



Decision of Bailey, J. , in Bex v. 
Montagiie. 4 B. & C. supra, 598. 

In the De Jwre Maris, Chap. VI, 
there is this statement: "For such 
spring tides do many times overflow 
ancient meadowa and salt ma/reli£s, 
which yet unquestionably belong to tlie 
subject. And this is admitted of all 
hands.'" 



In the case of Providence Steam 
Engine Company v. Providence, 13 
Khode Island R. 348, 356, Potter, 
J., said: "To apply the Common 
Law doctrine strictly would require 
us to hold that all the marshes in the 
State belong to the State; yet from 
the very first settlement, although 
flowed by the tide, they have always 
been recognized as private property, 
platted and sold as such, taxed as 
such, and the State has made pro- 
vision by statute for exempting them 
from the fence laws, for the very 
reason that they are overflowed by 
the tides." 

In none of the above American cases are the statements 
in relation to the Common Law apparently matters of 
decision, but of opinion only. They should therefore be 
followed only in so far as they truly interpret the law. 
They do not profess to modify or change the law, as is the 
case in some of the decisions relating to the large inland 
rivers and lakes, but to expound and apply the law, as 
derived from the mother country. 

There appears to be but one English decision that seems 
to be wholly inspired by the paragraph in the De Jure 
Mards, relating to the flow and re -flow of the tide, and it 
will now be considered in connection with a celebrated 
American decision not so inspired. 



ENGLISH COMMON LAW DE- 
CISION. 

Trustees of Duke of Bridgewater v. 
Highways of Bootle, 7 Best & 
Smith's and S. C. 3, Law R. 3 
B. 4. 

"The Respondents, in the exer- 
cise of the powers of the general 
highway act (5 & 6 Wm. 4 C. 50), 
assessed certain parts of the Liver- 
pool docks, in the occupation of the 



COMMON LAW AS INTERPRE- 
TED IN THE UNITED STATES. 

Esther Rowe et al. v. The Granite 
Bridge Corporation, 31 Pick., 
Mass. R. 344-7. 

Bill in Equity. 

"The plaintiffs allege that they are 
seized and possessed, as tenants in 
common, of a certain tract of salt 
marsh in Milton; that from time 
immemorial there has been a creek 



66 



appellants, to the highway rate of 
the township of Bootle, on the ground 
that such premises were within that 
township. The land upon which 
the docks occupied by the appellants 
have been constructed, was situate 
on the foreshore of the river Mersey, 
between the ordinary or medium 
high water and low water mark, but 
the land has been re-claimed, and 
the tide no longer flows over it. 
Before the construction of these 
docks, the township of Bootle ex- 
tended on its western side, along 
part of its course as far as the sea, 
and along other parts as far as the 
mouth of the river Mersey. There 
was nothing to' show whether the 
Township of Bootle along its west- 
ern side, does or does not extend 
beyond the line of the ordinary high 
water mark, and if necessary for the 
purpose of the case, the Court were 
to decide what is the western boun- 
dary of the Township." 

Mellor, J., said: "There must be 
judgment for the appellant. The 
respondents have to show that the 
premises they have rated are within 
their township. Now, in the absence 
of any evidence, such as perambula- 
tion or other acts by the parish au- 
thorities, the land between medium 
high water and low water mark can- 
not be presumed to be within the 
adjoining parish; the presumption 
seems rather to be that it is extra 
parochial and here there is no evi- 
dence on the point. I can not help 
thinking there must be some misap- 
prehension In the report of Bex v. 
Landulph, as what is attributed to 
Patterson, J., seems quite inappli- 
cable to the circumstances of the 
case; at all events the ruling as 
reported is inconsistent with the 
authorities on the point, for there 
seems to be no distinction between 



commencing at the high part ot the 
marsh, and passing through it to 
Nepnotes Kiver, whereby the tide- 
water is drained off from the marsh, 
which creek is of sulficient width 
and depth to admit boats and gon- 
dolas and light-draft craft to pass 
up the creek in common tides, and 
such craft may be used to advantage 
in removing the crops of hay from 
the marsh ; that the defendants, by 
their act of incorporation, were 
authorized to construct a road over 
the lands therein mentioned and to 
build a bridge over the Neponset 
River ; that pursuant to their author- 
ity they had laid out the road over 
the marsh and across the creek, and 
as the creek runs in an angular direc- 
tion to that in which the road is laid 
out, the road passes over the creek 
the distance of fifteen rods, . . . 
and that the defendants are proceed- 
ing to fill up the creek ; and the bill 
prays for an injunction," etc. 

Shaw, Ch. J., delivered the opin- 
ion ot the Court. He said: "This 
Is a bill in equity, which comes be- 
fore the Court upon regular plead- 
ings and proofs. It goes substan- 
tially upon the ground of nuisance, 
and prays for a perpetual injunction 

against the defendants ' 

But the question which has been 
mainly discussed in the present case 
is : Whether the creek in question is a 
navigable creek ; and this is a question 
of fact upon the evidence. Before 
examining this evidence it may be 
proper to consider what distinctly is 
meant by a naniigable stream when 
applied to tide-water. It is not every 
ditch in which the salt water ebbs and 
flows through the extensive salt 
marshes along the coast, and which 
serve to admit and drain off the salt 
water from the marshes, which can 
be considered a navigable stream. 



67 



the seashore and the shore of a tidal 
river. There is no foundation for 
this rating, either on the above prin- 
ciple or on the construction of the 
Highway Act ; and the respondents 
having failed to make out any prima 
facie right to rate the dock, the other 
questions are immaterial, and there 
must be judgment for the appel- 
lants." 
Shea, J. and Lush, J. concurred. 
Having in view the above English 
authorities, it will hardly seem pre- 
sumptions to say that if anybody 
was mistaken it was not Patterson, 
J., but rather Mellor, J. 

It is as plain as the proposition 
that two and two make four, that 
any one who lays claim to a piece of 
land below high water mirk in a 
place like the harbor of Liverpool, 
must prove title, or be defeated. It 
was not, therefore, necessary for the 
Court to express an opinion whether 
the judgment in Sex v. Laneulph was 
sound or not. Mellish, Q. C, for 
appellant, relied mainly upon the 
ebb and flow passage in the De Jure 
Maris, and evidently carried the 
Court with him, for it not only 
adopted his views, but his very lan- 
guage. 

By this decision the Duke of 
Bridgewater's estate escaped taxa- 
tion under a technicality. Whether 
It could be taxed by anybody, quere ? 



Nor Is it every creek in which a fish- 
ing skiff or gunning canoe can be 
made to float at high water, which 
is deemed to be navigable. But in 
order to have this character it must 
be navigable to some purpose useful 
to trade or agriculture. /* is not a 
mere possibility of being used UTider 
some circumstances, as atextraordin- 
oury tides which will give it the eha/r- 
acter of a nmigable sin-earn. But it 
must be generally and commonly use- 
ful to some purpose of trade and agri- 
culture." 

In the case of The Montello, 30 
"Wallace, 430 U. S. Eep., Davis, Jus- 
tice, cites with approval the above 
decision of Ch. J. Shaw, quoting 
his language relating to the fishing 
skiff, etc. He then says: "This 
Court, in the case of the Daniel Ball 
(10 Wall.) held, that those rivers 
must be regarded as navigable riv- 
ers in law, which are navigable in 
fact. And they are navigable in 
fact when they are used, or are sus- 
ceptible of being used, in their ordi- 
nary conditions aa highways of com- 
merce over which trade and travel 
are or may be conducted in the Cus- 
tomary modes of trade or travel on 
water." 

This definition is quite in har- 
mony with that given by Lord Den- 
man in Colchestefr v. Brooke {supra"). 



Let these decisions be tested in the light of the rule laid 
down by Blackstone : " But here a very natural and very 
material question arises, how are these customs or maxims 
to be known, and by whom is their validity to be deter- 
mined ? The answer is, by the judges in the several Courts 
of justice. They are the depositories of the laws, the liv- 
ing oracles, who must decide in all cases of doubt, and who 
are bound by an oath to decide according to the law of the 
land. Their knowledge of that law is derived from experi- 



68 

ence and study ; from the viginti annorum lv,cuhrationes 
which Fortescue mentions ; and from being long person- 
ally accustomed to the judicial decisions of their predeces- 
sors. And indeed these judicial decisions are the principal 
and most authoritative evidence that can be given of the 
existence of such a custom as shall form part of the com- 
mon law. The judgment itself, and all the proceedings 
previous, thereto, are carefully registered and preserved, 
under the name of records, in public depositories set apart 
for that particular purpose, and to them frequent recourse 
is had when any critical question arises, in the determina- 
tion of which former precedents may give light or assist- 
ance. .. . . For it is an established rule to abide by 
former precedents, where the same points come up again 
in litigation, as well to keep the scale of justice even and 
steady and not liable to waver with every new judge's opin- 
ion ; as also because the law in that case being solemnly 
declared and determined, what before was uncertain, and 
perhaps indifferent, is now become a permanent rule which 
it is not in the breast of any subsequent judge to alter or 
vary from according to his own private sentiments, he 
being sworn to determine, not according to his own private 
judgment, but according to the known laws and customs of 
the land ; not delegated to pronounce a new law, but to 
maintain and expound the old one. Yet this rule admits 
of exception, where the former determination is most evi- 
dently contrary to reason — much more if it be clearly con- 
trary to the divine law. But even in such cases the subse- 
quent judges do not pretend to make a new law, but to 
vindicate the old one from misrepresentation. For if it be 
found that the former decision is manifestly absurd and 
unjust, it is declared, not that such a sentence was had law, 
but that it was not law ; that is, that it is not the estab- 
lished custom of the realm, as has been erroneously deter- 
mined." 

Blackstone's Com., V. 1, p. 69. 

And at p. 71 he further says : " So that the law and the 
opinion of the judge are not. always convertible terms, or one 



69 

and the same thing ; since it sometimes may happen that 
the judge may mistaJce the law. 

By the common law there are three kinds of rlyers. 
First; "Navigable rivers, so high as the sea ebbs and flows," 
which are also denominated " royal rivers." Second ; other 
tidal rivers "not navigable." Third; "Inland rivers not 
navigable." 

Gould, supra, p. 107, note 1. 

These rivers are divided into two classes, public and pri- 
vate rivers. The royal rivers are the public rivers, because 
they " are of common or public use for the carriage of boats 
and lighters, and common highways for man and for 
goods." The other rivers, whether fresh or salt, "are pri- 
vate not only in propriety or ownership, but also in use." 
These are private, because in their natural conditions they 
are not suitable for commerce, and are therefore not 
required by the people. 

De Jure Maris, c. 3. 

If a grant is made by the Government of land bordering 
upon a public navigable river to a private person or corpo- 
ration, it extends only to the medium high water line. If 
such a grant is made to a municipal or civil corporation for 
public purposes, it goes to the low water mark. 

The Mayor, dbc, of New York v. Ilart, 95 N. Y. p. 450. 
Rogers v. Jones, 1 Wend. 238, supra. 

n a grant is made by the Government or a private person 
of land bordering on a stream either of fresh or salt water 
and the same is not navigable, in fact, the grant extends to 
the center of the stream. See cases above cited. 

This rule is in accordance with the principles embraced 
in the decision in ex parte, Jennings, supra, and the other 
following cases. In Ex parte, Jennings, the question was 
the constnaction of a grant made by the State of lands bor- 
dering on the Chittenango Creek. Jennings claimed to be 
the owner of the bed of the creek. The Supreme Court 
held that the Chittenango Creek was not navigable, because 
the tide did not ebb and flow in it. It decided that grants 
included the stream. The Court said : " If the State had 



70 

intended to retain the property in the stream, they should 
have inserted an express reservation or exception to their 
grants. An opposite rule prevails in the construction of 
grants bounded on the margin of navigable rivers." (Then 
follows the opinion as to vs^hat constitutes a navigable river, 
above quoted). "A public grant bounded upon the margin 
of such waters extends by construction no further than 
high water mark, and leaves as to the rest, an absolute pro- 
priety interest in the public." 

In Child V. Starr, 4 Hill, the case involved the title to 
part of the Genessee River, Bradish, President, in deliver- 
ing the opinion, said (p. 380) : "Though the term shore is 
technically applicable only to the sea, to lakes or to other 
large bodies of water, yet in its judicial and popular appli- 
cation to rivers, it is, by elementary writers, the adjudica- 
tions of the Courts and in common understanding, as 
clearly defined, as well settled, and as universally recog- 
nized, as is the filum aquae, or thread of the stream, and a 
grant of land bounded generally on or running along a pri- 
vate stream, would not more certainly carry the grant to the 
thread of the stream, than would a grant bounded by and 
running along the shore of such a stream, be limited to the 
waters edge or margin of the stream." 

In this case, Walworth, Chan, said (pp. 373, 375): "The 
Common Law rule, as I understand it, is that the riparian 
proprietor is prima fade the owner of the alveus or bed of 
the river adjoining his land, to the middle or thread of the 
stream ; that is, where the terms of his grant do not appear 
to show that he is limited. 

And when by the terms of the grant to the riparian pro- 
prietor he is bounded upon the river generally, as a natural 
boundary, or in the language of Pothier, where the grant to 
the riparian proprietor has no other boundary on the side 
thereof, which is adjacent to the river, but the stream itself, 
the legal presumption is that his grantor intended to con- 
vey to the middle of the stream, subject to the right of the 
public to use the waters of the river for the purposes of 
navigation in their accustomed channel." 

This is Chancellor Kent's statement of the rights of ripar- 



71 

ian proprietors: " It is a settled principle of the Englisli 
law, tliat rights of soil, of owners of land bounded by the 
sea, or navigable rivers where the tide ebbs and flows extend 
to high water mark ; and the shore below common, but not 
extraordinary high water mark belongs to the State as 
trustee for the public ; and in England the Crown, and in 
this country the people, have the absolute proprietory 
interest in the same, though it may by grant or prescription 

become private property But the shores of 

navigable waters, and the soil under them belong to the 
State in which they are situated, are sovereign. The right 
of sovereignty in public rivers above the flow of the tide is 
the same as in tide-waters, they are juris j?ublici, except 
that the proprietors adjoining such rivers, own the soil ad 
fllum aquce. But grants of land bounded on rivers or upon 
the margins of the same, or along the same, above tide- 
water carry the exclusive right and title of the grantee to 
the centre of the stream, unless the terms of the grant 
clearly denote the intention to stop at the edge or mar- 
gin of the river ; and the public in cases where the river is 
navigable for boats and rafts, have an easement thereon or 
right of passage subject to the Jus publicum as a public 
highway. The proprietors of the adjoining banks have a 
right to use the river as regards the public." 
Kent's Com., Vol. 3, p. 427, m. p. 
This statement is evidently drawn in the main from the 
tresitise De Jure Maris. So far as it goes, it is in entire 
agreement with the English authorities. It does not define 
what a navigable river is, further than that it must be tidal. 
It does not lay down the iron rule, that every stream where 
the tide ebbs and flows, even " to the smallest creek," is a 
navigable river. 

It is true that he did not make so comprehensive a defin- 
ition as Lord Hale. He did not state that, not only must 
the tide ebb and flow in a navigable river, but that it must 
be " of common and public use, for the carriage of boats 
and Ughters, and a common highway for man or for goods, 
or for both." And he did not include aU the " streams or 
rivers that are private not only in proprietory or ownership, 



72 

but also in use, as little streams and rivers that are not a 
common passage for the king's people," but only referred 
to those streams of that character, that are above the ebb 
and flow of the tide. He makes no reference to small tidal 
creeks either directly or by implication. Neither does he 
go into the question of public use as the preliminary test of 
a navigable river, as seems to be the case in all the English 
enquires, where the river is not of such a public notoriety, 
as to be legally known to be a navigable river. 

In a recent action in ejectment brought by Edward 
Roberts v. August Baumgarteti, et al (51 N. Y. Supr. Court, 
p. 482), the plaintiff claimed title to part of the bed of Har- 
lem Mill Creek. He founded his claim' upon a title derived 
through a deed made by Benjamin Benson to his son Peter 
B. Benson, in 1791, conveying as follows : " All that mes- 
suage or tenement, being all my estate to the North of the 
Mill Pond, between the fence of the widow Storm, and the 
road leading to Harlem, including the Mill Stream and 
Mill and Mill Pond, with all its privileges and appurten- 
ances, and to shut the mill dam at the South side of said 
Mill Pond, where, it now lays." (This deed is examined 
and construed ^os<.) On the trial the plaintiff attempted 
to prove title to the creek east of the dam, but failed. 

The answer was a general denial and allegation of title 
and possession of the premises in dispute. 

On the trial the plaintiff produced as a witness S., who 
testified that he was a City Surveyor. That as such he 
had charge of the work of grading Second Avenue across 
this creek about thirty years before. That at Second 
Avenue, when he graded it there was at low tide one or 
two feet of water, and at high tide about eight feet. That 
he could not say that the creek was navigable. That they 
used to bring up scows and such boats in the creeek, that 
he could not say that he ever saw them up as far as the 
Third Avenue. That the tide ebbed and flowed in the 
creek. 

On the defense B. was examined as a witness, and testi- 
fied that he was familiar with the property in dispute and 
that neighberhood, and had known it for forty-three years. 



73 

That the creek was navigable at high tide up to within a 
few feet of Third Avenue ; that he had often seen sloops 
and canal boats there loaded with material. That he did 
not know whether the creek was wide enough for two of 
such boats to pass each other going up and down, that he 
did not know that he ever saw two or three in the creek at 
once, that there was very little water in the stream in some 
places at low tide, that he could not tell whether the stream 
was 80 or 100 feet wide, that it was very deceptive looking 
at water, that there were no docks in that neighborhood, 
that he did not know the height of the tide or amount of 
water, that his observation was that of a casual observer, 
that he had seen vessels passing up and down, boats and 
sailing vessels, loaded with cargoes of brick and lime, such 
as small sloops, that he never saw a schooner or steamboat 
in the creek. 

The learned trial judge rested his decision solely on the 
dteed from Benjamin Benson to Peter B. Benson, by which 
he held that Peter B. Benson and those claiming under him 
became vested with the title and possession of the premises 
mentioned in the deed, and gave judgment for the plaintiff 
from which the defendant appealed to the General Term. 

See this deed examined and construed, post. See 
printed case on appeal to the General Term. 

This evidence as to the character of the creek and its use 
for commercial purposes was not^sufficient under the com- 
mon law rule, to show a public navigation. 

See cases cited, supra. 

In this case the question of its navigability was not J'es 
jud%cat<s. 

Sedgwick, Ch. J., in delivering the opinion of the Court, 
O'Gorman, J., and Ingraham J., concurring, said : " I am 
further of the opinion that the deed on which the plaintiff 
relies for proof of title (i. e., Benjamin Benson to Peter B. 
Benson) does not describe the land between high and low 
water mark on Harlem Creek between the dam and the 
river." . ..." In this case Benson (Peter B.) owned 



74 

no part of the land under the stream formed by the creek 
East of the dam. It should not for that reason be inferred, 
that the description was intended to convey more than it 
would if he had been or claimed to be owner of some of the 
land." 

This case merely decides that Peter B. Benson and 
those claiming under him from the deed produced in evi- 
dence had no title to the premises in dispute (which lay 
South of the middle line of the creek, East of the miU dam, 
part being above and part below high water mark.) This 
is all that it was necessary to decide in order to dispose of 
the plaintiff's claim. 

In the beginning of his opinion the learned Justice makes 
this statement. "The creek was a small body of water 
that may he called an arm of the Harlem Biver. As the 
tide ebbed and flowed in it, the presumption would be that 
the stream was navigable People v. Canal Appraisers, (33 
N. T., 472, opinion of Judge Davies). In this ease its 
un-navigability was to be proved by the plaintiff. It is 
clear that the facts tended to show navigability in fact. The 
title to the land in question was then in the State or public, 
or in the City of New York Mayor v. Hart, (95 N. T., 443). 
No conveyance appears to have been made by the City or 
the State. It therefore appears that the grantors in the 
deed from Johnson to Benjamin Benson, and from Benja- 
min Benson to Peter B. Benson had no title, nor by pre- 
sumption or actual possession." 

It is to be noted that the question as to whether this 
creek was an arm of the Harlem Biver or not, was not 
before the Court. Neither was the question of the title to 
it. The court does not decide that the creek was in fact 
an arm of the Harlem Eiver, but merely states that " it 
may be called an artn of the Harlem Eiver." Strictly speak- 
ing it was a fresh water stream or rivulet, which emptied 
into the Harlem Eiver, the waters of which were backed up 
for a considerable distance by the flood tides of the river. 

It was not therefore an integral part of the river. 

See Breen v. Locke, 11 N. Y. State Eeporter, p. 288. 



75 

The facts in regard to the creek which was the subject 
of the controversy in Breen v. Locke, were almost identical 
with these relating to Harlem Creek. An inspection of the 
topographical maps of Eandall, Coulton (1836), or Viele 
will show this. Both creeks "were created partly by 
several water streams when descending from the water shed 
of the high ground in the neighbourhood, and partly by 
the waters of the Harlem Eiver." In both cases there was 
very little water in the creeks at low tide. In both cases 
the creeks were navigable for small vessels at high tide. 
" There was nothing cove-like in either of the creeks, even 
when the tide in them was high." In both cases the prem- 
ises were between high and low water mark. The shore 
contours of both were those of a widened stream. In both 
cases the creeks have been filled up and avenues and 
streets constructed over parts of the ground they occupied. 

The creek at Eighth Avenue and 155th Street was prob- 
ably more than twice as wide as Harlem Creek. The direct 
question which the Court was called upon to decide in 
Breen v. Locke was, as to whether the bed of the creek 
belonged to the City of New York, or the Town of Harlem. 
The case turned upon the construction of the Harlem 
patents, and the reasoning of the Court seems to be con- 
clusive. 

Bartlett, J., says : " An inspection of the topographical 
map between pp. 39 and 40 of the printed case goes very 
far towards satisfying us on this point. 

" It would seem very inaccurate for any one using lan- 
guage in its ordinary sense, to speak of the premises, as 
shown on that map, as being situated on the Harlem Eiver, 
or any part of it. Naturally a person endeavoring to 
describe their location in general terms, would say they 
were partly in the bed and partly on the shore, between 
high and low water mark of a creek leading into the 
Harlem Eiver. There was nothing cove-like about the 
creek, even when the tide in it was high. The shore contours 
were those of a widened stream. The land in dispute was 
898 feet from the main body of the Harlem Eiver at high 
tide. 



76 

" It is difficult to perceive how the creek at this point 
could be of any value or importance to the City of New 
York in a commercial sense. ' The City was to be the sea- 
port,' says the Court of Appeals in the case of The Mayor, 
&c. V. Hart, supra, and for this purpose its waterfront was to 
girdle tJie whole island, while the village (of Harlem) was 
meant for a rustic hamlet, whose inhabitants should own 
cattle rather than ships. 

"But it does not seem to us that the portion of this 
creek, upon which these premises were located, constituted 
any part of the water front thus spoken of in that case. 
The fact that the creek there has been filled up and that a 
part of it is covered by the road bed of the Eighth Avenue, 
is pretty conclusive evidence that it was valueless for any 
use connected with shipping. 

" As to this fundamental objection to the title then, our 
conclusion is, that the land in question was conveyed to 
the freeholders and inhabitants of Harlem by the patents 
already mentioned, and that the title thereto did not pass 
to the City of New York under the Dongan Charter." 

The judgment in Breen v. Locke, rests upon the decision 
in Mayor, c&c. v. Hart. The language of the Court of 
Appeals in that case is, that under the Dongan Charter 
the City of New York acquired the title to the tide-way or 
land between high and low water mark on the whole circiut 
of Manhattan Island, p. 450. Again on page 452 : 'We 
are satisfied that the River line was the high water mark, 
and so the City owned the tide-way." 

In Roberts v. Baumgarten the Harlem patents were not 
produced in evidence, and not referred to in the decision, 
and it may be assumed that they were not taken into con- 
sideration in forming the judgment. This is rendered the 
more probable from the fact, that while Justice O'Gorman 
was Corporation Counsel for New York, he furnished the 
Comptroller with an opinion relative to the McGown 
marshes, in which he arrived at the conclusion, that the 
City did not acquire any title in the marshes by virtue of the 
Dongan Charter. The reasoning embodied in this opinion 
would lead irresistibly to the conclusion that the Harlem 



77 

creeks passed also to the freeholders and inhabitants of 
Harlem under their patents. 

See opinion of Judge O'Gorman, Appendix D. 

Neither was the deed from Director Kieft and his Coun- 
cil to Dr. John Montague, nor the deed from the Town of 
Harlem to John Montague the younger (supra) put in evi- 
dence on the trial of that case, so that the question of the 
title to the Harlem Mill Creek, as derived under those 
patents, and the title to the southerly half of that creek and 
mill pond as conveyed by those deeds, had not been before 
the Court. 

The judgment of the General Term reversing the judg- 
ment at Special Term in the case of Roberts v. Baumgartea 
was affirmed by the Court of Appeals, October 2, 1888 (110 
N. T., p. 380). Gray, J., in delivering the opinion, said : 
" The plaintiff claims to derive his title through mesne con- 
veyances, from one Benjamin Benson. Benjamin Ben- 
son's deed to Peter B. Benson, his son, which was relied 
upon hy the plaintiff as a source of title, conveyed by the 
following description, viz. . . . "Under this description 
plaintiff claims that the whole of Harlem Mill Creek, 
between the tops of its banks, was conveyed, and that the 
grantee acquired the ownership of the bed of that stream. 
Such a construction of the grant, however, is not permis- 
sible, either by well settled rules of law, or in the light 
which the facts, disclosed by the proofs, throw upon the 
claim. Harlem creek was subject to ebb and flow of the 
tide to a point beyond the premises in question. Such 
bodies of water, at common law, were deemed to be navi- 
gable, and held to be royal rivers, or the property of the 
Crown. They were placed on the same footing as the sea, 
and regarded as public highways. This rule of the com- 
mon law became a part of the fundamental law of this 
State, by the adoption of the original constitution of 1777. 
There have been no revisions of that instrument or any 
acts of the Legislature which in any wise affected the con- 
tinuance of such a rule as part of the body of the law of 



78 

our State, and as one which governs in cases where the 
rights of riparian owners to waters subject to tidal influ- 
ences are in question. To the rights of the Crown the peo- 
ple in this State succeeded upon their separation, and the 
title to the lands under water, where the tide flows and 
re-flows, vested and remained in them. This rule has been 
uniformly recognized in the adjudged cases in the reports of 
this State which discuss the title of the people in such lands." 

As has been before remarked, the decision in this case 
rested on the issue raised in the pleading, namely : the 
construction of the deed by Benjamin Benson to Peter B. 
Benson. The learned judge's statements in regard to the 
common law of England on tidal waters are, of course, 
entitled to respectful and thoughtful consideration ; but if 
these statements are not of the substance of the judgment, 
the rule laid down by the great jurist, Blackstone, above 
quoted, is still open to us for application to the case now 
under examination. 

It is noteworthy, that both the General Term decision 
and that of the Court of Appeals refer to the case of The 
People V. The Canal Appraisers (33 N. Y. 461), and yet an 
examination of that case will fail to show any decision which 
in express terms holds that by the Common Law of Eng- 
land the title of the Crown extended to all waters where 
the tide ebbs and flows, irrespective of whether such waters 
are in fact navigable or not. It is believed that question 
has never been squarely presented and adjudicated upon 
in any court of final resort in this State. It is very diffi- 
cult to bring the mind to believe that if the question could 
be fairly and fully presented to the Court of Appeals, by 
an intelligent presentation of the case, that that Court 
would render a decision holding that : "By the term navi- 
gable river, the law does not mean such as is navigable in 
common parlance. The smallest creek may be so to a certain 
extent, as well as the largest river, without being legally a 
navigable stream. The term has in law a technical meaning, 
and applies to all streams, rivers, and arms of the sea wh&re 
the tide ebbs and flows." 

Vide Ex parte Jennings. 



79 

But we are bound to concede that when a question of 
law is fully and fairly presented to the Court of Appeals, 
with such assistance as learned counsel can render for the 
information of the Court, that this august tribunal, in its 
collective wisdom, will beyond doubt, render a decision in 
accordance with the law. 

Some well-known facts appear to have been not brought 
to the attention of the learned judges who delivered the 
opinions of the General Term and the Court of Appeals, 
namely : That for many years the briny waters of the East 
Eiver had ceased to make their diurnal journeys up and 
down the grassy channel of Harlem Mill Creek ; that for 
more than thirty years that creek had ceased to receive the 
visits of the fishing skiff, the gunning canoe, the awkward 
scow, or the picturesque sloop ; that during that time it 
had ceased to be a royal or any other kind of fishery ; that 
the finny tribes, including the bass, flounder, and slippery 
eel, had wholly disappeared from its romantic waters ; that 
the soft and yielding channel of that ancient stream was no 
longer occupied by grasses, mosses, and aquatic plants, but 
that they had been supplanted, and its beautiful channel 
filled up to the very brim and over by ashes, garbage, 
dirt and rubbish — the conventional filling supplied by the 
street contractor in lieu of the "good and wholesome earth" 
required by law. 

What the learned judge says in delivering the opinion of 
the Court of Appeals as to the present binding force of the 
Common Law, as recognized by the Constitution of 1777, 
is unanswerable. By that standard must this question be 
determined, and not by any opinions which are deviations 
from that law. 

Let us now examine an English case, quite similar in its 
nature. The case of Rex v. Montague (4 B. & C. 598, sv^ra.) 
was an indictment for cutting a trench across a common 
and ancient highway. At the trial it appeared that the 
highway in question was an embankment across a creek, 
and that the defendants cut down this embankment by 
order of the Corporation of London, who contended that 
the creek was a public navigable stream and that the road 



80 

improperly obstructed it ; that the road had been so high 
for twenty years that no boats could pass over it at any 
time ; that for years before, the only evidence of an actual 
navigation was by very small boats for a brief period at 
the time of high water. 

Notwithstanding the proof that this was a tidal creek, 
the court held that : " It was for the defendant to make out 
that there was once a public navigation." If, according to 
the Common Law, all creeks in which the tide ebbed and 
flowed " were deemed to be navigable, and held to be royal 
rivers, or the property of the Crown," as Judge Gray 
expresses it, then this English decision is wrong. The 
Court should have said in regard to the creek, as the tide 
ebbed and flowed in it, the presumption would be that the 
stream was navigable. In this case its un-navigability was 
to be proved by the plaintiif (opinion of Sedgwick, Ch. J.) : 
i. e., the party who constructed the trench across the creek, 
and not the defendant. City of London, which removed the 
obstruction. 

Bailey, J., in delivering the opinion, goes on to say : 
"But even supposing this to have been at some time a 
public navigation, I think that from the manner in which 
it has been neglected by the public, and from the length of 
time during which it has been obstructed, it ought to be 
presumed that the rights of the public have been lawfully 
determined. . . . But they might have been put an 
end to by act of Parliament, or by writ ad quod damnum, 
and perhaps by commissioners of sewers, if there were 
any appointed for the district and they found that it would 
be for the benefit of the whole level. 

"For these reasons it appears to me that if this case were sent 
down for trial again, the jury would be bound to find either 
that there never was a public navigation through the locus in 
quo, or it has been determined by some lawful means." 

And after reviewing the cases of Mayor of Lynn v. Tur- 
ner and Miles v. Hose, supra, he said : " The strength of 
ih\s prima facie evidence, arising from the flux and reflux 
of the tide must depend upon the situation and nature of 
the channel," etc. 



81 

Holroyd, J., and Littledale, J., gave opinions to the same 
effect. Now it is to be noted that this case not only cites 
with approval the case of Mayor of Lynn v. Turner, but 
uses almost the identical language of Lord Mansfield in 
that case. 

In Roberts v. Baumgarten, although the important fact 
was before the court that the City of New York, acting 
under the authority of the Legislature, had actually closed 
this creek thirty years before the trial, and destroyed what- 
ever navigable capacity it had, it seems to have been over- 
looked or considered immaterial. 

The Second Avenue was established by law across this 
crieek as far back as 1837, by proceeding for opening that 
avenue, and the bed of that part of the creek was taken by 
the commissioners and the title acquired by the City for a 
public avenue. Of these proceedings the Court, probably, 
had judicial notice. These facts raised the presumption, 
that the creek was not a public stream according to the law 
as laid down in Hex v. Montague, supra. As that is a com- 
mon law decision of acknowledged authority, it ought to 
control in Roberts v. Baumgarten, not only as to the creek, 
being a private stream because of its obliteration, but also 
on account of its location, small size, and failure of ade- 
quate proof that it had been used as a public navigable 
channel, time out of mind. 

The deed on which the plaintiff relied, clearly did not 
include the locus in quo, and to remedy that defect in his 
claim the plaintiff attempted to prove title by prescription, 
to that part of the creek, on which to found the claim that 
his grant properly interpreted, incTuded the premises in 
question. To meet this, the defendant attempted to show 
that the creek was a public navigable stream. The defend- 
ant's counsel was evidently aware that proof that the tide 
ebbed and flowed in the creek was not of itself sufficient to 
establish that fact, but was only one of the elements going 
to show it, and that in addition, he must show an actual 
public navigation and of sufficient length of time to bring 
it within the requirements of the law. 

The plaintiff also failed to show title by prescription to 



82 

any part of tlie premises claimed by him, and this really 
disposed of the plaintiffs claim. But as the question of the 
navigability of this creek was raised in this case, although 
that question was not material, under the evidence pre- 
sented by the plaintiff, the evidence offered by the defend- 
ant was not sufficient to establish the fact that this was a 
public navigable stream. 

In Vooght v. Which (2 B. & A. 662 supra), the learned judge 
who tried the cause declined to allow the question to go to 
the jury on the evidence, to consider whether the stream 
called Channel Sea Eiver was navigable, and in what way, 
whether as a public navigable river, or for the convenience of 
the adjoining occupiers; "even although it had been a pub- 
lic navigable river," and he further added, that whether nav- 
igable or not, he thought the party was bound to use the 
water in the state in which it was found to be for the space 
of twenty years invariably, and that a benefit so long 
enjoyed could not afterwards be disturbed. 

It is true that on the appeal of this case the appellate 
Court held that it was error in not allowing the case to 
go to the jury, to say whether the stream was ever a public 
navigable stream or not ; but in other respects the judgment 
does not seem to have been disturbed. 

In the case of Roberts v. Baumgarten, the defendant's tes- 
timony entirely failed to come up to the requirements of 
the law as laid down in Vooght v. Winch. It did not show 
twenty years use of the water, nor even that the use of the 
water as proved by the defendant, was not for the conveni- 
ence of the adjoining owners on each side of the creek. 
This might have been the case, and therefore there was a 
failure to show any use by the public. Aside from this, the 
fact that the tide ebbed and flowed in the creek did not of 
itself raise the presumption that there was, therefore, a 
public navigation, although the channel may have been of 
sufficient size. 

Besides it was in evidence that this creek was closed by 
virtue of an act of the Legislature, more than thirty years 
before, and the rights of the public, if it ever had any, have 
been thereby lawfully determined. 



83 

To hold that in all tidal waters, according to the common 
law, the title to the bed of the stream is prima fade in the 
crown, would unsettle the titles to those minor creeks and 
private navigable rivers which time out of mind have 
belonged to the subject, to say nothing of the numerous 
little creeks which flow through the marshes, which have 
always belonged, ^rzTOa/acte, to the subject. 

Mayor of Lynn v. Turner (1 Oowper, p. 86). 

Rex V. Montague (4 B. & C. 598). 

De Jure Maris, C. 6. 

Providence Steam Engine Co. v. Providence (12 E. 1. 348- 
356 supra). 

To return to the creeks which are the subject of this 
inquiry. There was nothing in regard to them calculated 
to raise the presumption that they were in any respect pub- 
lic waters. 

" They had no caput portus, for the receipt of mariners 
and merchants, and the securing and vending of goods and 
victualling their ships." Neither were they directly or 
remotely connected with such a port or with navigation in 
any way. As has been before remarked they ran through 
marshes, so far as the water was salt. At the spring tides 
they overflowed their banks, and submerged the surround- 
ing flats to a considerable extent. They were not arms of 
the sea in any true and proper sense of the term. They 
were located in a somewhat barren, and wholly unpopulated? 
region of country. The object of the grants of lands bor- 
dering on the streams was to encourage the establishment 
of farms. There seems to be no reliable authority, or log- 
ical or common sense reason, for limiting these grants to 
the line of high water mark, that would not apply with 
equal force, if the creeks had been wholly of fresh water. 
That being the case, the grants extended to 'Csi&filum aquae 
of the respective creeks. The above authorities appear to 
show very clearly that, according to the Common Law, 
small creeks and streams like those mentioned in the deed 
from Director-General Kieft and his council to Dr. Johan- 
cnes Montagne, were not public, but were prima fade private 
waters. Eivulets of that character were a distinguishing 



84: 

feature of Manhattan Island. From the high ground which 
ranged along the center of the island for almost its entire 
length, and which was ultimately known as " The Backbone 
of the Island," innumerable springs of pure water flowed 
East, West and' North, and emptied into the East and 
North Elvers, and Harlem Kills and Spuyten Duyvel Creek. 
Into the mouths of all these creeks the tide ebbed and 
flowed. Many of the streams were of considerable size and 
capable of forming harbors for sloops and other vessels. 
All these creeks (with two or three exceptions in the Har- 
lem Eiver) have disappeared and given place to the thor- 
oughfares and solid structures of this great Metropolis. 
One of these streams issued from the Collect Pond and 
flowed through a marsh Northwesterly, substantially along 
the line of Canal Street to the North Eiver. A stone bridge 
crossed the stream at Broadway in the early part of this 
century. Another stream flowed Southeasterly and emptied 
into the East Eiver at about the foot of James Street. 

It is a matter of tradition, if not of history, that at one 
time it was in contemplation to construct a canal through 
the marshes, and about on the line of Canal Street, to con- 
nect the Hudson Eiver with the Collect Pond ; the canal to 
be used for the passage of vessels to and from the river to 
that pond, and to locate the public market on the margin 
of the pond. 

The question naturally arises as to why all these creeks 
were closed and filled up, if the parts in which the tide 
ebbed and flowed were public navigable waters and high- 
ways of commerce. If, in the early days of the history of 
Manhattan Island, the navigable portions of these smaU 
streams were not considered to be of sufficient value to be 
kept open for public use, of how much less importance do 
they appear at the present tim<^ ? In these days of immense 
steam and sailing ships, of four masted schooners, of yachts 
rivaling in tonnage an ancient man-of-war, of railways 
crossing broad rivers, almost trackless marshes and passing 
through great mountains, it appears to be very unreason- 
able to talk of little streams like those mentioned in the 
Montague deed, being public navigable waters. 



85 

The existence of a structure like the Brooklyn Bridge 
testifies to the fact that even commerce must yield up some 
of its privileges and prerogatives to the requirements of 
modern progress. The Harlem patents included aU the right 
and title of the Sovereign to the creeks and watercourses 
with the soil under them, within the bounds of the lands 
granted, without any reservation. This of itself raises the 
presumption that the creeks were not public, navigable 
waters. 



CHAPTEE IX. 

The McGown Marshes, or the Meadows In the Bay of 

Hellgate. 

The early history of part of these meadows is related in 
Chapter Y. ante. Subsequently to the arrangement with Di- 
rector Stuyvesant, by which John Montague the younger 
retained Montague's Point as part of his father's estate, and 
before he obtained the deed for the same from the authorities 
of the town of Harlem, as related in that chapter, he made 
an exchange of a parcel of meadow land " lying south of the 
Great Meadow " for the Meadows in the Bay of Hellgate. 
These meadows, together with those belonging to Montague's 
Point, constituted the McGown Marshes. 

Before continuing the history of this title, a brief account 
will be given of the Harlem Marshes. 

The ample fertile plains, the salt marshes and intersecting 
creeks, and the springs and fresh-water stream were the at- 
tractions which led to the early settlements in Harlem. That 
the salt marshes were highly prized from the beginning is 
shown by the historical records. In the early days, such of 
the meadows as were not granted or alloted were used in 
common. A few extracts are given by way of illustration. 
The first is : — An Order issued by Governor NichoUs, prior 
to granting his second patent : 

" A warrant to the constable of Westchester about some Meadow Ground 
claimed by Harlem. 
" Whereas, lam informed that the InhaUtants of narlemlume for divert 



86 

yearn mowed their hay in the meadows on the other side of Harlem Eiver, 
where John Archer of your town pretends an interest by virtue of a 
patent granted for the Yonker's Land to Hugh O'Neale and Mary his 
wife. These are, to require you to warn the said John Archer, that he 
forbear cutting hay in those Meadows this present season, and likewise 
that he do not presume to molest those of Harlem until I shall be fully 
satisfied of the Titles on both parts, and give my judgment thereupon to 
whom of right these Meadows do belong. 

" Given under my hand at Port James, in New York, this 16th day of 
August, 1667. " R. NICOLLS." 

These were the meadows, lots 1, 2, 3, 4, " over against 
the Spring " on the northerly shore of the Harlem River. 
It was the omission of these lots, together with the meadow 
lots 1, 2, 3, 4, " going through Bronk's Kill over against 
Great Barne's Island," from the patent, as well as the change 
of the name of the town, which gave so much dissatisfac- 
tion with that patent. The fact that the disputed meadows 
were included in the Second Patent shows that the Gov- 
ernor decided in favor of Harlem. The Order of the 
Dutch Director and Council provided "that for each 18 to 
24 morgen of arable land there should be allowed six or 
eight morgen of meadow." 

As to Little Barent's Island, Stuyvesant had granted the 
meadows lying around it to some of the Harlem People, 
and had allowed all of them to use the Island for the pas- 
turing their young stock. 

Delavall's meadows on this island lay in common with 
Cresson's, and Gresson was willing to give up his part, pro- 
vided he could have the meadow west of the Hills along 
Montague's Kill, at the north side of the Kill, and if the 
person using Barent's Island would help him a day in 
making fence. 

Eiker's Hist., p. 264. 

The Bound Meadow named in the patent was called 
Moertje David's Vly, or Mother David's Meadow. It was 
the identical meadow named in Kuyter's grant, and lay 
just within the Bay, or close at Manhattanville, and it was 
so named to distinguish it from another " Round Meadow" 
at Sherman's Creek, called in the original allotments the 
Great Meadow. 



87 

Eiker's Hist., pp. 146, 192, 27, 272, 264, 261. 

"The farmers used a ' Wey-schuyt ' (boat) to bring their 
hay from the meadows." 

In the bay formed by Hoorn's Hook and Eechawanes, 
or Montagne's Point, as it was subsequently called, and 
the high rocky hills at the south and west, there was at the 
time of the grants to Huddie and Montagne a series of 
these meadows. They ranged mostly, easterly from Third 
Avenue, and the exterior easterly points extended to about 
Avenue " A." The deepest part of the bay was at 98th 
Street, and there for a short distance the margin was a little 
west of the westerly side of First Avenue. At this point 
a broad creek led through the meadows, crossing Second 
Avenue at 99th Street ; thence in a northwesterly direction 
to a point a little north of 100th Street, and easterly from 
Third Avenue, and thence northeasterly and northwesterly 
to a point between 103d and 104th Streets and Fourth and 
Lexington Avenues, where it formed the outlet for a brook 
which had its source in the high grounds now in Central Park. 

There were a number of small creeks intersecting these 
meadows. The large creek divided the range into two parts. 
The northerly and greater portion was attached to Mon- 
tagne's Point; the remainder of the range, lying southerly 
of the division creek, was known as The Meadows in the 
Bay of Hellgate. This name was no doubt given because 
at this point the bay had its greatest depression and lay 
directly opposite the perturbed waters of Hellgate. "While 
the outlines of the bay have been somewhat changed by 
the construction of bulkheads or slips in some places, or 
solid fiUing, the meadows have disappeared and given place 
to avenues and streets, and to a considerable extent to sub- 
stantial buildings. There is, however, a small section still 
remaining, which may be seen on the shore of the Harlem 
River between 103d and 104th Streets, near the projected 
line of Avenue A. A creek divides the meadows, into 
which the tide ebbs and flows as of old. 

See Map, Appendix I, showing the meadows and Mon- 
tagne's Point. 



88 

It is generally, but erroneously supposed, that all of the 
meadows lying between Hoorn's Hook and Montague's 
Point were included under the general designation of the 
Meadows in the Bay of Hellgate. The proper classifica- 
tion of these two parcels should be kept in mind. The 
northerly portion formed part of the original Harlem Farm 
settled upon by Hendrick de Forest, granted by ground 
brief to Huddie, and purchased by Dr. de La Montague at 
the auction sale at Fort Amsterdam, and expressly men- 
tioned in the description in the deed to him in which the 
Point is described as being hetween two kills. The title to 
the northern division of these meadows, therefore, h'as its 
source in the first ground brief granted fOr any land in 
Harlem. All the marsh land included between the division 
creek and the high land of Montague's Point became abso- 
lutely vested under the grants to Huddie and Montague 
long before the advent of the English or the granting of 
any of the patents and charters by the British governors. 
This land also has the further distinction of being a part 
of the land that was first sold by order of the Court on 
Manhattan Island ; and what title can possibly be better 
than a " Court title ?" 

It is quite probable that the southerly portion of these 
meadows was allotted to the Dutch Church in Harlem prior 
to the British occupation, as may be inferred from the fol- 
lowing historical statements of Eiker, p. 192, &c.: — 

" Salt hay was thought indispensable for the cattle ; 
hence a small parcel of marsh or meadow, usually about 
three morgen, was set off to each lot of bouwland. That 
all might be supplied, these had to be taken wherever found 
on Little Barent's and Stony Island, on the other side of 
Harlem Eiver, about Spuyten Duyvel, and in the Great 
Meadow upon Sherman's Creek. The ' Meadows in the Bay 
of Hellgate ' were reserved to the church, to be used or 
rented for its benefit, with the bouwland in the Village set 
apart for the same purpose." 

Biker's Hist, of Harlem, p. 192. 



89 



At any rate, if these particular meadows had not been 
allotted to the church before the advent of the British, they 
passed to the Town of New Harlem under the NicoUs patent 
and the allotment was made by the Town authorities. 

It appears by the Town records under date of June 14th, 
1667, that, " John Montague, Jr., was permitted to have, in 
case of exchange, the church lots, meadows lying in the 
hend of Hellgate ; provided he leave instead a piece of 
meadow, lying south of the Great Meadow, belong to num- 
ber 1." The Great Meadow, was that upon the North side of 
Sherman's Creek, No. 1, referred to the lot on Jochem 
Peters' Flat, which Montague gave up to the Town in 1661. 

Montagne then secured from the Tappan Indians the 
following bill of sale : 

" On this 29th August 1669, old style, the under written 

Indians have sold to me, John La Montagne, the Point 

named Eechewanis, bounded between two creeks and hills 

and behind a stream which runs to Montague's Flat ; 

with the Meadows from the hend of Hellgate to Komande 

Kong." 

Kechkewackan, 

Achwaaroewes, 

Sacharooh, 

Pasachkeeglne, Tappan. 

Niepenonhan, 

Konhamwen, 

Kottaren. 

Montagne subsequently and on 8th February, 1672, 
obtained the deed of confirmation for the Point and Mead- 
ows in the Bay of Hellgate, from the Town, as stated above 
under the head of Tidal Creeks. 

See this deed appendix, B. 2. 

Prior to obtaining the above mentioned deed from the 
authorities of the town, it appears from the Harlem records, 
dated May 18th, 1671, that John de La Montagne made an 
agreement to sell to John Louwe Bogert (otherwise Von 



Sellers of the Point 



90 

Schoonerwoert) " a piece of land named in tlie Dutch lan- 
guage, Montagne's Point, but by the Indians Eechewanis," 
with the meadows thereto attached, and the meadows lying 
in the Bay of Hellgate, " for 3,000 guilders in sewant, i. e., 
wampum, or in grain at the price of sewant," 1,500 guilders 
to be paid May 1st, 1672, and the remaining 1,500 guilders 
one year afterwards. Possession to be given when the first 
payment was made. 

See this agreement in full Appendix B, No. 1. 

This first payment was duly made and Bogert went into 
possession of the farm in 1672 under the agreement. He 
came from Bedford, Long Island. Before the second pay- 
ment became due Montague died, and his widow Maria, who 
was sometimes called by her maiden name Vermilje, received 
the balance of the purchase money, and gave Bogert a deed 
for the place. It is probable that Montague had devised 
the property to her, but of this there appears to be no rec- 
ord. The deed was given under the direction of the 'Mag- 
istrates of the Town as follows : 

" Appeared before me Hendrick Vandervin, Secretary of 
the Town of New Harlem, and the afore-named witnesses, 
Mrs. Maria Vermilje, the widow of Jan de La Montague, late 
Secretary of the Town, who had in his lifetime sold to Jan 
Louwe Van Schoonderwort, his piece of land called Mon- 
tagne's Point, together with the meadows thereunto belong- 
ing, as shown by an abstract of the sale thereof, dated 18th 
May, 1671, and by indenture bearing date 8th February, 
1672, for the sum of 3,000 guilders, of which sum the 
appearer, characterized as above, hereby acknowledges the 
receipt in full to the last penny, in the first place giving 
thanks to the buyer for his punctuality, and releasing him 
from all further demands. Therefore it has been ceded 
and conveyed, so the grantor hereby cedes and conveys the 
said piece of land, and ineadows thereunto helonging to him, 
the buyer in free and true possession, as they were possessed 
by her, without that she the appearer, or her heirs thereto 
shall claim any right 



91 

" Thus done and executed at New Harlem on the 30th 
day of the month of March, 1674. 

" Mabia Montagne. 
" Witnesses : 

"David Des Mabet, 
" Daniel Toubneub." 

On the 16th day of January, 1673, the constables and 
magistrates passed a resolution fixing the amount of Bogert's 
land at sixteen morgen. This estimate did not include the 
meadows. They did not form the basis for claims to allot- 
ments of the common lands. 

See Appendix, B 9. 

Although the deed from the town to Montagne, and from 
the Montagues to Bogert, embraced all the meadows in the 
Bay of Hellgate, Joost Von Oblinus, who owned a farm 
on the Northerly part of Hoorn's Hook, adjoining Mon- 
tague's on the South, claimed a small section of the meadows 
in the Southern extremity of the Bay. He procured a cita- 
tion for Bogert to appear at the next Court day and answer 
" why he has forbidden him to set off his meadows " {i. e. 
fence them in). The case came on trial in December, 1677, 
of which we have the following account. 

"Whereas a dispute has arisen between Joost Von 
Oblinus and Jan Louwe Van Schonewert over a certain 
small meadow lying in the Bay of Hellgate, which each of 
the parties claims as belonging to him ; after several rebates 
and rebuts on either side, it was decided by the Honorable 
Court, the said small meadow, being the most Southerly of 
the range under against the steep hill, next the kill, that 
John Louwe (Bogert) for his meadows shall have those that 
stretch from the great kill from Anchor's house ; the rest to 
Joost Von Oblinus. And ordered that each shall bear his 
own costs attaching to this." 

See Appendix B, No. 5. 
Also Bicker, supra, p. 406. 



92 

This case shows that these meadows were worth going 
to law about at that early day, and serves to identify them. 
The presumption is that the decision of the Court was 
based upon evidence of the possession and title of the 
respective parties. The division line established by this 
judgment continued to be the permanent boundary line 
between the two farms. 

The creek which formed the division line began at 96th 
Street and First Avenue, and ran about west, crossing the 
Second Avenue at 95th Street, and terminated at the steep 
rocky hill at about 94th Street between Second and Third 
Avenues. Von Oblinus subsequently sold his farm to John 
De Lamater. 

See Holmes Map of the Margaret McGown Estate 

which, exhibits this creek and boundary line. 
Also Map, Appendix I. 
Also Appendix B, 3. 

Eesolution of the Magistrates, &c., fixing Bogert lands 
at 18 morgen. 

In 1691, the Patentees and Freeholders of Harlem deter- 
mined to divide a part of the unappropriated or common 
lands, and caused them to be surveyed and laid out into 
lots and parcels, whereof each inhabitant of the town was 
to draw a part, every one according to his estate or property 
then possessed in severalty. Adolph Meyer, Jan Hendriese 
Brevoort, Samuel "Waldron and Peter Van Oblinus were 
appointed to make these allotments, and transfer the titles 
with the aid of Adrion Appel, surveyor. 

The parcel or lot No. 25 fell to John L. Bogert by virtue 
of his ownership of Montagne's Point Farm. The deed of 
the town is dated March 21st, 1701, and the lot is described 
as follows : " There is set off for John Lou we Bogert, for 
the right of sixteen morgen, and an er/" right ; a piece of land 
lying in the tend of Ilellgate, beginning at the Southwest 
corner of the Hop Garden by a birch tree, till to a white 
oak tree, which stands by a small swamp (creupelbosje) 



93 

marked J. L. B. and J. D. L., thence toward the river, past 
a rock marked J. L. B. and J. D. L., and so on tJie heach, 
till to the end of a meadow, north of a rocky hill ; as it is 
at present fenced in." 

See this deed, Appendix B., No. 6. 

This lot 25 contained 14 morgen, i. e., 28 acres. It will 
be noticed that the description carries it to the end of the 
meadow and that the lot is fenced in. This adjoined Bogert's 
farm on the south and so much of the meadow as lay east 
of the lot was no doubt included in the description by way 
of confirmation of Bogert's title. He had already pur- 
chased those meadows from Montagne, and it was in regard 
to the small parcel at the southern extremity that he had 
the suit with Von Obhnus above mentioned. As the 
property had been drawn by and alloted to him in 1691, it 
is probable he had already gone into possession before the 
deed was delivered. His controversy with Yon Oblinus 
shows that the parties were very particular about fencing 
in their property. Bogert's wife was the owner of the Hop 
Garden mentioned in the deed. 

See the deed to her from Maria Vermilje, widow of 
Montagne, Appendix B, No. 4. 

By the allotment of 1691, lot No. 26 was set over to Jan 
De Lamater, who at that time owned eight of "The ten 
Lots " situate on Hoorn's Hook, and consisting of 68 acres 
and bounding said lot 25 on the south. The Town's deed 
to him is dated March 21st, 1701. Lot 26 is described as 
" A piece of land lying in the Bay of Hellgate, extending 
from the northwest corner of the end of his lots to a white 
oak tree marked J. D. L. and J. L. B. and so onward hy the 
strand to the end of the meadow, north of a rocky hiU. 

See Appendix B, 7. Also inap showing the lots, 
Appendix I. 

Lot 26 contained ten morgen; it and 25 were composed 
principally of the high rocky ground bordering on and lying 



94 

mainly to the west and south of the meadows which extended 
to the East or Harlem Eiver, the remainder of the meadows 
being included in the land then owned by Bogert and known 
as the Montagne's Point farm and meadows. 

Lot 26 was subsequently included in the well-known farm 
of Samuel Waldron. Resolved Waldron never owned this 
farm, as some suppose ; Samuel Waldron bought it in 1710 
from the heirs of Jan De Lamater. In the deed to him it 
is described as follows : " All that tract of land commonly 
called or known as Hoorn's Hook, aforesaid, with all and 
singular the houses, house lots, lots of land, now in the 
possession of the said Samuel Waldron, as they are herein- 
after named, expressed, bounded and numbered, that is to 
say : on the south, over against Hog Island, alais Forcans 
Island, by the river of Harlem ; on the southwest by lot 
number 2, now in the possession of Margaret Codrington, 
widow ; on the northwest by the patent line of Harlem ; on 
the north by a white oak stump upon the bounds of the 
lands now in the possession of Barent Waldron and John 
Benson ; on the northeast by a rock marked on the north- 
east side thereof L. B., on the southwest by L. M., and so 
goes down to the said river by several marked trees with the 
aforesaid letters, and runs on the north side of a rocky hill, 
and on the south side iy apiece of m,eadow and thence along 
the river to said lot number 2 ; including all points, meadows 
and marshes, within the bounds above mentioned ; contain- 
ing by estimation one hundred and fifteen acres, be the 
same more or less." 

The farm remained intact during the life of Samuel Wal- 
dron. His son William came into possession of it in 1741. 
He set off lots 3 and 4 to his brother Benjamin, and on 
Nov. 29th sold 21^ acres at the southerly side of the farm 
to Jacob Leroy, which subsequently became the country 
seat of Com. Chauncey, but otherwise the farm underwent 
no material change, until it was divided by the heirs of 
William Waldron. The country seats of Astor, Gracia, 
Prime and Ehinelander were included in this farm. 

Eiker's Hist. p. 597. 



95 

The title to the Bogert farm passed to Johannes Benson 
by the following deed: 

DEED. 

Dated Sept. 21, 1706. 
Ackd. Feby. 10th, 1707. 
Eecd. Sept. 21, 1827. 
Liber 226 of Convs., p. 37. 
Cons. £650. 



John Lowesen Bogert and 
Cornelia his wife, 

to 

Johannes Benson. 



It will be noticed that this deed was not recorded until 
one hundred and twenty-one years after its date. The 
recitals in this deed are so interesting and important that 
they are set forth in full for convenience of reference. 

"Whereas, John De La Montague, late of Harlem, afore- 
said yeoman, deceased, by instrument of sale bearing date 
the 18th day of May, Anno Dom. 1671, for the considera- 
tion therein mentioned did bargain and sell unto the said 
John Lowesen Bogert a certain parcel of land and meadows, 
commonly called Montague's Point, and by the Indians or 
natives of the country called Eecowanis, the said land and 
meadows being bounded on the north side with a kill or 
creek commonly called Montague's kill, stretching from the 
East Eiver to a certain fresh run or kill running betwixt 
Montague's Plains and the aforesaid point, bounded on the 
south with a run and kill and a meadow, with hills till it 
meets with the aforesaid fresh run or kill over which runs 
the King's Highway, together with the meadows lying in the 
Bay of Hellgate, which the said Montague had in exchange 
for a Town's lot of meadow : 

" And whereas it so pleased God that the said John De La 
Montague came to die, before all the conditions in the said 
bill of sale were duly to be performed ; And whereas after- 
wards the said John Lowesen Bogert paid the remainder 
of the consideration money in the said Indenture of sale 
mentioned to Maria, the widow and relict of said John De 
La Montague, and the said Maria, by a certain deed or 



96 

instrument in writing bearing date the 30th day of March, 
Anno Dom. 1674, did confirm, transport and make over to 
him, the said John Lowesen Bogert, all the above described 
premises, as by the said instrument, relation being thereto 
had more fully and at large may appear. 

" And whereas the said Maria, widow of said John De 
La Montague, by her certain bill of sale bearing date the 
4th day of November, Anno Dom. 1679, for the considera- 
tions therein mentioned, did grant, bargain and sell to the 
said Cornelia, the wife of the said John Lowesen Bogert, 
being authorized by her said husband to purchase a certain 
Hop Garden, lying at the rear of the land heretofore sold 
to the said John Lowesen Bogert by the said John De La 
Montague and Maria his wife, betwixt the said land and the 
hill thereto adjoining,' with all the right and title thereto 
belonging as by the said bill of sale, relation being thereto 
had to the same may at large appear; And whereas the 
patentees and freeholders of the town of Harlem aforesaid, 
at a town meeting held at the said town on the 11th day of 
December, Anno Dom. 1691, did make choice of Adolph 
Myer, Jan Hendricsen Brevoort, Samuel Waldron and Peter 
Van Oblinus to lay out the undivided lands, 'belonging to the 
said town's patent as by the minute or order thereof being 
entered in the public Eegister of the said town's affairs, 
signed by 16 of the said patentees, freeholders and inhab- 
itants of said town at large may appear. 

" And whereas the said patentees and freeholders, at 
another town meeting, held the 4th day of January, A. D. 
1699, then unanimously consented and it was agreed and 
concluded, that each freeholder should be obliged to pay 
his proportion of all public charges that occurred in said 
town, proportionably to the land they had within the limits 
of the said town, and should likewise have a right to 
receive their just proportion of the undivided lands belong- 
ing to the said town, proportionable to their said quantity 
of lands by them held and enjoyed, as by the order or 
agreement entered likewise in the Public Eegister of said 
own and signed by 22 of the said patentees and freehold- 



97 

ers, relation being had to the same at large, will appear ; 
and whereas, the said John Lowesen Bogert, by virtue of 
the above-recited Instrument of sale stood then lawfully 
seized of the said parcel of land, called Montagne's Point 
and meadows thereto adjoining, whi<5h by compiitation con- 
tains 16 morgen or thereabout, be it more or less ; and also 
the Hop Garden above mentioned : 

" And whereas, the said John Lowesen Bogert, in com- 
pliance with the said order last above mentioned, hath 
ever since, from time to time, paid his share of the taxes 
and town charges, proportionable to the contents of the 
lands which he held and enjoyed, as by the tax rolls of 
book of town rates at large may appear ; 

"And whereas, said Adolph Myer, John Hendricsen 
Brevoort, Samuel Waldron and Peter Van Oblinus, pursu- 
ant to the trust in them reposed, and the authority to them 
given and granted to them as aforesaid, on the 21st of 
Mairch, A. D. 1701, made their return to the Magistrates of 
the town, that among other parcels of land by them laid 
out, a lot for John Lowesen Bogert for right of 16 morgen 
of land, and one lot of land then in his possession, viz.: 
All that certain parcel of land lying in the bought of Hell- 
gate, beginning on the southwest corner of the Hop Gar- 
den, by a iroken 'boom or birch tree, running to a white-oak 
tree which stands by a small swamp marked with the letters 
I. L. B. and the letters I. L. D., towards the river, running 
by a rock marked I. L. B. and I. D. L., and running 
towards the strand or riverside to the end of the meadow 
on the north of a stony hill, as it was then and is now 
known by the name of the lot No. 48 (this lot is really 25, 
and is erroneously called 48 in the deed) and which joins 
to the south side of the above-mentioned land and mead- 
ows of him, the said John Lowesen Bogert, as by the said 
return and the approbation of the overseers and Magis- 
trates of Harlem aforesaid, on the same likewise entered 
in the Public Eegister of said town will appear, relation 
being to the same had, which said lot of land as above 
butted and bounded was likewise confirmed to the said 



98 

Jolin Lowesen Bogert, his heirs and assigns forevei*, by 
conveyance from Joost Oblinus, the surviving patentee or 
joint tenant, in the old patent of Harlem, for the consid- 
erations therein mentioned as by the said conveyance bear- 
ing date day of February, A. D. 1701, at large will 

appear, relation being had to the same and which was 
likewise by Adolph Myer, John Hendricsen Brevoort and 
Samuel Waldron, and Peter Yan Oblinus . . . Indent- 
ure bearing date the 14th day of September, A. D. 1706, 
as trustees for the said town of Harlem, confirmed and 
re-leased to the said John Lowesen Bogert, as by the said 
Indenture relation being thereto had more fully and at 
large will appear. 

" Now this Indenture witnesseth that the said John Low- 
esen Bogert and Cornelia his wife, for and in consideration 
of 1,650 current money of New York, to them well and 
truly in hand paid by the said Johannes Benson before the 
ensealing and delivery hereof, the receipt whereof they do 
hereby acknowledge, and themselves to be herewith fuUy 
satisfied, contented and paid, and thereof and therefrom 
every part and parcel thereof they do freely, fully and 
absolutely acquit, release, exonerate and discharge him, 
the said Johannes Benson, his heirs, executors, adminis- 
trators and assigns, and by these presents have given, 
granted, bargained, sold, conveyed, enfeofft, assured, con- 
firmed, and by these presents give, grant, bargain, sell, con- 
vey, enfeoff, assure, and confirm unto the said Johannes 
Benson, his heirs and assigns all and every, the above 
recited or mentioned j?arcels of land and meadows, as they 
are in the above recitals particularly expressed, butted, 
bounded and granted to him the said John Lowesen Bogert 
and Cornelia his wife, together with all and singular the 
buildings, erections, houses, barns, stables, out-houses, 
orchards, gardens, fences, meadows, marshes, swamps, creeks, 
ponds, waters, water-courses, springs, fountains, privileges, 
improvements, paches, passages, commons and common of 
pasture, wood, underwood, privileges in the undivided 
lands and appurtenances whatsoever to the same granted 



99 

parcels of land and meadows of right belonging and apper- 
taining, and the reTsrsion and reversions, remainder and 
remainders, rents, issues and profits of the same, and all 
and every part and parcel thereof, as also all deeds, writ- 
ings, touching and concerning the premises hereby granted, 
and all the estate, right, title, dower, interest, property, 
possession, claim and demand whatsoever of them, the said 
John Lowesen Bogert and Cornelia his wife, of, in and to 
the same, or all or any part or parcel thereof : 

" To have and to hold all and singular the said parcel of 
lands, meadows, and premises, before in these presents 
granted and recited to him the said Johannes Benson, his 
heirs and assigns forever, yielding and rendering and pay- 
ing yearly and every year, to the Queen's Majestie, her 
heirs and successors, or such as shall be authorized to 
receive the same, his proportion of the quit rent reserved 
in the General Patents of Harlem, according to the quan- 
tity-of land hereby granted." 

Johannes Benson died in 1718, leaving a last will and 
testament dated May 9, 1711, proved May 20, 1718, recorded 
Ijiber 9 of Wills, p. 1, whereby he gives his whole estate to 
his wife, Elizabeth, for life, with remainder to his children. 

On March 28, 1721, his widow and children conveyed 
the same prbperty to his son, Samson Benson. This deed 
does not appear to be recorded. 

See Biker's History of Harlem, p. 485. ' 

Without regard to this missing deed, strictly speaking, 
there is no break in the chain of title, Samson Benson 
being one of the devisees and heirs at law of Johannes. 
Samson Benson went into possession of the property, and 
that was the possession of all the tenants in common, so 
far as the preservation of- the title was concerned, and was 
good against every one, except his co-tenants. 

Washburn's Eeal Property, 5th Ed., Vol. I., p. 689. 
Florence v. Hopkins, 46 N. T., p. 186. 

As again&t the co-tenants the title may also be assumed 



100 



to be good. The fact of the open and exclusive possession 
of Samson Benson for so many years prior to his death ; 
the license of the Town of Harlem to him to biiild the mill- 
dam and run the miU ; the subsequent exclusive possession 
of his widow and children, and their conveyance of the 
whole property to Benjamin Benson, the open and exclu- 
sive occupation of the property by him, and those claiming 
under him, for a period, to the present time of 170 years, 
amount to evidence of original ouster by Samson Benson 
and the disseizin of his co-tenants, in common. 

Washburn's Keal Property, Id., Vol. 1, p. 690-91. 
Florence v. Hopkins, Id., p. 186. 
Also, Culver v. lihodes, 87 N. Y. 353. 

Samson Benson died possessed of the said property. He 
left a last Will and Testament, dated September 12, 1739; it 
was proved January 21, 1741, and recorded the same day in 
the office of the Surrogate in Liber 14, of Wills, p. 157. 
By this Will he gives aU his property, after the death or 
marriage of his wife Mary, to his children ; with a provision, 
that his said dwelling house, farm and mills shall be sold 
within six weeks after the death or marriage of his said 
wife, to any one of his children who might desire to pur- 
chase the same. 

Johannes Benson and Fan- 
nekea his .wife, Adolph 
Benson and Eva his wife, 
Jacob Dickman, Jr., and 
Cateline his wife, aU of 
Harlem, in the County of 
New York, and others, 



To 



Benj amin Benson, of Harlem, 
in the County of New 
York. 
All that certain dwelling house, miUs and farm as it is 



DEED. 

Dated January 28, 1742. 
Eecorded July 19, 1808. 
- Liber 80 of Convs. p. 498. 
Cons. Xl,500. 

Conveys the following de- 
cribed premises: 



101 

now in fence, situate, lying and being in Harlem in tlie 
County and Province of New York, now in the tenor or 
occupation of Mm the said Benjamin Benson, containing 
about two hundred acres, be the same more or less. Also 
a lot, number eighteen in a. third division containing five 
acres, three quarters and two roods, the same containing 
in breadth about nineteen rods and a half, and runs from 
the middle line in Division between the land of Mattje and 
Lawrence Cornelison and some common land South ; fifty- 
three degrees East to the meadows at Harlem Eiver, also 
another lot, number eighteen, in the fourth division, con- 
taining five acres, three quarters and twenty-two rods, being 
in breadth eighteen rods, and runs from a North, North- 
west line, drawn from the [ ] of John 
Dickman's land sixty degrees West between Isaac Dela- 
matre, and some common land to Hudson Biver, which 
premises were purchased by the said Samson Benson from 
Elizabeth Benson and others by a deed bearing date the 
28th day of March, in the year of our Lord, One thousand, 
seven hundred and twenty-one, reference being thereunto 
had wiU more at large appear. Together with all and 
singular the buildings, erections, houses, barns, stables, out 
houses, orchard, gardens, fence, meadows, marshes, swamps, 
creeks, ponds, water, water courses, springs, streams, 
fountains, privileges,improvements, paths, passages,common 
and right of commage, woods, underwood, trees, timber, 
rights, liberties, profits, hereditaments and appurtenances, 
whatsoever to the said, hereby granted and released prem- 
ises belong or in any wise appertaining. 



Benjamin Benson, 

To 
Samson Benson. 



DEED. 

Dated May 2, 1791. 
Acknowledged May 2, 1791. 
Eecorded' August 31, 1791. 
Liber 46, of Convs. p. 558. 
Cons. 5 8., and natural love 
and affection. 



102 

Conveys a tract of land with buildings. Beginning at a 
black oak stump at the corner of land belonging unto 
Lawrence Benson, on the South side of Mill Creek or pond ; 
running southwestly along said Lawrence Benson's land to 
a run of water, and along said rtin of water till it meets the 
Commons ; thence southerly to land formerly belonging to 
Benjamin Waldron, deceased ; then along said Benjamin 
"Waldron's land to the land of William Waldron, deceased ; 
thence easterly along said land to the drowned meadows or 
marsh ; thence northerly and easterly along said meadows 
or marsh, till it comes to the mouth of the above mentioned 
mill creek ; thence westerly along said mill creek or pond 
to the place of beginning, including all the estate of the said 
Senjamin Benson and Susannah, his wife, to the southward 
of said Mill Creek or pond and whereon the said Samson 
Benson now lives or resides. 

It is immaterial whether this deed is construed to run 
along their outer or inner line of the meadows or marshes, 
because it conveys all the estate of the grantor and wife 
to the southward of Mill Creek or pond, and consequently ' 
includes the marshes or meadows. The title of the south- 
erly farm extended to the centre of the creek east of the 
mill-dam. The grantor intended to convey all this farm. 
For further observations in relation to this deed see the 
abstract relating to Harlem Creek. 

Chapter 'K,post. 

Samson Benson, the above-named grantee, died intestate, 
January 31, 1821, in possession of the premises set forth in 
the last deed, leaving him surviving Margaret, the wife of 
Andrew McGown, his only child and heir-at-law. All the 
meadows between Hoorn's Hook and Montague's Point, 
were subsequently known as the McGown Meadows or 
Marshes. They differed in no essential respect from the 
rest of the Harlem Meadows, as is shown by the above 
references in regard to the meadows, and the by maps com- 
piled by Eandall, Dripp, Viele and Colton's Topographical 
Map of 1836. Such Meadows are included under the legal 
definition of dry land. 



103 

Hall on Sea-shores, p. 7, De Jure Maris, Chapter VI, 
supra. 

Even should it be conceded that these marshes were in 
some places, and to a considerable extent, somewhat below 
the level of the mean high tide, it would have no material 
bearing on the question as to the origin of the titles. 
These lands were sufficiently elevated to produce grasses, 
and a vegetation useful to the farmers for the purposes of 
husbandry, and highly prized by them. They clearly came 
within the broad and comprehensive terms of the patents, 
granting, "All the soils, creeks, waters, meadows, pastures 
and marshes." These grants were by express terms included 
in the confirmation patent of Governor Dongan to the 
freeholders and inhabitants of Harlem, of March 7th, 
1686. 

The history of these meadows extend to a period of more 
than two hundred years, and to the time of the earliest 
settlements on that part of the Island. For all that period 
their ownership has been claimed by private persons. The 
title to them has come down undivided and unbroken until 
1834, when Mrs. Margaret McGown, conveyed part of them 
to her son, Samson Benson McGown, by deed recorded in 
Liber 306, page 70. In 1835 she conveyed the remainder 
of the meadows to Edward Sanford, the eminent and gifted 
member of the New York Bar, who perished in the wreck 
of the United States Mail Steamship Arctic of the Collins 
Line, which went down in mid ocean in 1855. The deeds 
to Mr. Sanford were recorded Eeby. 4th, 1835, in Liber 320, 
pp. 484 and 486 of conveyances. These conveyances 
included all the meadows in the bay except the range orig- 
inally belonging to Von Oblinus and which afterwards came 
to be possessed by Abraham Duryea. 

No doubt seems to have been entertained as to the nature 
of these meadows, or that they were included in the grants 
to the Town of Harlem, until after the opening and con- 
struction of the avenues and intersecting streets across 
them, by reason of which the meadows were destroyed and 
disappeared, and gave place to unsightly mud flats. Then 
some members of the Bar, doubtless ignorant of their early 



104 

history and appearance, began to entertain the opinion that 
these lands may have been, and probably were, within the 
limits of the tideway, and consequently that the title to 
them was in the City of New York, by virtue of the Charter 
made by Governor Dongan on April 22d, 1686, granting to 
the City " all the waste vacant, unpatented and unappro- 
priated lands in said City and on Manhattan Island extend- 
ing to low water mark and not heretofore granted by any 
former Governor." 

This charter was a month and a half subsequent to the 
confirmation patent of Governor Dongan to the freeholders 
and inhabitants of Harlem. The grant to the City of New 
York, is only of the unappropriated and unpatented lands. 
It was expressly limited to lands " not heretofore granted by 
any former Governor." The Charter did not disturb the 
rights already acquired under the Harlem patents or in any 
other way. 

There are two answers to this objection: The first is 
that, by the common law, the salt marshes are not part of 
the seashore or strand or of the waste lands. They are 
prima facie not part of the vacant lands, because such 
lands, by the same law belong to the subject and even the 
king can not obtain title to them, except by prescription, 
grant, forfeiture, escheat, &c. 

Bristow V. Cormican, (3 App. Cas. 641, supra.) 

So that without regard to the previous Harlem patents, 
or the reservation of previous grants in the Dongan Char- 
ter by legal presumption, theSe lands would not pass under 
that charter; because, as a matter of fact, the Harlsm 
marshes were in actual possession of the freeholders and 
inhabitants of Harlem before the advent of Governor Nich- 
oUs, and that he recognized their claims to the whole terri- 
tory of Harlem and the marshes generally. This appears 
from the language of the patent, namely, " Whereas there is 
a certain Town or Village commonly called or known by the 
name of New Harlem . . . now in the tenure or occupu- 
tion of several freeholders and inhabitants." The words 
tenure or occupation, are a strong phrase, under the circum- 



105 

stances. This being a country held by discovery and Har- 
lem being but recently settled, title by occupancy, might 
with propriety imply a grant. 

Governor NichoU's decision in respect to John Archer's 
intrusion upon some of the marshes in the Harlem River 
(supra) acknowledges the pre-existing title of the inhabi- 
tants of Harlem to the marsh lands. 

De Jure Maris, Ch. 6, supra, and 
Hall's Seashores, p. 10, supra. 

The second answer is as above stated, namely, the 
marshes had been already granted by the Harlem patents. 

In considering this question, of the supposed claim under 
the Dongan Charter, it should not be forgotten that the 
Corporation of New York has always been very jealous in 
respect to its territorial rights, and._ especially so in regard 
to its claim to the land between high and low water and its 
jurisdiction along the shore front of the entire Island, nor 
that it has generally had the benefit of the advice and guid- 
ance in legal questions of experienced and learned lawyers, 
while in matters relating to hydrography and topography 
it has had the service of able and experienced engineers 
and surveyors. 

It is altogether improbable that a claim to so large and 
important a piece of shore front should have remained 
unknown and unenforced by the City officials for so many 
generations. The City has never asserted any claim to 
these marshes, nor to the intersecting creeks, but on the 
contrary it has by its acts in relation to street improve- 
ments, taxation, and the water front of the City, shown that 
it does not own, or claim to own the ground. In fact it 
has, in effect, through its duly constituted legal advisers, 
expressly disclaimed having any title or claim of title, not 
only to the McGown marshes, but also to any portion of 
the original common lands of Manhattan Island, northerly 
of the division line between the City of New York and the 
town of Harlem, as established by the acts of the Colonial 
Assembly and Council of 1772, 1774 and 1775. 

Yide, the opinion of the Hon. Richard O'Gorman, as 



106 

Counsel to the Corporation of the City of New York, fur- 
nished to the Comptroller under date of August 1st, 1870, 
and the opinion of the Hon. William C. Whitney, likewise 
furnished as Corporation Counsel, to the Comptroller, 
under date of November 10th, 1880. These opinions are 
on file in the office of the Law Department of the City. 
Authentic copies are given in the Appendix under the let- 
ters D and E. 

Conclusion. 

From the deeds, Harlem Patents, and historic and other 
evidence available, and a due consideration of the law 
applicable to such lands, it ought to be apparent to every 
unprejudiced mind, that the doubts in regard to the titles 
to these meadows, with the intersecting creeks, are wholly 
groundless, and they could have been dispelled before tak- 
ing shape by an impartial and proper investigation of the 
subject. 

The meadows or marshes in the bay between Hoorn's 
Hook and Montague's Point were a distinct formation of 
land at the time of the first settlements of Harlem. Their 
extent and outlines were then substantially the same as 
when the greater part of them came to be possessed by 
Margaret McGown in 1821. The title, as derived through 
the Montagues, John Louwe Bogert, Joost Von Oblinus 
and John De La Mater and the Town of Harlem, appears 
to be good and valid. It is one of the most ancient, and 
best authenticated titles on the Manhattan Island. 



107 



CHAPTEE X. 

The Harlem Creek, tbe Harlem Mill Fond, and Van 
Keulen's Hook. 

PART FIRST. 

Of all the numerous creeks which penetrated the Island 
of Manhattan, one of the largest, most important, and most 
interesting, was the kill Eechawanes, subsequently known 
in the annals of Harlem as Montague's Kill, Benson's 
Creek, and Harlem Creek. It divided the farms of the two 
first landed proprietors and settlers at Harlem, Hendrick 
De Forest and Jacob Van Curler, the close friend of Direc- 
tor Wouter Van Twiller. The kill was the outlet of three 
fresh-water streams. The principal one had its rise at 
Claremont near the Hudson and not far from the spot now 
occupied by the tomb of General Grant. The second rose 
in the high hills west of the Ninth Avenue, near 108th 
Street, and the third issued from a spring called "The 
Fountain," in the elevated ground now enclosed in the 
northerly part of Central Park. The last stream formed 
the division line between Montague's Flat and Montague's 
Point. 

The spring is still flowing and may be seen not far from 
the place where McGown's Pass led down to Harlem Plains, 
in the bridle-path of Central Park, near the junction of 
the former lines of Sixth Avenue and 104th Street. It 
supplies the water for a drinking fountain at which eques- 
trians may water their horses. The creek attained its 
importance from the fact that the Harlem Mill was built 
near its margin, and it supplied the power to run the mill. 

The following historical facts are compiled mainly from 
Eiker's History of Harlem. 

The project of erecting a mill upon this creek was under 
discussion in 1661, at the time the Montague family peti- 
tioned the Director and Council for permission to establish 
a settlement upon their deserted farm Vredendal. The 



108 

work was deferred until after the occupation of the English. 
Governor McoUs was accompanied in his expedition by 
Thomas Delavall, a captain in the British army, and one of 
Nicolls' suite. He was made Treasurer of the Colony, and 
subsequently Mayor of New York, and was the first person 
named in the second NicoUs patent of 1667. He became 
one of the largest landed proprietors in Harlem. In Jan- 
uary, 1667, he made a proposal to build the mill if the 
inhabitants of the town would construct the dam. He 
requested leave to erect a stone house on the land adjoining 
his land (on Van Keulen's Hook) near the mill, and to for- 
tify it for a place of refuge for the villagers in time of need. 
He also desired permission to run a fence straight from 
the fence now standing to the stone bridge upon Yan Keu- 
len's Hook, and to use the land and meadows so enclosed. 
The inhabitants agreed to make the dam for the mill, pro- 
vided they might enjoy the benefits according to custom. 
They also agreed to the erection of the house near the mill 
and the setting off the land and meadows mentioned in 
the request. After much labor the mill-dam was finished 
during 1667. It crossed the creek just west of the present 
Third Avenue. Near its northern end Delavall built the 
mill. 

See Appendix B, No. 8. 

The land which Delavall took for mill purposes adjoined 
his land. It belonged to the town, and formed the north- 
ern boundary of the mill-pond. It was afterwards known 
as the Mill Camp. 

The mill is next mentioned in the Harlem records under 
the date of June 8, 1669. The mill-dam lately " impaired 
by breach of water " needed prompt attention. Captain 
Delavall was then abroad, and Governor Lovelace, being 
informed of the accident, ordered " John Askew and Peter 
Van Nest, of Flatlands, to go to Harlem forthwith, with 
their workmen, and use their best skill and endeavour in 
repairing the dam, and whatever else is required about the 

Mm." 

On August 8, 1676, Captain Delavall conveyed to his son- 



109 

in-law, James Carteret and Frances his wife, " All that 
messuage, tenement and farm " which he (Delavall) for- 
merly bought of one Moseman, "situate, lying, and being 
in the town of Harlem, within or upon a certain island 
called or known by the name of Manhattan Island ; and all 
that water mill which the said Thomas Delavall built or 
caused to be built, situate, lying, and being in and upon 
Manhattan Island aforesaid, together with all the lands 
and meadows and pastures to the said mill belonging or 
adjoining, or therewithal usually held, used, occupied and 
enjoyed." 

The lot bought by Delavall of Moseman, referred to in 
this deed, was No. 22 on Van Keulen's Hook. 

See Map, Appendix I. 

Van Keulen's Hook was laid out by the authorities of 
the town in 1661, and divided into 22 lots of equal breadth, 
all running from the river or creek to the northerly line, 
and designed to contain three morgen (i. e., six acres) each. 
As the lines were of unequal length, the contents were une- 
qual. To remedy this a new survey was made in 1676, by 
which some of the lots were lessened in width, and the con- 
tents equalized. 

See Map annexed to Biker's Hist, of Harlem. 

No. 1 was the most easterly lot, and No. 22 the most 
westerly. Lot 22 was originally allotted to John Le Roy, 
who sold it to Moseman, who conveyed it to Delavall. 

See Mr. James Eiker's statement. Appendix B, 10. 

The town subsequently set off another lot from the town 
lands adjoining 22 on the west, and conveyed it to Delavall 
as No. 23. This was done to take the place of No. 21, 
which Delavall claimed. These two lots, 22 and 23, embrac- 
' ing about 12 acres, were included in the above deed by 
DelavaU to Carteret and wife. They adjoined the Mill 
Camp on the east. Delavall built the mill on lot 22. 

Captain James Carteret and his wife Frances died prior 



110 

to August 11, 1705. They left a sou, George, who died 
without issue, and a daughter, Elizabeth, who was married 
in the Island of Jersey, November 11, 1699, to Philip Pipon 
of Noiremont. On August 11, 1705, Pipon and wife, then 
residing in London, empowered Thomas Newton, of Bos- 
ton, N. B., to enter upon and take "legal possession of all 
their lands upon Manhattan Island and Little Barnes 
Island, or elsewhere in America, whereof she, Elizabeth (or 
he, Pipon in her right) is seized, interested, or entitled as 
granddaughter, or heir of Thomas Delavall, deceased, or as 
daughter or heir of her father or mother, James Carteret, 
Esq., and Frances W. his wife, or either of them, or as sur- 
vivor or heir of George Carteret, Esq.; also authorizing 
said Newton to lease said premises for a term not exceed- 
ing five years." 

"What Newton did, if anything, is not known. Mrs. 
Pipon died in Jersey in November, 1720, leaving her sur- 
viving, her husband Philip, and two sons, James and Elias. 
The father, Philip, subsequently entailed upon his son 
James and his heirs male his estate in Jersey, and upon 
his son Elias and his heirs male, his property in America. 
Elias, being 24 years of age, came to New York to look 
after his possessions. He built upon Little Parent's Island, 
which he re-named Belle Isle, and married Blanche, daugh- 
ter of John Lafons. His property being mainly unpro- 
ductive, he petitioned the Colonial Assembly to remove the 
entail and empower him to sell a part of his land in order 
that he might improve the rest. 

Notice of his intentions were publicly read in the church 
at Harlem, by the parish clerk, on the three succceeding 
Sundays, beginning September 27, 1730, and duly certified 
by the Governor and Council, October 15 following. The 
Application was not acted upon during that session of the 
Assembly, nor does it appear what became of it. By 
releases executed in the Island of Jersey May 18, 19, 1732, 
James released to Elias all his interest in the lands in Har- 
lem, and Elias released to James all his interest in the 
lands in Jersey. 



Ill 

Elias Pipon, having become insolvent about the latter 
part of 1735, executed a deed in trust for the benefit of his 
creditors to Simon Johnson, John Auboyneau and James 
Faviere, his wife joining in it. 

Pipon and two of the assignees, Auboyneau and Faviere, 
having died, the execution of the trust devolved on the 
survivor, Simon Johnson, who conveyed the two lots, 22 
and 23 on Van Keulen's Hook, to Benjamin Benson, as fol- 
lows. 



Simon Johnson 

To 

Benjamin Benson. 



Warrantee Deed. 
Dated Sept. 25th, 1747. 
Consideration £171, current 
money. 



Conveys, "All that piece of land, situate lying and being 
within the Township of New Harlem, in the out ward of 
the City of New York, aforesaid, upon Van Koulen's Hook, 
known or called by the name of Delavall's Land contiguous 
or adjourning westerly to a certain parcel of land, com- 
monly called the Mill Camp, easterly to the land of Dirck 
Benson, southerly to Harlem Mill Creek, and northerly to 
the road or highway, if it does so far extend, containing six 
morgen, be it more or less, together with all and singular 
the fences, meadows, lands, waters, water courses, profits, 
emoluments, advantages, easements, ways, passages, hered- 
itaments and appurtenances, etc." This description carried 
the title to the center of this creek, and included probably 
two-fifths of the space between the dam and First Avenue. 
This deed was put in evidence by the plaintiff in Roberts v. 
Baumgarten et al (51 W. Y. Superior Court). 

See printed case on appeal. 

Owing to the disuse of the mill by Delavall and his 
family, the privilege of using the Mill Camp for mill pur- 
poses lapsed. This led to a grant being made by the town 
on October 23d, 1738, to Samson Benson, of similar privi- 
leges to those granted to Delavall in 1667. Samson Benson 
was the oldest son of Johannes Benson, who purchased 



112 

Montagne's Point farm from Bogert, and was now the owner 
of that farm. 

He was authorized to place the mill on the Mill Camp, 
with a dam wherever it might suit him best. He built the 
mill on his farm on the southerly side of the stream, and 
had scarcely finished it in 1740 when he died. His son 
Benjamin having purchased the farm from the widow and 
children succeeded to the mill right. Being owner of lots 
22 and 23 Van Keulen's Hook, he made an application to 
the Town for the purchase of the Mill Camp, the same was 
awarded to him and the price was fixed by Lewis Morris, 
Abraham Yan Wyck and Abraham Lefferts, Arbitrators, 
appointed by the town. The consideration money was 
£160 current money. The award was made May 30th, 
1758, by this description : 

" Beginning at the fence of the said Benjamin Benson, by 
the Mill Creek and runs along his fence northwardly to 
Harlem road, about thirty one chains, thence along said 
road twenty three chains and one half, which is three chains 
beyond a large oak tree near Van Breemen's house, thence 
south, ten degrees east to said Mill Creek, thence along 
said creek to the place where it began." 

See the instrument in full. Appendix B. 12 

The description " by the Mill Creek " and " to the said 
Mill Creek, thence along said creek," carries the grant to 
the centre of the creek. 

See the law as to Tidal Creeks, ante. 

The northerly half of that part of the creek was owned by 
the Town of Harlem by virtue of the patents. The title to 
the southerly half of the Mill Pond was then owned by 
Benjamin Benson, his title being derived through the deed 
of the Town of Harlem to John Montague the younger ; and 
of the Director and Council of New Netherland to John 
Montague, the elder, dated May 9th, 1647, conveying Mon- 
tagne's Point. It is covered by the following description : 

" A piece of land situate on the Island of Manhattans, 



113 

. . . Ijinghetwixi two hiUs and aMW, and apoint named 
Hecehwanes, stretching betwixt two Mils." This is equivalent 
to saying, bounded by two kills, and carries the title' to the 
centre of the streams. 

See this deed. Appendix B, 2. 
Also Map Appendix I. 

This deed conveys the land on both sides of the Southerly 
creek, which divides the meadows attached to Montague's 
Point, and the meadows in the Bay of Hellgate, and conse- 
quently includes all of the creek. The words " bounded on 
the Northerly side by a creek " carry it to the centre. 

Thus Benjamin Benson became seized in fee simple to 
the title to the whole of the bed of the Mill Pond, and to 
the southerly half of the Mill Creek, easterly of the Mill 
dam, and to as much of the northerly half of that creek as 
lay opposite to the lots conveyed to him by Simon John- 
son, assuming that Johnson owned that part of the creek. 

See cases, supra a.nd post. 

During the Eevolutionary War, the old mill on the 
southerly side of the creek was burnt. After the war Ben- 
jamin Benson built a new mill on his farm on the northerly 
side of the creek and also a substantial stone dwelling. In ■ 
1827, when the Harlem Canal was begun, the mill, a three- 
story frame building was taken down, but the dwelling 
house remained until 1865. 

In 1748 Benjamin Benson acquired the title to 35 acres 
on Van Keulen's Hook from the estate of his grandfather, 
Adolph Myer, and on December 30th, 1755, and May 11th, 
1764, he purchased two more lots on that tract from John 
Benson, son of Dirck Benson. The land lay together, 
adjoining his lots 22 and 23, and was bounded on the east 
by the farm of Peter Bussing. The property thus acquired 
on Van Keulen's Hook extended from the dam to First 
Avenue on the northerly side of Mill Creek, and with the 
Mill Camp constituted the greater part, if not the whole of 
Benson's farm on the north side of the creek. 

Biker's Hist. 258, 262, 489, 591 and 600. 



114 

Benjamin Benson conveyed this property to Ms son Peter 
B., as follows : 



Benjamin Benson 

To 
Peter B. Benson. 



DEED. 

Dated Apl. 2, 1791. 
-Eecd. Mayl2, 1797. 
Liber 54 Conv. p. 321. 
Cons. 5 shillings. 



"All that certain messuage or tenement, heing all my 
estate to the North of the Mill Pond between the fence of tlie wid- 
ow Storm, and the Road leading to Harlem, including the 
Mill Stream and Mill and Mill Pond with all its privileges 
and appurtenances, and to shut the Mill dam at the south side 
of the said Mill Pond where it now lays ; and all and singu- 
lar the houses, barns, buildings, water, water courses &c." 

This deed and the one made by Benjamin Benson to his 
son Samson, of the farm on the southerly side of Harlem 
or Mill Creek, should be considered together, and with the 
surrounding circumstances, in order to arrive at a correct 
conclusion as to the intention of the grantor. Preliminarily 
it wiU be assumed that the center of Mill Creek and of Mill 
Pond originally formed the boundary line between the two 
farms ; that subsequently the grantor included the whole of 
the Mill Pond in the northerly farm, and that at the time 
of these conveyances the farms were divided by the center 
of Mill Creek up to the dam, and by the southerly side of 
the Mill Pond west of the dam. 

The deed made by Benjamin Benson to his son Samson, 
dated May 2, 1791, conveys the southerly farm. It was also 
a gift to his son. Although it bears date one month later 
than the deed to Peter, it was acknowledged on the day of 
its date and recorded August 31, 1791, whereas the deed to 
Peter was not acknowledged until May 10th, or eight days 
after, and was not recorded until May 12th, 1797, or more 
than five years after the deed to Samson, who was already 
in possession of the farm before receiving his deed. Pre- 
sumably the deed to Samson was delivered first. But it is 



115 

evident that the father's acts were intended to be concur- 
rent, and the sons to be treated impartially. 

Peter was to have the northerly farm, with all its improve- 
ments and appurtenances, and the whole of the Mill Pond, 
and Samson was to have the southerly farm and all that 
appertained to it. 

The language in the deed to Peter, conveying " all that 
certain messuage or tenement heing all my estate to the north- 
ward of the mill pond" shows that he intended to convey the 
entire farm on which he lived, and if that included the 
northerly half of the Mill Creek opposite, the title to it 
passed under the deed. In like manner the words at the 
end of the description in the deed to Samson Benson 
("including all the estate of the said Benjamin Benson and 
Susannah, his wife, to the southward of said Mill Creek 
or pond"), would include the entire property southward 
of the center of the creek or division line between the two 
farms. 

The description in the deed to Samson Benson is as fol- 
lows : 

" All that certain tract or farm, piece or parcel of land 
lying and being in the said town of Harlem and bounded 
as follows, viz.: Beginning at an oak stump at the corner of 
land belonging unto Lawrence Benson, on the South side 
of Mill creek or pond, running southwesterly along said 
Lawrence Benson's land to a run of water, and along said 
run of water, till it meets the commons ; thence southerly 
to land formerly belonging to Benjamin Waldron, deceased, 
thence along said Benjamin Waldron's land to the land of 
William Waldron, deceased ; thence easterly along said land 
to the drowned meadows or marsh, thence northerly and 
easterly along said meadows or marshes till it comes to the 
mouth of the above mentioned Mill Creek ; thence westerly 
along said Mill Creek or pond to the place of beginning, 
including all the estate of the said Benjamin Benson and 
Susannah his wife to the southward of said Mill Creek or 
pond and whereon the said Samson Benson now lives or 



116 

This description, by metes and bounds, gives no meas- 
urements or specific distances. The starting point is on 
the bank of the creek, which also is the mill pond. The 
last two courses are to the mouth of the creek arid westerly 
along the creek or pond to the place of beginning. This carries 
the title to the center of the creek and pond. 

In Luce v. Carley, 24 Wendell, p. 453, Cowen, Judge, 
says : " It is never thought that monuments mentioned in 
such a deed as occupying the baink of a river are meant by 
the parties to stand on the precise water line at its high or 
low mark. They are used rather to fix the termini of the 
line which is described as following the sinuosities of the 
stream, leaving the law to say, as the line happens to be 
above or below tide water, whether the one half of the river 
shall be included, with the islands which lie on the side of 
the channel nearest to the line described. Where the grant 
is so framed as to touch the water of the river and the par- 
ties do not expressly except the river, if it be above tide, 
one-half of the bed of the stream is included by construc- 
tion of law. If the parties meant to exclude it, they should 
do so by express exception. 

"In the Seneca Nation, etc., v. Knight, 25 N. Y. 498, the 
boundary was described as beginning at a post on the north 
bank of the Cattaraugus Creek, and thence ran, by various 
courses and distances, to a post on the north bank of the 
creek, thence down the same, and along the several mean- 
ders thereof, to the place of beginning, and it was held that 
the grant included the bed of the stream to the center. The 
Court approved the remark of Chancellor Walworth, in Child 
V. Starr, that monuments in such cases are only referred to 
as giving the directions of the lines to the riVer, or stream, 
and not as restricting the boundary on the river. The 
Court also remarked that in case of boundary on the river, 
monuments are never located in fact or in description, in 
the channel of a river, and that monuments were necessary 
in order to mark the places of intersection with the stream. 

The language of Chancellor Walworth* in Child v. Starr, 
4 Hill, pp. 373, 375, is, " Eunning to a monument standing 
on the bank, and from thence running hy the river or along 



117 

the river, does not restrict the grant to tlie bank of the 
stream ; for the monuments in such cases are only referred 
to as giving the directions of the line to the river, and not 
as restricting the boundaries on the river." 

See also opinion, Bradish, President, in the case of 
Child v. StatT, and the authorities under the head of 
Tidal Creeks. 

See also opinion of Kedfield, J., in Buck v. Squires (22 
Vt. 484, 494), which is a most able and comprehen- 
sive statement of the law of boundaries. 

See also Rogers v. Jones (1 Wend. 238), which shows 
that a grant on salt water is not limited to the high 
water line. 

If the deed to Samson Benson be interpreted by itself it 
will include the southerly half of the Mill Creek and the 
southerly half of the Mill Pond ; but taking the deed in 
connection with the concurrent deed to Peter B. Benson, 
and the evident intention of the grantor, the southerly half 
of the Mill Pond would be excluded, as the whole of the 
pond was expressly granted to Peter in his deed. The 
boundary line between the two farms would then be the 
center of the Mill Creek and the southerly line of the Mill 
Pond. The intention of the grantor was to dispose of the 
two farms in their entirety and reserve no right in the MiU 
Creek. 

See criticism of this deed, in Chap. IX, ante. 
Also Washburn's Eeal Property, 5th Ed. Vol. 3, pp. 
421 to 438. 

This interpretation of the deeds of Benjamin Benson to 
his sons, Samson and Peter B., was not brought to the 
attention of the Court either on the trial or on the appeals, 
in Robert v. Baumgarten, supra. The opinion of Sedgwick, 
Ch. J., and that of Gray, J., both hold that under the deed 
from Benjamin Bflnson to Peter B. Benson, his son, no title 
was acquired to any part of the Mill Creek east of the mill- 
dam. These opinions were put upon the twofold ground : 



118 

First, that the description in the deed did not include the 
property in controversy ; and second, that part of the land 
claimed, being below high water mark in the creek, the pre- 
sumption was that the title was in the people or the State 
representing them. But, as has been remarked above, 
under the subject of Tidal Creeks, the question of the title 
to Harlem Mill Creek was not before the Court, nor was 
the subject of the title of Benjamin Benson's title to it ; 
neither was there any presentation of the law relating to 
small tidal streams. If that case had been fully and prop- 
erly stated and discussed, it is not unreasonable to assume 
that the language of those decisions would have been quite 
different. The result of that controversy would have been 
the same, because the title of Peter B. Benson, under the 
most favorable construction of his deed, did not include 
any part of the bed of Mill Creek south of the centre line 
of it. But the decisions would not, by an erroneous appli- 
cation or the supposed common law, have cast doubts upon 
the title not only of Harlem Mill Creek, but also upon the 
titles to all small tidal streams, and upon the lands formerly 
occupied by such streams, where they have been filled in 
and obliterated. It is to be hoped that an opportunity may 
be presented to the Court of Appeals, at an early day, to 
examine the law relating to small tidal streams not navi- 
gable " for any useful purpose connected with trade, travel, 
or commerce ;" and that the subject may be so fully and 
properly presented that the question may be finally deter- 
mined and set at rest. 

Peter (B.) Benson died in 1802, leaving a last will and 
testament dated June 27, 1801, proved before the Surrogate 
of the City and County of New York, January 3, 1803, and 
recorded in Liber 44 of Wills, p. 239, whereby he gives and 
devises unto his son Benjamin P. Benson, his heirs and 
assigns, " all that my land on which I now live (excepting 
eight acres) situate, lying and being in the township of 
Harlem, on the south side of the highway, extending to the 
East River, together with the mill and stream now leased 
to Samuel Denny, with all the building and improvements 



119 

whatsoever. I also give and devise to my said son one- 
half of the wood-land and one-half of the salt meadows 
lying on the north side of the Post Eoad, to hold to him the 
said Benjamin P. Benson, his heirs and assigns forever. 

"Item. I give and devise unto my daughter Wilhelmina 
Benson, her heirs and assigns, all the tillable land on the 
north side of the Post Road, together with the other half 
of the wood-land and salt meadow, with all the buildings 
and improvements, as also eight acres on the south side of 
the Bridge Road." Wilhelmina Benson afterwards married 
Peter Van Arsdale. 

Benjamin P. Benson, Peter Van Arsdale and Wilhelmina 
his wife, made partition of the property devised to them by 
Peter B. Benson, as follows : 



Benjamin P. Benson, son of 
Peter Benson, deceased, of 
the first part, 

and 

Peter Van Arsdale and Wil- 
helmina his wife, daughter 
of said Peter Benson, de- 
ceased, of the second part. 



PARTITION DEED. 

Dated Apl. 22d, 1818. 
" Ackd. do. 
Reed. do. 
Liber 127 of Conv. p. 302. 



Conveys to parties of the second part : " All that certain 
piece or parcel of ground situate, lying and being in the 
town of Harlem between' the Old Harlem Road and the 
Harlem Bridge Road, and beginning at the north side of 
the Bridge Road at the westerly line of the property belong- 
ing to Luke Kip, and running thence along the said road 
south 46°, west 28 chains, 23 links ; thence north 6° 30', 
east 7 chains and 1^ links ; thence south 63°, west 18 
chains, 10 links; thence south 35° 45", east 2 chains; 
thence south 63°, west 4 chains and 30 links to Harlem 
Creek ; thence along the creek as it runs and turns, to the 
Old Harlem Road ; thence along the Old Harlem Road as 
it now runs, to the line of the land belonging to Luke Kip ; 
thence along said Kip's line to the place of beginning, 



120 

containing 27 acres. And also all that other piece or par- 
cel of land situate between the Harlem Bridge Eoad and 
the Third Avenue, beginning at a point on the northwest- 
erly side of the Third Avenue where the northeasterly line 
of 113th Street intersects said Avenue, running thence 
along the Avenue north 33° 30', east 5 chains 72 links' to 
land of James Roosevelt ; thence along the land of James 
Roosevelt 9°, west 9 chains 70 links to the Harlem Eoad ; 
thence along the said road 46°, north 12 chains and 96 links 
to the middle fence; thence along the middle fence south 
6° 45', east 27 links to the northeasterly side of 113th 
Street, and thence along the line of the said street south 
56° 30', east 9 chains 13 links to place of beginning. 

" The parties of the second part convey to the party of 
the first part : " All that certain piece or parcel of ground 
situate etc., at Harlem, lying on the southerly side of the 
Harlem Bridge Road, and extending thence to the East 
River, together with the Mill and stream. The said land is 
■ bounded on the east by land belonging to George Bradish, 
James Roosevelt, the heirs of Flamen Bull and John F. 
Jackson, being all the land of the said Peter Benson south 
of the said Harlem Bridge Road, except eight acres herein- 
before described and released by the said party of the first 
part, unto the said parties of the second part. 

"And also all that piece of woodland and salt meadow 
lying on the north side of Harlem Bridge Road, beginning 
at the Harlem Creek, and running thence along the said 
road north 46°, east 16 chains and 14 links ; thence north 6° 
and 31', east 7 chains 1^ links ; thence south 35° and 45', 
east 2 chains ; thence south 63°, west 4 chains and 30 links 
to Harlem Creek, thence along the creek as it winds and 
turns to the place of beginning." 



Peter Van Arsdale and Wil- 
helmina his wife. 

To 

Benjamin L. Benson. 



W. DEED, F. C. 

Dated July 6th, 1825. 
- Reed. Nov. 3d, 1825. 
L. 193 of Conv. p., 480. 
Cons. $13,500. 



121 



Conveys some promises set off to the parties of the first 
part in the above mentioned partition deed. 



Benjamin P. Benson and 
Mary Ann his wife, 

To 

Benjamin L. Benson. 



W. DEED, F. C. 

Dated July 10th, 1825. 
Aokd. Oct. 13th, 1825. 
Eecd. Nov. 3d, 1825. 
L. 193 of Conv., p. 474. 
Cons. $30,000. 



Conveys the premises set apart to Benjamin P. Benson 
by the above mentioned partition deed. 



Benjamin P. Benson and 
Mary Ann, his wife. 

To 

Benjamin L. Benson. 



DEED, B & S. 

Dated July 10th, 1825. 
Ackd. 16 March, 1826. 
Eecd. 25 March, 1826. 
L. 200 of Conv., p. 546. 
Cons. $10.00. 



Conveys " All that certain piece of ground situate, lying 
and being in the twelfth ward of the City of New York, 
being part and parcel of the farm of Peter Benson, deceased, 
and known as the Harlem Bridge Road, extending from the 
Harlem Mill Pond or Creek to the northermost bounds of 
the farm of the said Peter Benson deceased. 

Also the mill, the mill stream or pond attached to the 
mill ; the ground, marsh or marshes covered by the said 
mill stream and the water courses and privileges, rights and 
appurtenances belonging thereto ; also all the low lands, 
salt meadows, flats and marshes in front of and adjoining 
to the uplands which belonged to Peter Benson in his life- 
time, situate along said creek." 



122 



Peter Van Arsdale and Wil- 
helmina, his wife, 

To 

Benjamin L. Benson. 



DEED, B & S. 

Dated July 6tli, 1825. 
Ackd. Sept. 12, 1825. 
Eecd. Nov. 3d, 1825. 
Liber 193, Conv., p. 483. 
Cons. $1. 



ConYeys, "All the low lands, meadows, marshes, flats 
covered with water, waters, water courses, lying adjacent to 
lands in Harlem formerly owned by Peter Benson of Har- 
lem, deceased." 



Benjamin L. Benson, 

To 
Harriet M. Wiswall. 



DEED, B & S. 

Dated Sept. 15, 1835. 
Ackd. Oct. 12, 1835. 
Eec. 17th Dec, 1835. 
Lib. 343 of Conv., p. 461. 
Cons. $1. 



Conveys with other property, " also all the lots and parts 
of lots of land in the ward aforesaid, which remains of the 
lands purchased by me of Peter B. Benson and Dr. Van 
Arsdale, laid down on a map made by J. F. Bridges, City 
Surveyor, dated 1825, filed in the Register's office, entitled 
' Map of the Third Avenue Tract, formerly belonging to P. 
B. Benson and Dr. Van Arsdale.' " 



Benjamin L. Benson, 

To 
Harriet M. Wiswall. 

Conveys with other property. 



DEED. 

Dated June % 1835. 

. Ackd. June 8th, 1835. 
Eecd. June 10th, 1835. 
Liber 333 of of Conv., p. 258. 
Cons.ll, 



123 

"All those certain pieces, or parcels of land, marsh, or 
meadow, partly covered by water, situate, lying and being 
in the twelfth ward of the City of New York, laid down on 
said map, but not numbered, and lying between the First and 
Fifth Avenues and south of lOTntA Street as far as the said 
Fifth Avenue tract extends." 

These deeds include the whole of the Mill Pond. It will 
be observed that the last recited deed purports to convey 
" all of the land of the party of the first part, ' lying between 
the First and the Fifth Avenues, and south of 107th Street.' 
But it is qualified by the words ' as far as the said Fifth 
Avenue tract extends'." As the grantor had no land south 
of 107 Street and between the First and Third Avenues, he 
should have limited the boundary to between the Mill dam 
and Fifth Avenue. 

Neither Benjamin L. Benson nor Peter B. Benson, 
through whom he derived his title to the Mill Pond, had 
any land east of the Mill dam and south of 107th Street. 

The deed made by Benjamin Benson to his son Peter B. 
Benson is expressly limited, to "all my estate on the north side 
of the Mill Pond " and it includes " the Mill Stream, Mill 
and Mill Pond." His clearly expressed intention was to 
give his son Peter the farm on which he resided, with all 
its belongings, and nothing more. It had no reference to 
Mill Creek or Harlem Creek below the dam. The Mill, 
Mill Stream and Mill Pond had always belonged to that 
farm from the time he built his dwelling on the north side 
of the Creek. The words in the deed to Peter B. Benson, 
" including the mill stream, mill and mill pond," refer to 
that part of the creek enclosed by the dam. This was not 
simply a tide mill, it had also the supply of the fresh water 
streams, of which Harlem Creek was the outlet. The creek 
behind the dam was the MiU stream. There was a branch 
on the northerly side of this part of the creek, about three 
or four hundred feet west of the dam ; it ran about east, 
being divided by a small island, and a short distance beyond 
widened into a pond of about an acre. The end of the 
pond was within a few feet of a cove that led up from the 
northerly side of the mill creek, between Third and Second 



124 

Avenues. A canal was cut to connect this branch and pond 
with the cove. This formed the mill race. The mill was 
placed here, the water supplying the mill passed through 
this branch from the pond, and when it left the mill it 
passed into the cove and so through the creek to the Har- 
lem Eiver. This branch stream which fed the mill, was no 
doubt the Mill stream referred to in the deed from Benja- 
min to Peter B. Benson. The deed is then consistent with 
the grantor's estate on the northerly side of Mill Pond, 
namely, the farm, together with mill-stream, mill and mill 
pond. 

See map of the estate of Margaret McGown, made by 

Jno. B. Holmes. 
Also the map annexed to the report of the Commission 

for opening Third Avenue, filed in 1814, which shows 

this "Mill Stream." 



CHAPTEE XI. 

The Harlem Creek, The Harlem Mill Pond and Van 
Keulen's Hook. 

PART SECOND. ' 

After the erection of the mill and the construction of the 
dam, by which the creek was divided into two parts of 
nearly equal length, the part east of the Mill dam ultimately 
became generally known as Harlem Mill Creek or Benson's 
Creek, and the division west of the dam as the Mill Pond. 

It has been shown that the deed from the magistrates and 
freeholders of Harlem to Montague, of Montague's Point, 
carried the title to the southerly half of the creek for its 
whole length to the run of fresh water, and included the 
southerly half of the Mill Pond ; that the deed of the town 
to Benjamin Benson, of the Mill Camp, included the north- 
erly half of the Mill Pond, and that the deeds of the town 



125 

for the allotments on Van Keulen's Hook probably included 
the bed of the northerly half of the creek opposite each 
lot. 

In 1873, the Hon. Murray Hoffman furnished an opinion 
to Mr. Voorhis, who owned property on the northerly side 
of the creek between Second and Third Avenues. It 
involved the question as to the title to Harlem Creek. After 
a very careful examination of the subject, Judge Hoffman 
arrived at the conclusion which may be summarized as 
follows : 

That the title to the creek became vested in the freehold- 
ers and inhabitants of Harlem by virtue of the Harlem 
patents. 

That the title of the City of New York, under the Dongan 
Charter, was limited to the strip of land between high and 
low water mark, at the mouth of the creek measured from 
point to point. 

That the title to the strip of land in question, (part of 
which was below low water mark on the creek) did pass 
under the patents, was vested before or in the year 1747 in 
one claiming under the patents, and that the title was then 
vested in Mr. Voorhis. 

Vide opinion of Judge Hoffman, in full in Appendix F. 

That these creeks were of no value to the public as high- 
ways of commerce, is further shown by the Acts of the City 
of New York, in filling them up, and constructing avenues 
and streets across them by virtue of the power conferred 
upon it by Statute. 

Until within a few years past it seems to have been taken 
for granted that the individuals who ownedland fronting on 
the respective sides of Harlem Creek, had title to the center 
of it. There is but little doubt that as a matter of fact that 
represented the true state of the case. 

As to the northerly half of the Creek east of the MUldam, 
the deeds from the time of the allotments by which the town 
disposed of Van Keulen's Hook, are missing. That part of 
the title has to rest on history and tradition. 



126 

The City of New York mapped the property and assessed 
it to the abutting owners, on the streets and avenues, as 
laid down on the Maps of the city and has awarded dam- 
ages for the land taken for pubHe use, and assessed the 
property to individuals for the benefit of the improvements. 

It has regularly taxed the property and sold parts of it 
for non-payment of taxes and assessments. The city has 
proceeded on the assumption that the owners of the land 
fronting on the creek, owned to the center of it. In pro- 
ceedings for opening streets and avenues, the corporation 
counsels and the Commissioners of Estimate and Assess- 
ment ascertain as far as practicable, to whom the land 
belongs, which is to be condemned and taken for public 
use, and to whom the awards are to be made for damages. 

The fair and reasonable presumption is that the city had 
joritna facie evidence as to who these owners were in most 
cases, and that if the city had owned or claimed the land, 
that fact would have been known to the officials appointed 
to look after the interests of the corporation. 

The Second Avenue was opened according to law, in 
1837, through the McGown Marshes and across the Harlem 
Mill Creek. The report of the Commissioners of Estimate 
and Assessment was confirmed April 5, 1837. 

See extracts from the report of the Commissioners in 
Appendix G. 

One Hundred and Seventh Street was opened according 
to law in 1872, from the Fifth Avenue to the East Eiver. 
The report of the Commissioners of Estimate and Assess- 
ment was filed December 11th, 1872. 

See section from the damage map, with schedule of 
names of lot owners in Appendix H. 

The Town of Harlem ceased to exercise corporate powers 
some time prior to December 1819. This appears from the 
petition of the freeholders and inhabitants presented to the 
Legislature under the date, praying for the appointment of 
tri^istees to sell the Harlem Commons. In that petition it 



127 

■was stated there were no persons "then in existence in 
whom said Common lands conld vest." 

See Harlem Commons and Louvre, p. 32, also Laws Of 
1820, Chapter 155. 

As far as known, the " freeholders and inhabitants of Har- 
lem " disposed of all of the common or town lands, except 
the Harlem Commons, before making the above petition to 
the Legislature. If any such lands remained, the State 
probably succeeded to the rights of the town. But in the 
face of the Harlem Patents, no title is presumably in the 
State. An actual occupant of any land embraced in the 
Harlem Patents, claiming to be the owner, would, prima 
fade, have derived his title from the town of Harlem. His 
title may have originated in a grant from the town. In 
default of a grant, such an occupant may have acquired a 
good title by adverse possession. When lands have been 
granted by the sovereignty, there is no presumption in favor 
of the State, in case of failure of title, aside from proceed- 
ings to escheat, as provided by law. The policy of the 
State is to deal fairly and equitably with actual occupants. 
This is shown in the laws of 1820, chap. 115, supra, in 
relation to the sale of the Harlem Commons, which con- 
tains this saving clause : " Section 2. Provided that noth- 
ing herein contained shall be construed to impair, affect or 
destroy, the legal rights of any person now in possession of 
any part of such common lands, but that the same shall 
remain, as before the passage of this act." 

This liberal policy of the State is also manifested in its 
dealings with, lands the titles to which are supposed to have 
failed, from defect of heirs, or alienage, and to have reverted 
to the people. In cases of this kind the Legislature seldom, 
if ever, hesitates to pass an act, releasing the claims of the 
State, whenever it is supposed that injustice might be done 
to any one, if the escheat is strictly enforced. The acts by 
which the State releases its interest in such lands, generally 
contain a provision that nothing in the act shall affect the 
rights of any heir, devisee or purchaser, or any creditor, by 
way of mortgage, judgment or otherwise. The State has 



128 

also always pursued a like liberal and just policy in regard 
to littoral and riparian proprietors. By the Revised Stat- 
utes, the Commissioners of the land office, are empowered 
■' to grant so much of the lands under the waters of navi- 
gable rivers or lakes, as they shall deem necessary, to pro- 
mote the commerce of this State "; and it provides that, 
" no such grant shall be made to any person other than the 
proprietor of the adjacent lands," and that " every such 
grant that shall be made to any other person shall be void." 

Revised Statues, 0. 9, Title 5, Art. 4, section 67. 

If it should be conceded that the Harlem Creeks were 
prima facie public navigable waters, then it would be but 
reasonable to assume, that the adjacent proprietors had the 
usual pre-emptive rights to grants of the soil under the 
waters of the creeks. 



CHAPTER XII. 

SUMMARY. 

All the right, title and interest of the sovereign in the 
Harlem Creeks was included in the first patent granted by 
Governor NicoUs to the freeholders and inhabitants of 
Harlem. The grant included the bed of the creeks down 
to the ordinary high water line along the shore of the Har- 
lem River and East River. 

These creeks were not navigable waters, according to the 
legal meaning of the term. What navigability they pos- 
sessed was so limited and unimportant as to be of no value 
to the public for commercial purposes. 

The grant of the creeks was absolute, and it has never 
been modified or revoked. 

These creeks were prima facie private waters, and the 
title of the proprietors of land bordering upon them 
extended by presumption to the filum, aquoe of the respec- 
tive streams. 



129 

The title to the southerly half of the Harlem Mill Creek 
was possessed by John Montagne, and that part east of the 
mill-dam passed by a complete chain to Margaret McGown. 

The remainder of the southerly half west of the mill- 
dam passed by a like chain to Peter B. Benson. 

The title to so much of the northerly half of the creek 
as was west of the mill-dam was conveyed by the Town of 
Harlem to Benjamin Benson, as a part of the Mill Camp 
property. Although the deed is missing, the historic evi- 
dence of Benson's title is so reliable, and the possession 
under it so ancient and well authenticated, that the title of 
Peter B. Benson to the whole of the Mill Pond may, with 
propriety, be called perfect. 

The title to the remainder of the northerly half of the 
creek eastward of the mill-dam was included in Van Keu- 
len's Hook farm, which was owned by the freeholders and 
inhabitants of Harlem. 

In the allotments and divisions of the farm among the 
freeholders entitled to participate, the property was dis- 
posed of in lots numbered consecutively and fronting on 
the creek. It is assumed that the descriptions carried the 
titles to the centre of the creek. The deed from Simon 
Johnson to Benjamin Benson probably followed the deeds 
given by the town, and that description goes to the centre 
of the creek. 

As the southerly half of that creek was owned by the 
Montagues, father and son, and as the allotments of the 
Van Keulen's Hook farm were made for agricultural pur- 
poses, there was no reason for reserving the bed of the 
stream opposite the respective lots. The presumption is 
that the town parted with all its title to the adjoining pro- 
prietors or occupiers, and that their titles originated in 
grants which have been worn out or lost. The most reas- 
onable and probable conclusion is, that Benjamin Benson 
had a good title to the northerly half of that part of the 
creek opposite his farm, and that it passed under his deed to 
his son, Peter B. Benson, and that the title as derived under 
that deed is good. 



130 



APPENDIX A. 

King Charles the Second's G^ant of New Netherland, Etc., to 
the Duke of York. 

Charles tlie Second by the Grace of God, King of Eng- 
land, Scotland, France and Ireland, Defender of the Faith, 
&c. To all to whom these presents shall come greeting: 
Know ye that we for divers good causes and considerations 
lis thereunto moving have of our especial Grace, certain 
knowledge and mere motion given and granted by these 
presents for us our heirs and successors do give and grant 
unto our dearest brother James, Duke of York, his heirs 
and assigns. All that part of the main land of New England 
beginning at a certain place called or known by the name 
St. Croix next adjoining to New Scotland in America and 
from thence extending along the Sea Coast unto a certain 
place called Petauquine and so up the River thereof to the 
furthest head of the same as it tendeth Northward; and 
extending from thence to the River Kinebequi and so 
upwards by the shortest course to the River Canada North- 
ward. And also all that Island or Islands commonly called 
by the several name or names of Matowacks or Long Island 
situate lying and being towards the West of Cape Cod and 
the narrow Higansetts abutting upon the main land between 
the two Rivers there called or known by the several names 
of Connecticut and Hudson's River together also with the 
said River called Hudson's River and all the land from the 
west side of Connecticut to the East side of Delaware Bay. 
And also all those several Islands called and known by the 
names of Martin's Vineyard and Nantukes otherwise Nan- 
tuckett ; Together with all the Lands, Islands, Soils, Rivers, 
Harbors, Mines, Minerals, Quarries, Woods, Marshes, 
Waters, Lakes, Fishings, Hawking, Hunting and Fowling 
and all other Royalties, Profits, Commodities and Heredit- 
aments to the said several Islands, Lands and Premises 
belonging and appertaining with their and every of their 
appurtenances; and all our Estate, Right,' Title, Interest, 



131 

Benefit, Advantage, Claim and Demand of, in and to the 
said lands and premises or any part or parcel thereof and 
the reversion and reversions, remainder and remainders 
together with the yearly and other rents, Eevenues and 
Profits of and singular the said premises and every part 
and parcel thereof; to have and to hold all and singular 
the said lands islands, hereditaments and premises with 
their and every of their appurtenances hereby given and 
granted or hereinbefore mentioned to be given and granted 
unto our Dearest Brother James, Duke of York, his heirs 
and assigns forever to the only proper use and behoof of 
the said James Duke of York, his heirs and assigns forever, 
to be holden of us, our heirs and successors as of our manor 
of East Greenwich and our County of Kent in free and 
common soccage and not in Capite nor by Knight service 
yielding and rendering. And the said James Duke of York 
doth for himself, his heirs and assigns covenant and prom- 
ise to yield and render unto us our heirs and successors of 
and for the same yearly and every year forty Beaver skins 
when they shall be demanded or within Ninety days after. 
And we do further of our special Grace certain knowledge 
and mere motion for us our heirs and successors give and 
Grant unto our said Dearest Brother James, Duke of York, 
his heirs. Deputies, Agents Commissioners and Assigns by 
these presents full and absolute power and authority to 
correct, punish, pardon, govern and rule all such the sub- 
jects of Our heirs and successors who may from time to time 
adventure themselves into any of the parts or places afore- 
said or that shall or do at any time hereafter inhabit within 
the same according to such laws. Orders, Ordinance, Direc- 
tions and Instruments as by our said Dearest Brother or 
his assigns shall be established; and in defect thereof in 
case of necessity, according to the good discretion of his 
Deputies, Commissioners, Officers or Assigns, respectively ; 
as well in all causes and matters Capital and Criminal as 
civil both marine and others ; so always as the said Stat- 
utes, Ordinances and proceedings be not contrary to but 
as near as conveniently may be agreeable to the Laws, Stat- 
utes and Government of this Our Eealm of England, and 



132 

saving and reserving to us our Heirs and successors the 
receiving, hearing and determining of the Appeal and 
Appeals of all of any person or persons of in or belonging 
to the territories or Islands aforesaid in or touching any 
Judgment or Sentence to be there made or given. And 
further that it shaU and may be lawful to and for our said 
Dearest Brother his heirs and assigns by these presents 
from time to time to nominate, make, constitute, ordain 
and confirm by such name or names, stile or stiles as to him 
or them shall seem good, and likewise to revoke, discharge, 
change and alter as well all and singular, Governors, Offi- 
cers and Ministers which hereafter shall be by him or them 
thought fit and needful to be made or used within the afore- 
said parts and Islands ; and also to make, ordain and estab- 
lish all manner of Orders, Laws, directions, instructions, 
forms and ceremonies of Government and Magistracy fit 
and necessary for and concerning the Government of the 
territories and Islands aforesaid, so always as the same be 
not contrary to the laws and statutes of this Our Realm of 
England; but as near as may.be agreeable thereunto: And 
the same at all times hereafter to put in execution or abro- 
gate, revoke or change not only within the precincts of the 
said Territories or Islands but also upon the seas in going 
and coming to and from the same as he or they in their 
good discretions shall think to be fittest for the good of the 
adventurers and Inhabitants there, and we do further of 
our special Grace, certain knowledge and mere motion 
grant, ordain and declare that such Governors, Officers and 
Ministers as shall from time to time be authorized and 
appointed in manner and form aforesaid shall and may 
have full power and authority to use and exercise Martial 
Law in cases of rebellion, insurrection and mutiny in as 
large and ample manner as Our Lieutenants in Our counties 
within Our Realm of England have or ought to have by 
force of their Commission of Lieutenancy or any Law or 
Statute of this Our Realm. And We do further by these 
presents for us Our heirs and successors, grant unto our 
said Dearest Brother James, Duke of York, his heirs and 
assigns, that it shall and may be lawful to and for the said 



133 

James, Duke of York,' his heirs and assigns in his or their 
discretion from time to time to admit such and so many 
person or parsons to trade and traffic unto and within the 
territories and islands aforesaid and into every or any part 
and parcel thereof, and to have, possess, and enjoy any 
Lands and Hereditaments in the parts and places aforesaid 
as they shall think fit according to the Laws, Orders, Con- 
stitutions and Ordinances of Our said Brother, his heirs. 
Deputies, Commissioners, and assigns from time to time to 
be made and established by virtue of and according to 
the true intent and meaning of these presents and under 
such conditions, reservations, and agreements as Our said 
Brother, his heirs or assigns shall set down, order, direct 
and appoint and not otherwise as aforesaid, and we do fur- 
ther of Our especial Grace, certain knowledge and mere 
motion for us our heirs and successors give and grant to 
our said Dear Brother his heirs and assigns by these pres- 
ents, that it shall and may be lawful to and for him, them 
or any of them at all and every time and times hereafter 
out of any Our Realm or Dominions whatsoever to take, 
lead, carry and transport in and into their voyages and for 
and towards the Plantations of Our said Territories and 
Islands all such and so many of Our loving subjects or any 
other strangers being not prohibited or under restraint that 
will become Our Loving subjects and live under Our alle- 
giance as shaiU willingly accompany them in the said voy- 
ages together with all such clothing, implements, furniture, 
and other things usually transported and not' prohibited as 
shall be necessary for the inhabitants of the said Islands 
and Territories and for their use and defence thereof and 
managing and carrying on the trade with the People there 
and in passing and returning to and fro : Yielding and 
paying to us. Our Heirs and successors, the Customs and 
Duties therefore due and payable according to the Laws and 
customs of this Our Realm. . And we do also for us Our 
Heirs and successors, grant to Our said Dearest Brother, 
James Duke of York, his heirs and assigns and to all and 
every such Governor or Governors or other officers or Min- 
isters as by Our said Brother his heirs or assigns shall be 



134 

appointed, to have power and authority of Government and 
Command in or over the inhabitants of the said Territories 
or Islands that they and every of them shall and lawfully 
may from time to time and at all times hereafter forever for 
their several defence and safety encounter, expulse, repel 
and resist by force of Arms as well by sea as by land and 
lall ways and means whatsoever all such person and persons 
'as without the special License of Our said Dear Brother 
his heirs or assigns shall attempt to inhabit within the sev- 
eral precincts and limits of Our said territories and Islands : 
and also all and every such person and persons whatsover 
as shall enterprize or attempt at any time hereafter the 
destruction, invasion, detriment or annoyance to the parts, 
places or Islands aforesaid or any part thereof. And lastly 
our will and pleasiire is, and we do hereby declare and grant, 
that these Our Letters Patents or the enrolment thereof 
shall be good and effectual in the law to all intents and pur- 
poses, whatsoever notwithstanding the not reciting or men- 
tioning of the premises or any part thereof, or the meets or 
bounds thereof, or of any former or other Letters Patents 
or Grants heretofore made or granted of the premises, or of 
any part thereof by us or of any of our progenitors unto 
any other person or persons whatsoever, bodies Politic or 
Corporate, or any Act, Law or other restraint ineertainty 
or imperfection whatsoever to the contrary in any wise not- 
withstanding ; although express mention of the true yearly 
value or certainty of the premises, or any of them, or any 
other gifts or grants by us or by any of our progenitors or 
predecessors heretofore made to the said James, Duke of 
York, in these presents is not made, or any statute, act, 
ordinance, provision, proclamation or restriction heretofore 
had, made, enacted, ordained or provided, or any other 
matter, cause or thing, whatsoever to the contrary thereof 
in anywise notwithstanding. 

In Witness Whereof we have caused these. Our Letters, to 
be made Patents, Witness Ourself at Westminster the 
twelfth day of March in the sixteenth year of our reign. 
(1664). 

By the king. Howard. 



135 

Original in State Library, Albany : Patents I, 109-115 
Learning and Spicer, 3-8 ; New York Colonial Documents, 
II, 295-298. 

Brodhead's , History of tlie State of New York II., 
651-652. 



The Duke of York's Commission to Colonel Richard Nicolls. 

James, Duke of York and Albany, Earl of Ulster, Lord 
High Admiral of England and Ireland, etc.. Constable of 
Dover Castle, Lord Warden of the Cinque Ports and Gover- 
nor of Portsmouth, etc. Whereas it hath pleased the King's 
Most Excellent Majesty, my Sovereign Lord and Brother, 
by His Majesty's Letters Patents, bearing date at West- 
minster the twelfth day of March in the sixteenth year of 
his Majesty's Reign, to give and grant unto me and to my 
heirs and assigns. All that part of the mainland of New 
England, Beginning at a certain place called or known by 
the name of Saint Croix, next adjoining to New Scotland in 
America, and from thence extending along the sea coast, 
into a certain place called Petaquine and so up the River 
thereof to the furthest head of the same, as it tendeth 
Northwards, and extending from thence to the River of 
Kinebequi, and so upwards by the shortest course to the 
River Qanada Northwards, And also all that Island or 
Islands commonly called by the several names or names of 
Matowacks or Long Island, situate, lj*ing and being towards 
the west of Cape Cod and the Narrow-Higansets, abutting 
upon the mainland, between the two rivers there called or 
known by the several names of Connecticut and Hudson's 
River ; Together alSo with the said River called Hudson's 
River and all the lands from the West side of Connecticut 
River to the East side of Delaware Bay ; And also all those 
several Islands called or known by the name of Martin's 
Vineyard and Nantukes otherwise Nantucket; Together 
with aU the Lands, Islands, Soils, Rivers, Harbors, Mines, 
Minerals, Quarries, Woods, Marshes, Lakes, Fishing, 



136 

Hawking, Hunting and Fowling, and all other Royalties, 
Profits, Commodities, Hereditaments, to the said several 
Islands, Lands and premises belonging and appertaining, 
with their and every of their appurtenances ; to Hold the 
same to my own proper use and behoof with power to cor- 
rect, punish, pardon, govern and Rule the inhabitants there- 
of, by myself, or such Deputies, Commissioners or Officers 
as I shall think fit to appoint ; as by His Majesty's said 
Letters Patents may more fully appear ; and Whereas I 
have conceived a good opinion of the Integrity, Prudence, 
Ability and Fitness of Richard NicoUs, Esquire, to be 
employed as my Deputy there, I have therefore thought fit 
to constitute and appoint, and I do hereby constitute and 
appoint him the said Richard NicoUs, Esquire, to be my 
Deputy-Governor within the lands. Islands and places afore- 
said, To perform and execute all and every the Powers 
which are by the said Letters Patents granted unto me to 
be executed by my Deputy, Agent or assign, to have and to 
Hold the said place of Deputy-Governor unto the said 
Richard NicoUs, Esquire, during my will and pleasure, dnly ; 
Hereby willing and requiring all and every the Inhabitants 
of the said Lands, Islands and Places to give obedience to 
him the said Richard NicoUs in all things, according to the 
tenor of his Majesty's said Letters Patents ; And the said 
Richard NicoUs, Esquire, to observe, follow, and execute 
such Orders and Instructions 'as he shall from time to time 
receive from myself. Given under my hand and seal at 
Whitehall, this second day of April, in the sixteenth year of 
the Reign of Our Sovereign Lord Charles the Second, by 
the Grace of God, King of England, Scotland and Ireland 
etc., Annoque Domini, 1664. 

James. 
By Command of His Royal HighneSte, W. Coventry. 

Patents I. 116-118 ; Leaming and Spicer 665-667. 
Brodhead's History of the State of New York, Vol II. 653. 



137 



APPENDIX B, No. 1. 

Ag^reement between John ISdontag^e and John Iiouwe Bogert for 

the sale of Hontagne's Point or Bechcowanis and the Meadows 

in the Bay of Hellgate. 

On this day the 18th May 1671, appeared before me Jan 
de Lamontagne, Secretary of this town admitted by the 
High and Honorabe Mayor's Court, Jan Lamontagne, afore- 
said and Jan Louwe Yan Schoonderwoert*, the which 
acknowledge to have bargained with one another about the 
sale of a piece of land named in the Dutch language Mon- 
tagne's Point, or by the Indians Eechcowanis, on condition 
as follows : Firstly, Jan Lamontagne aforesaid constitutes 
himself as seller, and Jan Louwe Van Schoonderwoert as 
the buyer of the aforesaid point, with the meadows lying in 
the Bend of Hellgate, ^hich the seller has received in 
exchange for the Town lot's meadows ; The point j.s bounded 
between two creeks up to the hill, and behind by a hill, 
with the meadows which are annexed, and all that on it is 
fast by earth and nails, excepting the sowing of grain and 
the plants of the hop plantation, with apple and pear trees, 
and twelve cherry trees, which the seller reserves to himself ; 
and that for the sum of three thousand guilders in sewant, 
or in grain at the price of sewant, without allowing the buyer 
to shift himself to any other payment, renouncing the bene- 
fit of every other pay ; and that on the next coming first of 
May, Anno 1672, the first payment, being fifteen hundred 
guilders, shall be made in payment as is aforesaid, the 
other half 'one year after date, in the before named pay- 
ment, being also fifteen hundred guilders; the seller 
promises this aforesaid land, with the meadows, for the 
before named sum, to deliver free and unincumbered when 
the first payment shall be paid (saving the right of the 
lord) ; provided that the buyer shall give a bond for the 
remaining payment ; also agreed that the seller shall remain 

* The same person who is afterwards called Jan Louwe Bogert. Trans- 
lator. 



138 

in possession until tlie first payment shall become due and 
be paid ; the buyer is at liberty to enter upon the unoccu- 
pied land immediately, and the other land as the harvest is 
taken off; the risk shall run at the charge of the buyer, 
except where it may arise through the negligence of the 
seller ; the seller premises to harrow the piece by the cherry 
trees once. The above written we the buyer and seller 
promise to keep and fulfill, in the presence of Meyndert 
Maljaart and Dirck Cornelissen, as witnesses hereunto 
requested. Dated as above, in the jurisdiction of N. Haar- 
lem. « 

J. Lamontagne, 
Jaan Van Sooderwoer. 
This is the mark of 

Meynder Naljaart. 
Dierck Cornelissen Hoochlandt. 

Translated by me, 

James Eiker. 



APPENDIX B, No. 2. 

Deed from the Magistrates of Harlem to John Montagne for Mon- 
tague's Point and the Meadows in the Bay of Hellgate. 

We, the Honorable Magistrates, with the vote and reso- 
lution of the Inhabitants of this town, have granted for- 
ever and as hereditary, to Jan de La Montague, a piece of 
land, with the meadows thereto annexed, named Montague's 
Point, formerly possessed by his late father, lying within 
our town's jurisdiction, bounded on the North side by a 
creek called Montague's Kill ; extending from the East 
Biver unto a little fresh- water creek running between Mon- 
tague's Flat and aforesaid Point ; on the South side bounded 
by a creek and a meadow and by hills, to the aforesaid little 
fresh -water creek where the King's Majesty his highway, 
goes over ; with the Meadows lying in the bend of Hell- 
gate, which Montague beforenamed has had in exchange 
for the Town Lot's meadows ; with such rights and privi- 



139 

leges as are granted us by patent and still remain to grant ; 
provided lie submit to such laws and servitudes as -with us 
are common and may be imposed, without that we or our 
Inhabitants, now or in future days, shall have any claim 
thereupon ; but as his other patrimonial property may 
enter upon and use or sell, as he may resolve and shall 
choose, saving the lord's right. For further security, and 
that our deed shall have greater force and legal authority, 
we the Magistrates and Constable subscribe the same, this 
8th February, Anno. 1672, in New Haerlem. 

, D. ToURNEUE, 

Eesalveet Waldeon, 
Johannes Veemelje, 
David Des Mabest, 
Pietee Eoelofsen, Constable. 
Translated by me, 

James Eikee. 



APPENDIX B, No. 3. 

Kesolution of the Constable and Magistrates Estimating the Land 
of Bogert Purchased from La Hontagne at 18 morgen. 

Anno 167 f , the 16th January. 
It is resolved by the Constable and Magistrates, to esti- 
mate the land possessed by Jan Laurens* Van Schoonre- 
woert, successor of Jan Lamontagne, at 18 •morgen. 
Present: David Des Maeest, 
JoosT Van Oblinus, 
Glaude Le Maistee, 

' LUBBEET GeEEITSEN, 

Coenelis Jansen, Constable. 
By order of the same, 

Hende. J. Vande. Vin, 

Secretary. 
Translated by me, 

James Eikee. 

* Laurens and Louwe were the same name. Trans. 



140 
APPENDIX B, No. 4. 

Deed for the Hop Garden by Maria Vermilje, Widow of Jan de La 
Hontagne, to Cornelia Everts, Wife of Jan Louwe Van Schoonre- 
woert (or Bogert). 

Appeared before me Hendrick J. Van der Vin, Secretary, 
residing at the village of New Haerlem, and the after-named 
witnesses, the modest Maria Vermilje, widow of the deceased 
Jan de Lamontagne, on the one, and Cornelia Everts, at 
present the wife of Jan Louwe Van Schoonrewoert, as 
authorized by her husband, on the other side, who acknowl- 
edged with one another to have agreed as foUdfvs : Maria 
Vermilje has sold to the aforesaid Cornelia her hop garden, 
lying behind the land of the aforesaid Jan Louwe against 
the hills; with all the rights and dependencies thereof, 
which she the seller was having; for three hundred guild- 
ers, of which sum she acknowledges to be paid in full the 
last penny with the first ; therefore the said hop garden 
cedes and conveys to the said Jan Louwe Van Schoonre- 
woert, in free and lawful ownership, without she, the seller, 
reserving or pretending any claim thereto, but letting the 
buyer do therewith as his own good will shall decide; 
promising this conveyance to free and indemnify against 
every one who shall bring any action or be disposed to 
make any pretense to the said Hop garden, saving the lord 
his right, without craft or design, under obligation accord- 
ing to the laws. Thus done and executed at New Haerlem, 
in the presence of Daniel Tourneur and Thomas Holland, 
as witnesses hereto requested, who with the appearers and 
me the secretary have there undersigned, this 4th Novem- 
ber Anno 1679. 

Maria Vermelje 
her 
Cornelia ^ Everts. * 
Daniel Tourneur, I mark 

his 
Thomas |^ Holland, 

mark. j 

♦Called by their maiden names, as was then the custom. 



141 

In presence of me, 



Hendr. J. Vandr. Vin, 

Secretary. 

Translated by me, 

James Eiker. 
Trans. 



APPENDIX B, No. 6. 

Ju(^^ent in Joost Van Oblinus V. Jan Louwe Bogert relating to a 
small meadow in Southerly end of tlie Bay of Hellgate. 

Thursday, this date 4th December 1679. 

AU present, the old and new magistrates, 

Kesolved Waldron 
Jan Dyckman 
Laurens Jansen 
Arent Hermensen (Bussing) 
Jan Hendricks (Brevoort) 
Johannes Vermelje 
Joost Van Oblinus 
Daniel Tourneur 

Joost Van Oblinus, Pltf. 

V. 

Jan Louwe. 

Whereas a dispute has arisen between Joost van Oblinus 
and Jan Louwe Tan Schoonrewoert over a certain small 
meadow lying in the Bend of Hellgate, which each of the 
parties claims as belonging to him; after several debates 
and rebuts on either side, it was decided by the Honorable 
Court, (the said small meadow being the most southerly in 



142 

the range under against tlie steep hill next the little kil,) 
that Jan Louwe for his meadows shall have those that 
strdtch from his great kil to the little kil from anckers 
house; the rest to Joost van Oblinus. And ordered that 
each shall bear his own costs attaching to this case. 

Translated by me, 

James Eiker. 



APPENDIX B, No. 6. 

Deed of the Overseers and Authorized men of Harlem to Jan Louwe 
Bogert for a piece of land lying in the Bend of Hell Gate. Being 
lot No 25 of common lands. 

On this date the 2d May 1700; 

Meeting held at the village of N. Haarlem. 

Present the Overseers and Authorized, Louwerens 
Jansen, Pieter van Oblinis, Jaques Tourneur, and Arent 
Harmensen, Adolph Meyer, Samuel Waldron. 

By order of Adolph Meyer, Jan Hendricksen Brevoort, 
Pieter van Oblinis and Samuel Waldron, authorized by the 
community at N. Haarlem, as appears from the proceedings 
of 29th November and the 11th December 1691, there was 
measured out for the undernamed person the following land. 
And thereupon the overseers and authorized have had writ- 
ten the following deed, such as they were also empowered 
to make, upon the 14th December 1699. 

There is set off for Jan Louwe Boogert (for the right of 
16 morgen of land and one erf right), a piece of land lying 
in the Bend of Hellgate, Beginning, from the southwest 
corner of the Hop Garden, by a birch tree, tiU to a white 
oak tree which stands by a little swamp, marked J. L. B. 
and J. D. L., thence towards the river past a rock marked 
J. L. B. and J. D. L., and so onward to the shore till to the 



143 

end of a meadow north of a rocky hill ; as it is at present 
fenced in. Signed the 21st March 1701. 

Pieter van Oblinis 

his 
Jaques Tourneur ST 

^^^1^^ Overseers. 

his 
Louwerens Jan^sen + 
mark 



Samuel Waldron 
Pieter van Oblinis 
Arent H. Bussing 



Adolph Meyer 



his 
AM 
mark 
his 

Jaques Tourneur ST 
mark 
his 

Louwerens Jansen + 
mark 



- Authorized. 



Adr. Vermenle 

Clerk. 

Translated by me, 

James Biker. 



APPENDIX B, No. 7. 

Deed of the Overseers oad Authorized Men of Haxlem to Jan de 
Lamaeter, for a Piece of Laud lying in the Bend of Hell Gate, 
Being lot No. 26 of common lands. 

On this date, the 2d May, 1700 : 

Meeting held at the village N. Haarlem. 



144 



Present the Overseers and the Authorized men, Louwe- 
rens Jansen, Pieter v: Oblienis, Jaques Tourneur and Arent 
Har. Bussing, Adolph Meyer, Samuel Waldron. 

By order of Adolph Meyer, Jan Hendricksen van Bre- 
voort, Pieter van Oblienis and Samuel Waldron authorized 
by the community of New Haarlem, as appears from the 
proceedings of 29th November and the 11th December 
1691, there was measured out for the undernamed person 
the following land. And thereupon the overseers and 
authorized have had written the following deed, such as 
they were also empowered to make, upon the 14th Decem- 
ber, 1699. 

There is set off to Jan de Lamaeter for nine morgen of 
land and one erf right, a piece of land lying in the Bend of 
Hellgate, extending from the Northwest corner of the end 
of his lots to a white oak tree marked J. D. L. and J. L. B., 
thence towards the river past a rock marked J. D. L. and 
J. L. B., and so onward to the shore, tiU to the end of the 
meadow north of a rocky hill. Signed the 21st March, 1701. 

Peter V. Oblinis 

his 
Jaques Tourneur ST 

mark \- Overseers, 
his 
Louwerens Jansen -(- 
mark 

Samuel Waldron 
Pieter v . Oblinis 
Arent Har. Bussing 

his 
Jaques Tourneur ST 

mark J- Authorized, 
his 
Adolph Meyer AM 
mark 
his 
Louwerens Jansen + 
mark 

Adr. Vermenle, Clerk. 
Translated by me, 

James Eiker. 



145 
APPENDIX B, No. 8. 

Minutes of the Town of Harlem dated January 3d, 1667, Helative 
to Building the Bam for Delavall's Mill at Harlem Creek. 

. On this date, 3d January, Ao. 1667, the Honorable Mr. 
Delavall proposed and requested that the magistrates of 
this "town do consider the following points : 



3d. That it be firmly settled that the inhabitants of the 
town will make the dam ; because other towns promise to 
make a dam if it should please him to build the mill near 
them. 

4th. Bequests leave to erect a stone house at the rear of 
his land near the mill, and to fortify it, as a refuge for the 
village in time of need. 

5th. Requests leave to run a fence straight from the 
fence now standing to the stone bridge upon Van Keu- 
len's Hook, and to use the land and meadows inclosed. 
* * * 

On the 4th of January : Advice of the inhabitants of 
the town upon the propositions of the Hon. Mr. Delavall : 



3d. Agree to make the dam for the mill, provided they 
may enjoy its benefits according to custom. 

4th. Agree that a house or bouwery may be rebuilt, to 
set near the mill, or where is most convenient for him. 

5th. Agree that the mill have the use of the land and 
meadow lying from the fence now standing to the stone 
bridge on Van Keulen's Hook. 



Translated by me, 

James Kiker. 



146 



APPENDIX B, No. 9. 

Deed for Mrs. Maria Vermilje, th.e widow of John Montagne, to 
John Iiouwe Bogert for Montagne's Point and the Meadows in 
the Bay of Hellgate. 

Appeared before me Hendrick Jansen Vander Vin, Sec- 
retary of the Town of New Harlem, and the afternamed 
witnesses, Mrs. Maria Vermilje, the widow of Jan de la 
Montainje, late Secretary of this town, who in his life-time 
has sold to Jan Louwe Van Schoonderwort his piece of 
land called Montainje's Point, together, with the meadows 
thereunto belonging, as shown by an article of the sale 
thereof dated 18 May, 1671, and by indenture bearing date 
8 February, 1672, for the sum of three thousand guilders, 
of which sum the appearer, characterized as above, hereby 
acknowledges the receipt in full to the last penny, in the 
first place giving thanks to the buyer for his punctuality, 
and releasing him from all future demands. Therefore as 
it has been ceded and conveyed, so the grantor hereby 
cedes and conveys the said piece of land, and meadows 
thereunto belonging, to him the buyer, in free and true pos- 
session, as they were possessed by her, without that she 
the appearer, or her heirs, thereto shall claim any right ; 
putting him the said buyer into the right and actual pos- 
session of the same, without doing or permitting anything 
against the same ; promising always to clear and defend 
this conveyance ; to indemnify him and keep him harmless 
from cost and daimage against every one that may or shall 
bring claim or pretension to the same (all this without art 
or cunning) : To the fulfillment of this and what is before 
written the appearer binds herself and her property, per- 
sonal and real, without any exception. The appearer 
acknowledges the truth of this by her own hand under- 
written ; in presence of Mr. David des MareSt (ruling mag- 
istrate) and Dan. Tourneur, as witnesses hereto besought 



147 

and requested. Thus done and executed at New Harlem 
on the 30th Day of the month of March, 1674. 

Maria Montainje. 
"Witnesses : 

David des Marest, 

Daniel Tourneur. 

Hendrick Jans. Vander Vin, 

Secretary. 

Extract out of the Eegister of New Harlem. 



APPENDIX B, No. lO. 

Historical statement of James Siker Esq relative to lots Nos 21, 32. 
23 and other lots on Van Keulen's Hook and Jockem Pieters 
tract &c 

Mem. iy James Rtker. 

[The mill was built; being referred to in 1668, '69, '73, &c., 
and also so stated in Capt. Delavall's deed to Carteret in 
1676. 

As to the allotment of No. 22 Van Keulen's Hook to 
John LeKpy, his tranfer to Moesman and his to Delavall ; 
and the laying out of lot 23 to Delavall, to take the place 
of No. 21, the following facts appear. 

In the list of the allotments on Van Keulen's Hook, 
made out in 1662, the names of the grantees were entered 
opposite the several numbers up to and including No. 21. 
But the space opposite lot 22 was left blank .for the reason 
I presume, that just then LeKoy, who had "contracted " to 
buy out Philip Presto's allotment (which included a lot on 
Jochem Pieters), was having a dispute with Presto, in 
Court, over their bargain. It was settled, and LeKoy got 
Presto's land ; with the lot 22, as appears by an original 
description of lot 21, in which he is named as adjoining 
owner on the west side. 

The lot on Jochem Pieters which LeEoy got of Presto, is 
shown to have been one of the three numbers 20, 21, 22. 



148 

This is a logical inference from the fact that, while it was 
one of the Jochem Pieters lots, it was not any one of the 
other 19 lots, the history of which is clearly traced. It 
further appears that within a short time, Moesman came to 
Harlem, (in 1663), and became the owner of two of the 
three aforesaid lots on Jochem Pieters, prior to March 13. 
1664, while somewhere about the same time (previous, we 
infer, to Dec. 27. 1663) LeKoy sold his two Presto lots, 
having bought another allotment June 1. 1662, nearer the 
village, and which he occupied many years. That near the 
close of 1664, Moesman returned to Holland, when DelavaU 
appears as owner of the Presto lots. No. 22 V. K. Hook, 
and one of the Nos. 20-22, J. P. Flat. The third lot of 
these three (not owned by Moesman) is quite satisfactorily 
traced from Adam Dircksen, through Morris Peterson and 
Valentine Claessen to DelavaU. We place Moesman's two 
lots on Jochem Pieters within the three numbers 20-22, for 
the same reason before given that the exact knowledge we 
have of the other 19 lots makes it clear that his two lots 
were not among the'm. But Delavall's testimony in the 
deed of 1676, shows that we need not go to find the Moes- 
man lots outside of those he then conveyed to Carteret. 
From all this I think we must conclude that in Moesman's 
two allotments (an allotment then embraced a farm lot on 
Jochem Pieters, a supplementary lot on Van Keulen's Hook, 
a house lot, garden and salt meadows; and these were 
rarely sold separately at that early date), were included 
LeEoy's lot 22 on Van Keulen's Hook and his lot on J. P. 
Flat. 

"When DelavaU in his deed to Caj-teret, in 1676, conveys 
the farm he "formerly bought- of one Moseman," that 
description was understood as carrying the six of the lots 
belonging to him on Jochem Pieters which lay in one tract, 
although but two of those lots were actually bought of 
Moesman ; and therefore the inexact language of that deed 
is not to be taken as showing that lot No. 22 Van Keulen's 
Hook was not also a part of the Moesman farm, against the 
evidence that it was. 

The facts in brief might be thiis stated: John LeEoy 



149 

became possessed of lot No. 22 Van Keulen's Hook tinder 
the allotment of 1662, and as a supplementary grant to a 
lot on Jochem Pieters (one of the Nos. 20, 21, 22) which he 
had pilrchased of Philip Presto. Arent Moesman buying 
in 1663, two of the said three lots, together with their sup- 
plementary lots on Van Keulen's Hook, thus came to own 
the lot 22 first above named, and which in 1664, he con- 
veyed with tlie rest of his two allotments to Thomas Dela- 
vaH. 

Delavall, by an exchange of lots with Glaude Delamater 
in 1673, came in possession of No. 21, Van Keulen's Hook, 
which Delamater had purchased prior to 1668, when he 
had it patented. But for some reason (and facts seem to 
point to a very good one), after Delamater's death, his 
widow laid claim to this lot 21, and on June 4. 1690 sold it 
to her son in law Arent Bussing, who continued to hold it. 
To get over the difficulty Delavall was granted another lot 
on the west side of 22, and which was done prior to June 
29, 1691, (when John Delavall was in possession of the 
two lots) and I think before the sale of lot 21 to Bus- 
sing. 

I have never met with the assignment from Elias Pipon 
to Simon Johnson and others, but it is recited in an orig- 
inal deed dated Sept. 25. 1747, of which the following is 
the preamble. 

" Whereas I, Simon Johnson, John Auboyneau and James 
Favieres (the two last late of the City of New York, mer- 
chants, deceased) three of the creditors of Elias Pipon, 
Being by divers mean conveyances seized in fee of all the 
lands which lately were of the said Elias Pipon, in trust 
that we by sale of the premises might raise sufficient for 
the payment of the debts of the said Elias Pipon and return 
to him the overplus," &c. 

The same facts are stated in a petition of Johnson, 
Auboyneau and Faviere to the Gov. and Council Apl. 6. 
1737. (N. Y. Council Minutes.) Also in printed N. Y. 
Assembly Journals of Apl. 20. 1787. 



150 
APPENDIX B, No. 11. 

Minutes of the Town of Harlem of October 33, ITSS^ containing 
grant to Samson Benson to build a dam and a mill on t'he Mill 
Camp, " in place of DelavaJl's Mill gone to decay.'' 

On this date, the 23d October, in the year 1738, the 
inhabitants and Owners of New Haarlem, by their signa- 
tures underwritten, have consented and agreed with Sam- 
son Benson, in regard to the setting or building of a Mill 
with a dam on the MiU Creek, on the foUowing conditions : 
The inhabitants and the owners of New Haarlem, who have 
signed this writing do give permission to the said Samson 
Benson to set a Mill with a dam on the Mill Camp wherever 
it may suit him best, and that for him and his heirs ; and 
for the making or repairing the dam may draw stones 
and earth in the MiU Camp as if it were his own ; aind the 
undersigned promise in all uprightness that neither they 
nor their heirs or successors, nor any of them will ever dis- 
turb him in respect to shutting of the dam on the said 
creek, or their right to the creek, which the undersigned 
for themselves, their heirs and successors fully give to the 
said Samson Benson, and that upon condition that the said 
Samson Benson shall honestly perform the following : 

First, that after the Mill shall have been built, and it 
shall get out of repair, and shall remain useless for two 
years, the right to the creek shall revert to the town again. 

Second, that the said Samson Benson shall be bound to 
provide that the neighbors suffer no damage to their 
meadows. 

Third, that, the inhabitants of New Haarlem shall have 
the freedom of fishing, shooting and oystering in the creek 
as before. 

Fourth, that the inhabitants of New Haarlem who have 
signed this, and their successors, shall have the first privi- 
lege, before the outside people, whether bakers, bolters or 
farmers, to wit, two days of the week as Tuesdays and 
Saturdays. Done at New Haarlem, on the date as 
above. 



151 

her 
Maria x Meyer 

mark 
Pieter Van Oblinis, 

his 
Dirck DB Benson. 

mark 

Johannes Waldron 
Johannes Benson 
Johannes Meyer 
Barent Waldron 
Abram Meyer 

his 
Lourens + Low 

mark 
Arent Bussing 
Jan Kiersen 
Jan Dykman 
Jacob Dyckman 
Wilhelmus Waldron 
Adolph Meyer 
Jan Nagel 
Johannes Waldron. 

This is signed, sealed and de- 
liyered in the presence of us, 

Translated by me, 

James Eiker. 



APPENDIX B, No. 12. 

Award of Lewis Horris of the Manor of Morrisania, Abraham Van 
Wyck and others on behalf of the freeholders of the township of 
New Harlem, allotting the IVEill Camp Tract adjoining the Mill 
Pond to Bnejamin Benson. 

To aU Christian People, to whom this present writing of 
Award Indented shall come. We, Lewis Morris, of the 
Manor of Morrisania, in the County of Westchester, Esqr. 



152 

Abraham Van Wyck and Abraham Lefferts, of the City of 
New York, Merchants, Send Greeting : Whereas the free- 
holders of the township of New Harlem, at a town meeting 
held in the said town on the twentieth day of December, 
one thousand seven hundred and fifty two, did by plurality 
of voices, nominate and appoint us Arbitratprs to settle, 
adjust and determine the several disputes and differences 
that had from time to time subsisted and still did subsist 
between the said freeholders concerning their several rights 
in the patent of New Harlem, and also all other disputes 
whatsoever that had arisen concerning their several public 
transactions of their town in laying out their commons, or 
selling of any of their lands, . . . Now know Ye, that 
we the said arbitrators . . have, and by these presents 
do unanimously make, publish and declare this our Award, 
order, judgment and final determination of and upon th§ 
premises aforesaid in the manner and form following, that 
is to say: . . . Whereas Benjamin Benson, one other 
of the said freeholders has a grant from the said town of 
New Harlem for liberty of using stone and earth from and 
out of the Mill Camp within the bounds of the said town, 
for the use of his mill dam, and being willing to have the 
said Mill Camp assured and conveyed to him and his heirs 
forever for a reasonable consideration, We therefore having 
taken into consideration his claim of privilege, do award, 
order and adjudge that he pay or cause to be paid to the 
said elders and deacons the sum of One hundred and sixty 
pounds current money afoi'esaid for the absolute purchase 
thereof, and that within three months after the date hereof ; 
and that a deed be made and executed to him and his heirs 
for the same by and according to the bounds and limits fol- 
lowing, to wit : Beginning at the fence of the said Benjamin 
Benson by the Mill Creek and runs along his fence North- 
wardly to Harlem road about thirty one' chains, thence 
along said road twenty three chains and one half, which is 
three chains beyond a large oak tree near Van Breemen's 
house, thence south ten degrees east to the said Mill Creek, 
thence along the said Creek to the place where it began ; 
in which deed shall be contained a covenant or proviso that 



153 

the said Benjamin Benson, his heirs and assigns whom 
shall be owner and owners of the said Mill for the time 
being shall at all times and forever leave and keep a con- 
venient road, with a swinging gate, for passing and repass- 
ing over the Mill Camp to the said mill, and that the same 
deed be made and executed in the same manner as hath 
been used by the said freeholders on the sale of their said 
common lands ; and we do also award and order that when 
and so soon as the said consideration money is paid and 
deed executed, they the said freeholders shall be thence- 
forward fully and absolutely acquitted and discharged of 
and from all demands whatsoever from the said Benjamin 
Benson on pretence of any moneys by him paid for their 
use on any suit or suits in law or otherwise for or in respect 
of the defense of the title to the said Mill Camp, in anywise; 
We so also award order and adjudge that no encroachments 
shall be made from the westermost limits of this grant to 
Benjamin Benson, but that the small part of the Mill Camp 
which remains undisposed of, lying between his westermost 
bounds and the Mill Creek, so far as the bridge, shall be 
and remain in common free and open for the benefit of all 
the freeholders and inhabitants of Harlem for their crea- 
tures feeding and going to salt. ... In witness whereof 
we the said arbitrators have hereunto set our hands and 
seals, the thirtieth day of May, in the twenty sixth year of 
the reign of our sovereign lord King George the Second, 
Anno. Dom. one thousand seven hundred and fifty three. 
Abm. Van "Wyck © Abrahm. Lefferts © Lewis Morris. © 

Sealed and delivered Sealed and delivered 

by Messrs. Abr. Van Wyck by Lewis Morris, Esq. 

and Abr. Leffert In the presence of us 
In the presence of us Ts. Shepherd, 

Peter Clopp'er, Elizabeth Leggett. 

Andw. Breasted. 

The foregoing taken by me from a very old copy 
indorsed "A True Copy taken from the original 
Septr. 1st 1766, by me John Bogert, Junr." 

James Eiker. 



154 

I conclude that Benson paid the £160, and reoeited his 
deed and for three reasons : 

1st. He had previously negotiated for the purchase of the 
Mill Camp, and had given hands to stand by the award. 
2nd. A receipt from the elders and deacons for £248 ; 12 : 
6, as proceeds of "the sold land", (£248 being just the 
amount due from Benson and others to whom land was 
awarded), dated Aug. 30, 1753, three months to a day from 
the date of the award, shows that the moneys were actually 
paid in. 

3d. Benson remained in undisturbed possession of the 
Mill Camp. J. E. 



Certificate of James Kiker, Esq., author of the History of Harlem, 

authenticating Butch documents. 
To 

John W. Pirsson, Esq. 
Counsellor at Law, 

New York. 

Dear Sir, 

I do certify that I have access to the original Records 
of the town of " New Harlem", now extant ; that I am suffi- 
ciently conversant with the ancient Dutch text to read and 
translate it ; that the documents and instruments contained 
in the foregoing paper marked Appendix B. are translations 
made by me from the originals, and I verily believe the 
same to be correct and reliable. The following is a list of 
the said documeiits. 

1. Agreement for the sale by Jan Lamontagne to Jan . 
Louwe Van l&choonderwoert (Bogert) for sale of Mon- 
tague's Point and meadows, dated 18th May 1671. 

2. Deed of grant and confirmation of the magistrates of 
Harlem to John de La Montague of Montague's Point 
and the meadows in the Bay of Hellgate, dated 8 Feby. 
1672. • 



155 

3. Kesolution of the Constable and Magistrates, estimate 
land of Jan Lourens Van Schoonerwoert (Bogert) at 18 
morgens, dated Jany 16tli. 167 f . 

4. Deed by Maria; Vermilje, widow of Montagne to Cor- 
nelia Everts (tvife of Bogert) for the Hop Garden, dated 
4th Nov. 1679. 

5. Judgment in suit of Joost Van Oblinus vs Jan Louwe 
(Bogert) in Harlem Court relative to a small meadow 
in the Bay of HeUgate, Dec. 4. 1679. 

6. Deed of the Town of Harlem to Jan Louwe Bogert of 
Lot No. 25 of the Common lands, dated 21st March 
1701. 

7. Deed of the Town of Harlem to Jan de Lamaeter for 
lot No. 26 of the Common lands, 21st March 1701. 

8. Minutes of the Town of Harlem relative to building the 
dam for Delavall's Mill at Harlem Creek, dated Jany 
3. 1667. 

9. Deed from Mrs. Maria Vermilje, the widow of John 
Montagne, to John Louwe Bogert, for Montague's 
Point and meadows in the Bay of Hell-Gate. 

11. Minutes of the Town of Harlem containing grant to 
Samson Benson to build dam, and Mill on the Mill 
Camp (in place of the Delavall Mill, gone to decay) 
dated 23d Oct. 1738. 

12. Award of Lewis Morris and others, arbitrators and the 
concurrence of the Freeholders &c of the Mill Camp 
property to Benjamin Benson, dated May 30th 1753 
(being extracted from "A True copy taken from the 
original Sept. 1st. 1766, by me John Bogert, Jr.") 

Dated Waverly, Tioga County, N. Y. May 14th. 1888. 

James Eiker. 



Waverly, 
Tioga County, 
New York. 



^ss: 



On the 15th day of May 1888, before me came James 
Eiker to me known to be the same person who subscribed 



156 



the above certificate and acknowledged to me that he made 
and signed the same. 

W. H. Spaulding, 

Justice of the Peace. 

^ate of New York 1 ^ ^ j^^^^ j_ ^^^ ^^^^^^ 

Tioga County Clerks Office f ^^^^^ ^^ ^^.^ ^^^^^^ 

and also Clerk of the County and Supreme 
Courts held therein, (Courts of Eecord) do 
hereby certify that W. H. Spaulding whose 
name is subscribed to the certificate of 
proof or acknowledgment of the annexed 
instrument was, at the date of such certifi- 
cate, a Justice of the Peace in and for said 
County, commissioned and Sworn and duly 
authorized to take the same that I am well 
acquainted with his hand writing and verily 
believe that the signature to said certificate 
is genuine, and that said instrument is exe- 
cuted and acknowledged according to the 
laws of the State of New York. 

©In Witness Whereof I have hereunto 
subscribed my name and affixed the seal of 
said Courts and County at Owego, this 16 
day of May 1888. 

J. J. Van Kleeck, Clerk. 



APPENDIX C, No. 1. 

Eichard NiohoUs' Patent of May, 1666. 

A patent granted unto the freeholders and inhabitants of 
Harlem, alias Lancaster, upon the island of Manhattan, 
Richard Nicholls, Esquire, Govenor, under his Eoyal High- 
ness, James Duke of York, &c., of all his territory in Amer- 
ica, To all to whom these presents shall come, sendeth 



157 

greeting. Whereas, there is a certain town or village, com- 
monly called and known by the name of New Harlem, 
situate and being on the east part of this island, now in the 
tenure or occupation of several freeholders and inhabitants, 
who have been at considerable charge in building, as well 
as manuring, planting and fencing the said towne and lands 
thereunto belonging. Now for a confirmation unto said 
freeholders and inhabitants in their enjoyment and posses- 
sion of their particular lots and estates in the said town, as 
also for an encouragement to them in their farther improve- 
ment of the said land. Know ye, that by virtue of the com- 
mission and authority unto me given by his Eoyal High- 
ness, the Duke of York, I have thought fit to ratify, confirm 
and grant, and by these presents do ratify, confirm and grant 
unto the said freeholders and inhabitants, their heirs, suc- 
cessors and assigns, and to each and every of them, their 
particular lots and estates in the said town or any part 
thereof. And I do likewise confirm and grant unto the 
freeholders and inhabitants in general, their heirs, succes- 
sors and assigns, the privileges of a town, but immediately 
depending on this city, as being the liberties thereof, more- 
over, for the better ascertaining of the limits of the lands to 
the said town belonging : the extent of their bounds shall 
be as follows, viz : — That from the west side of the fence of 
the said township, a line be run due west four hundred 
English poles, without variation of the compasse, at the end 
whereof another line being drawn to run north and south, 
with the variation, that is to say, north to the very end of a 
certain piece of meadow ground, commonly called the round 
Meadow, near or adjoining to Hudson Eiver, and South to 
the saw mills, over against Hogg Island, commonly called 
Ferkin's Island it shall be the west bounds of their lands, 
and all the lands lying and being within the said line so 
drawn north and south as aforesaid, eastward to the town 
and Harlem river, as also to the north and east rivers shall 
belong to the town, together with all the soils, creeks, 
quarries, woods, meadows, pastures, marshes, waters, fish- 
ings, huntings and fowling, and all other profits, commodi- 
ties emoluments and hereditaments to the said lands and 



158 

premises within the said line belonging, or in any wise 
appertaining, with their and every of their appurtenances : — 
To have and to hold all and singular the said lands, hered- 
itaments and premises, with their and every of their appur- 
tenances, and of every part and parcel thereof, to the sard 
freeholders and inhabitants, their heirs, successors and 
assigns to the proper use and behoof of the said freeholders 
and inhabitants, their heirs, successors and assigns forever. 
It is likewise further confirmed and granted, that the inhab- 
itants of said town shall have liberty for the conveniency 
of more range of their horses and cattle, to go farther west 
into the woods, beyond the aforesaid bounds, as they shall 
have occasion, the lands lying within being intended for 
ploughing, home pastures, and meadows grounds only. 
And no person shall be permitted to build any manner of 
house or houses within two miles of the aforesaid limits or 
bounds of the said town, without the consent of the inhabi- 
tants thereof. And the freeholders and inhabitants of the 
said town are to observe and keep the terms and conditions 
hereafter expressed, that is to say : — That from and after 
the date of these presents, that said town shall no longer 
be called New Harlem, but shall be known and called by 
the name of Lancaster. And in all deeds, bargains and 
sales, records or writings, shall be so deemed, observed and 
written; moreover, the said town lying very commodious 
for a ferry to and from the main, which may redound to 
their particular benefit, as well as to the general good, the 
freeholders and inhabitants shall be obliged at their charge, 
to build or provide one or more boats for that purpose, fit 
for the transportation of men, horses and cattle, for which 
there will be such a certain allowance given, as shall be 
adjudged reasonable. And the freeholders and inhabitants, 
their heirs, successors and assigns are likewise to render 
and pay all such acknowledgments and duties as already 
are or hereafter shall be constituted and ordained by his 
Royal Highness, the Duke of York and his heirs, or such 
Governor or Governors as shall from time to time be 
appointed and set over them. Given under my. hand and 
seal, at Fort James, in New York,' on Manhattan Island, 



159 

tte day of May, in the eighteenth year of the reign 

of our sovereign, Lord Charles the Second, by the grace of 
God, King of England, Scotland, France and' Ireland, 
defender of the faith, &c., and in the year of our Lord God, 
1666. 

Eichard NichoUs. 

State of New York, 
Secretary's Office. 

I certify the preceding to be a true copy of certain letters 
patent or grant, as of record in this office, in Liber part 1, 
page 57 &c. 

Archibald Campbell, 

Deputy Secretary. 
Albany, October 4, 1816. 



APPENDIX C, No. 2. 

Richard Nicholls' Patent of 11th October, 1667. 

Eichard NicoUs, Esq., Governor-General under his Eoyal 
Highness Duke of York and Albany, &c., of all his terri- 
tories in America, to all to whom these Presents shall come, 
sendeth Greeting : Whereas, there is a certain town or vil- 
lage upon this island, Manhattan's, commonly called and 
known by the name of New Harlem, situate, lying and being 
on the east part of the island, now in the tenure or occu- 
pation of several of the freeholders and inhabitants, who 
being seated there by authority, have improved a consider- 
able proportion of the lands thereunto belonging, and also 
settled a competent number of families thereupon, capable 
to make a township. Now for confirmation to the said 
freeholders and inhabitants in their possession and enjoy- 
ment of the premises, as also for an encouragement to them 
in their further improvement of the said lands. Know Ye : 
That by virtue of the commission and authority unto me 



160 

given by his Eoyal Highness, I have given, ratified, con- 
firmed and granted by these presents due, give, ratify, con- 
firm and grant unto Thomas Delavall, Esq., John Ver- 
veelen, Daniel Tourneur, Joost Oblinus, and Besolved 
Waldron, as patentees, for and in behalf of themselves and 
their associates, the freeholders and inhabitants of the said 
town, their heirs, successors and assigns. All that tract, 
together with the several parcels of land, which already have 
or hereafter shall be purchased or procured for and on the 
behalf of the said town within the bounds and limits here- 
after set forth and expressed, viz.: That is to say, from the 
west side of the fence of the said town, a line being run 
due west four hundred English poles, without variation of 
the compass, and at the end thereof, another line being 
drawn across the island north and south, with the varia- 
tion, that is to say, north froni the end of a certain piece 
of meadow ground, commonly called the Round Meadow, 
near or adjoining unto Hudson's or North River, and south 
to ye place where formerly stood the saw mills, over against 
Verchens or Hogg Island, in the Sound or East River, shall 
be the western bounds of their lands, and all the lands 
lying and being within the said line, to draw north and 
south as aforesaid, eastward to the end of the town and 
Harlem River, or any part of the said river on which this 
island doth abut, and likewise on the North and East Riv- 
ers, within the limits aforementioned described, doth and 
shall belong to the said town ; as also four lots of meadow 
ground upon the Maine, marked with Number 1, 2, 3, 4, 
lying over against the spring, where a passage hath been 
used to ford over from this island to the maine, and from 
thence hither, with a small island, commonly called Stoney 
Island, lying to the east of the town and Harlem River, 
going through Bronckx Kill by the liitle and great Barne's 
Islands, upon which there are also four other lots of 
meadow ground, marked with No. 1, 2, 3, 4, together with 
all the soils, creeks, quarries, woods, meadows, pastures, 
marshes, waters, lakes, fishing, hawking, hunting and fowl- 
ing and all other profits, commodities, emoluments and 
hereditaments, to ye said lands and premises within the 



161 

said bounds and limits set forth, belonging or in anywise 
appertaining, and also freedom of commonage of range and 
feed of cattle and horses, further west into the woods upon 
this island as well without as within their bounds and lim- 
its : To have and to hold all and singular the said lands, 
islands, commonage, hereditaments and premises, with their 
every of their appurtenances and every part or parcel 
thereof, unto ye said patentees and their associates, their 
heirs, successors and assigns, to the proper use and behoof 
of the said patentees and their associates, their heirs, suc- 
cessors and assigns forever. And I do hereby likewise 
ratify, confirm and grant unto the said patentees and their 
associates, their heirs, successors and assigns, all the rights 
and privileges belonging to a town within this government, 
with this proviso or exception : that in all matters of debt 
or trespass of or above the value of five pounds, they shall 
have relation to and dependence upon the courts of this 
city as the other towns have upon the' several Courts of 
Sessions to which they do belong. Moreover the place of 
their present habitation shall continue and retain the name 
of New Harlem, by which name and stile it shall be dis- 
tinguished and known in all bargains and sale deeds and 
records. And no person whatsoever shall be suffered or 
permitted to erect any manner of house or building upon 
this island, within two miles of the limits and bounds afore- 
mentioned, without the consent and apjjrobation of the 
major part of the inhabitants of the said town. And 
Whereas the said town lies very commodious for a ferry to 
pass to and from the Main, which may redound to the par- 
ticular benefit of the inhabitants as well as to a general 
good, the freeholders and inhabitants of the said town 
shall, in consideration of the benefits and privileges herein 
granted, as also for what advantage they may receive there- 
by, be enjoyned and obliged at their own proper cost and 
charge, to build or provide one or more boat^ fit for the 
transportation of men, horses and cattle, for which there 
shall be a certain allowance given by each particular per- 
son, as shall be ordered and adjudged fit and reasonable, 
they the said patentees and their associates, their heirs, 



162 

successors and assigns. Rendering and paying such duties 
and acknowledgments as now are or hereafter shall be con- 
stituted and established by the laws of this government, 
under the obedience of his Royal Highness, his heirs and 
successors. Given under my hand and seal, at fort James, 
in New York, on the Island Manhattan's, in America, the 
11th. day of October in the 19th. Year of his Majesties 
reign, Annoq Domini, 1667. 

State of New York, 
Secretary's Office. 

I have compared the preceding with certain letters pat- 
ent, as of record in this office, in book of patents No. 4, 
page 57, &c., and do certify that the same is a correct tran- 
script therefrom, and of the whole of said patent. 
Archibald Campbell, 

Deputy Secretary. 
Albany, February 26, 1836. 



APPENDIX C, No. 3. 

Dongan Patent of March 1686. 

Thomas Dongan, Captain General, Governor in Chief, 
and Vice Admiral in and over the province of New York 
and its dependencies thereon, in America, under his 
Majesty James the Second, by the Grace of God of Eng- 
land, Scotland, France and Ireland, King, defender of the 
faith &c. to all whom these presents shall come, sendeth 
greeting i-Whereas, Richard NicoUs Esq. formerly Governor 
of this province hath by his certain writing or patent, bear- 
ing date the eleventh day of October, Anno Dom.' one 
thousand six hundred and sixty seven, did give, ratify, con- 
firm and grant unto Thomas Delavall Esq., John Verveelen, 
Daniel Tourneur, Joost Oblinus and Resolved Waldron, as 
patentees, for and on the behalf of themselves and their 



163 

associates, the freeholders and inhabitants of New Harlem 
their heirs, successors and assigns, all that tract, together 
with the several parcels of land, which they then had, or 
after should be purchased or procured for and on the 
behalf of the said town, within the bounds and limits here- 
after set forth and expressed, viz : that is to say, — From the 
west side of the fence of the said town, a line being run due 
west four hundred English poles, without variation of the 
compass, and at the end thereof another line being drawn 
cross the island north and south with the variation, that is 
to say, north from the end of a certain piece of meadow 
ground, commonly called the Meadow Ground, the round 
meadow near or adjoining unto Hudson's or the North 
Biver, and south to the place where formerly stood the saw 
mills, over against Yerkins or Hogg Island, in the Sound 
or East River, shall be the western bounds of their lands, 
and all the lands lying and being within the said line so 
drawn north and south as aforesaid, eastward to the end 
of the town and Harlem Eiver, or any part of the said 
River on which this island doth abut, and likewise on the 
north and east rivers, within the limits aforementioned 
described, doth and shall belong to the said town, as also 
four lots of meadow ground upon the Main marked with 
number 1, 2, 3, 4 lying over against the spring, where a 
passage hath been used to ford over from this island to the 
Main, and from thence hither, with a small island commonly 
called Stony Island, lying to the east of the town and Har- 
lem Eiver, going through Bronck's Kill, by the little and 
great Barn's Island, upon which there are also four other 
lots of meadow ground, marked with number 1, 2, 3, 4, 
together with all the soils, creeks, quarries, woods, mead- 
ows, pastures, marshes, waters, lakes, fishing, hawking, 
hunting, and fowling, and all other profits, commodities, 
emoluments and hereditaments to the said land and prem- 
ises, within the bounds and limits set forth, belonging or in 
anywise appurtaining, and also freedom of commonage for 
range and feed of cattle and horses, further west into the 
woods upon this island, as well without as within their 
bounds and limits set forth and expressed, to have to hold 



164 

all and singular the said lands, island commonage heredita- 
ments and premises, with their, and every of their appurte- 
nances, and of every part and parcel thereof, unto the said 
patentees and their associates, their heirs, successors and 
assigns, to the proper use and behoof of the said patentees 
and their associates, their heirs, successors and assigns for- 
ever. And whereas, Richard Nicoll, Esq. did likewise 
ratify, confirm and grant unto the said patentees and their 
associates, their heirs, successors and assigns, all the rights 
and privileges, belonging to a town, within this government, 
with this proviso or exception, that in all matters of debt 
or trespass, of or above the value of five pounds, they shall 
have relation unto and dependence upon the Courts of this 
City, as the other town have upon the several Courts of 
Session to which they do belong, and that the place of their 
present habitation shall continue and retain the name of 
New Harlem, by which name and style it shall be distin- 
guished and known in all bargains and sales, deeds, writ- 
ings and records, and that no person whatsoever should be 
suffered or permitted to erect any manner of house or 
building upon this said island within two miles of the limits 
and bounds aforementioned without the consent and appro- 
bation of the major part of the inhabitants of the said town, 
and whereas the said town lies very commodious for a ferry 
to and from the main, which may redound to the particular 
benefit of the inhabitants, as well as to a general good, the 
freeholders and inhabitants of the said town should, in con- 
sideration of the benefits and privileges therein granted, as 
also for what advantage they might receive thereby be 
enjoyned and obliged at their own proper cost and charge 
to build and provide one or more boats fit for the transpor- 
tation of men, horses or cattle, for which was to be a certain 
allowance given by each particular person, as should be 
then ordered and adjudged fit and reasonable, they, the 
said patentees and their associates, their heirs, successors 
and assigns rendering and paying such duties and acknowl- 
edgments as then were or after should be established by 
the laws of this government, under the obedience of his 
Eoyal Highness, his heirs and successors, as and by the 



165 

said patent remaining upon record in tlie Secretary's OiEce 
reference being thereunto had doth fully and at large 
appear. And whereas the present inhabitants and free- 
holders of the town of New Harlem aforesaid, have made 
their application unto me for a full and ample confirmation 
of their premises to them, their heirs successors and assigns 
forever, in their quiet and peaceable possession. Now 
know ye, that by virtue of the commission and authority to 
me derived and power in me residing in consideration of 
the premises and of the quit rent hereinafter reserved, I 
have given, granted, ratified and confirmed, and by these 
presents do give, grant, ratify and confirm unto Jan 
Delavall, Eesolved Waldron, Joost Van Oblinus, Daniel 
Tourneur, Adolph Meyer, John Spragge, Jan Hendricks 
Brevoort, Jan Delamater, Isaac Delamater, Barent Waldron, 
Johannes Vermelje, Lawrence Jansen, Peter Van Oblinus, 
Jan Dyckman, Jan Nagle, Arent Harmanse, Cornelis 
Jansen, Jackeline Tourneur, Hester Delamater, Johannes 
Verveelen, William Waldron, Abraham Montanie, Peter 
Parmentier, as patentees, for and on the behalf of them- 
selves the present freeholders and inhabitants of the said 
town of New Harlem, their heirs, successors and assigns, 
all and singular the before recited tract, parcel and parcels 
of land and meadow, butted and bounded as in the said 
patent is mentioned and expressed together with all and 
singular the messuages, tenaments, houses, buildings, barns, 
stables, orchards, gardens, pastures, mills, milldams, runs, 
streams, ponds, woods, underwoods, trees, timber, fencing, 
fishing, hawking, himting and fowling, liberties, privileges, 
hereditaments and improvements whatsoever to the said 
tract of land and premises belonging or in anywise appur- 
taining or accepted, reputed, taken or known or used, occu- 
pied and enjoyed, as part, parcel or member thereof, with 
their and every of their appurtenances, always provided 
that nothing contained therein shall be construed to preju- 
dice the right of the City of New York, or any other par- 
ticular right and saving to the said City of New York, and 
their successors forever, and also saving to every particular 
person, his heirs and assigns that have any right, interest 



166 

or estate witHn the limits of tlie said town of New Harlem, 
as well as without the limits of the said town of Harlem, 
full power, liberty and privilege to build, cultivate and 
improve all such tracts and parcels of land as the said City 
of New York now have, or hereafter shall Jiave within or 
without and adjacent to the limits of the town of Harlem 
aforesaid, and also the commonage of the town of Harlem 
above aforesaid, is to be confirmed within the limits afore- 
said, and the right of commonage to extend no further, any 
grant or thing contained herein to the contrary in any wise 
notwithstanding, to have and to hold the said several tracts 
and parcels of land and premises, with their and every of 
their appurtenances, unto them the said J,ohn Delavall, 
Resolved Waldron, Joost Van Oblinus, Daniel Tourneur, 
Adolph Meyer, John Spragge, Jan Hendrick Brevoort, Jan 
Delamater, Isaac Delamater, Barent Waldron, Johannes 
Vermelje, Lawrence Jansen, Jan Dyckman, Jan Nagle, 
Arent Harmanse, Cornells Jansen, Peter Van Oblinus, 
Jacqueline Tourneur, Hester Delamater, Joannes Vervee- 
len, William Waldron, Abraham Montanie, Peter Parmen- 
tier, as Patentees for and on the behalf of themselves, their 
heirs, successors and assigns, to the sole and only proper 
use, benefit and behoof of the said patentees, their heirs, 
successors and assigns forever, to be holden of his most 
sacred Majesty, his heirs and successors in free and com- 
mon soccage, according to the tenure of East Greenwich, in 
the county of Kent, in his Majesty's kingdom of England, 
yielding, rending and paying yearly and every year forever, 
on or before the five and twentieth day of March in lieu of 
all services and demands whatsoever, as a quit rent to his 
most sacred Majesty aforesaid, his heirs and successors, or 
to such officer ox officers as shall be appointed to receive 
the same, sixteen bushels of good winter merchantable 
wheat, at the City of New York. In testimony whereof, I 
have caused these presents to be entered upon record in 
the Secretary's office, and the seal of the province affixed, 
this seventh day of March, 1686, and in the third year of 
his Majesty's reign. 

Tho. Dongan. 



167 

May it please your Excellency. 

The Attorney General hath perused this Patent, and finds 
nothing contained therein prejudicial to his masters inter- 
est. 
Examined, 23rd. March 1686. Ja. Graham. 

State of New York, 
Secretary's Office. 

I have compared the preceding with certain letters patent 
as of record, in this office, in book of patents. No. 6, page 
192 &c. and do certify that the same is a correct transcript 
therefrom, and of the whole of said patent. 
Albany, Eeb. 23, 1836. Arch'd Campbell, 

Dep. Secretary. 

The foregoing patents are contained in "Title to Har- 
lem Commons and Louvre, Abstracts". The spelling of the 
names of the patentees in some instances are corrected 
so as to correspond to those given in Biker's History of 
'Harlem. 



APPENDIX D. 

Opinion of Richard O'Oormau, Esq., Counsel to the Corporation 
of New York. 

Law Depabtment, 
Office of the Counsel to the Corporation, 
New Yobk, August 1st, 1870. 

Hon. Eich'd B. Connolly, Comptroller, &c.: 

Dear Sie : — 

I have the honor to acknowledge the receipt of your 
communication, in which you request my opinion whether 
certain lands in the Harlem Eiver between 91st and 104th 
Streets, and 107th and 108th Streets, extending to the 3d 
Avenue, are owned by the city under the provisions of any 
of the charters and grants vesting the city with the title to 
land under water. 



168 

In answer thereto I beg leave to say: 

A claim on behalf of the city to the lands in question 
can only be urged under the 3d section of the Dongan 
Charter of 22d of April, 1686, which grants to the Corpo- 
ration of the City of New York all the waste, vacant, unpat- 
ented and unappropriated lands lying and being within the 
City of New York and on Manhattan Island, extending and 
reaching to the low water mark, &c., not theretofore given 
or granted by any of the former Governors or Lieutenants 
or Commanders-in-Chief, or by any of the former Mayors 
or Deputy Mayors, or Aldermen of the said city. 

I am of the opinion that this grant did not convey the 
land in question for the following reasons, viz.: 

1st. In May, 1666, Governor Nicoll granted and con- 
veyed to "the Inhabitants and Freeholders of Harlem," 
their successors and assigns forever, a large tract of land 
(embracing the land in question) by the following descrip- 
iont : " All the land in Manhattan Island lying eastward 
and northward of a line commencing on the East Eiver at 
the saw mills over against Hogges or Vercher's Island, and 
running due north until it strikes the Hudson Eiver at the 
round meadows, together with all soils, meadows, creeks, 
marshes, waters, fishing, &c. 

"Hogges Island is now called Blackwell's Island." 
Hoffman's Title of Corporations, Vol. 1, page 147. 

Another patent was made to the said Inhabitants, &c., of 
Harlem, on the 11th of October, 1666, granting the same 
privileges and the same lands as were embraced in the 
former patent (of May), but reserving payment of certain 
duties, which did not, however, impair the force of the 
granting words of the patent. 

On the 7th of March, 1686, Governor Dongan confirmed 
these patents or grants to the said inhabitants, &c., of 
Harlem. 

See Book of Patents N'o. 6, page 192, in office of Sec'y 
of State. 



169 

The boundaries and division line between the common 
lands of the then town of Harlem and the then City of New 
York were definitely settled under the colonial Act of 1774. 

Laws of 1774, 1775, pages 171, 172 and 173. 
Also Valentine's Laws, page 1156. 

The division line began on the East Eiver, about 74th 
Street, crossed 2d Avenue at 79th Street, and struck the 
Hudson Eiver about 129th Street. 

2d. The lands in question are marsh or meadow lands 
lying along the Harlem Eiver, above the original high water 
line, and not between the lines of high and low water. 

They are designated as marshes or meadow land on the 
old maps of the city. 

Yide Commissioner's Map, 1807. 
Blue Book Maps. 

Dripp's Map of the City of New York, 1867, compiled 
from surveys of Eandall and Blackwell. 

The grants to the said " Inhabitants, &c., of Harlem," in 
express terms, included all marshes, meadows, creeks and 
soils, and in my opinion embraced all lands, whether marsh 
or meadow lands, to the ordinary line of high water of the 
East or Harlem Elvers, although the same were sometimes, 
and at unusually high tides, partially or wholly submerged. 

Rogers v. Jones, 1 "Wendell, 237. 

The terms " Marshes and Meadows " used in the NicoUs 
charter of 1666, seems to me to be an apt and proper desig- 
nation of land situate as are the lands in question. 

These lands were claimed by the said inhabitants, &c., of 
Harlem, under the grants and patents above mentioned, 
and were conveyed by them in the year 1672. 

The competency of the inhabitants and freeholders of 
Harlem to take, hold and convey land was recognized and 
approved by the Colonial Legislature in the enactment of 
the Laws of 1774 above referred to, appointing Commis 



170 

sioners to define the boundaries thereof, and subsequently 
by the Act of 1820, whereby the State Legislature provided 
that the land acquired by and under the patents and grants 
above mentioned, and not previously conveyed by them, 
shall be sold for the benefit of the inhabitants, &c., of 
Harlem. 

Chapter 115, Laws of 1820. 

I am unable to discover in the various charters of the 

city or in any of the grants of lands under water to the 

corporation, any provisions which vest in the Mayor, &c., 

of the City of New York, any title to the land in question. 

Yours truly, 

Richard O'Goeman, 
Counsel to the Corporation. 



APPENDIX E. 

Opinion of William C. Whitney, Esq., Counsel to the Corporation 
of New Tork. 

Law Department, 
Office of the Counsel to the Corporation, 
New York, Noyember 10, 1880. 

Hon. John Kelly, Comptroller, etc.: 

Sir : — I have received your letter of November 4th 
transmitting the application made to the Commissioners of 
the Sinking Fund, by William F. Eussell, Eeceiver of the 
Sixpenny Savings Bank, for a release of whatever claim, if 
any, the City of New York may possess to certain lands, 
formerly under water, in certain streams, subject to the flow 
of tide water, running through the block bounded by 101st 
and 102d Streets and the 2d and 3d A.venues, which 
streams have been filled up by the improvements made on 
the said premises, leaving no vestige thereof. 



171 

Tou then ask my advice as to tlie rights of the City in 
this land, and what action, if any, may legally be taken by 
the Commissioners of the Sinking Fund to grant the relief 
asked for in said application. 

I am aware of only one source from which it may be 
supposed that title to the lands in question has been derived 
by the Mayor, Aldermen and Commonalty of the City of 
New York, namely, the Dongan Charter, granted the 27th 
of April, 1686, by which the Sovereign "gave and granted 
unto the Mayor, Aldermen and Commonalty of the City of 
New York, all the waste, vacant, unpatented and unappro- 
priated lands lying and being within the said City of New 
York, and of Manhattan Island aforesaid, extending and 
reaching to the low water mark in, by and through all parts 
of the said City of New York and Manhattan Island afore- 
said, with all the rivers, rivulets, coves, creeks, ponds, 
waters and water-courses, in the said City and Island, or 
either of them, not heretofore given and granted by any 
of the former governors, lieutenants, or commanders-in- 
chief, under their, or some of their hands and seals, or seal 
of the Province, or by any of the former Mayors or Deputy 
Mayors and Aldermen of the said City of New York, to 
some respective person or persons, late inhabitants of the 
said City of New York or Manhattan Island, or of other 
parts of the said province." 

The grant thus made was subsequently confirmed by the 
Montgomerie Charter, January 15th, 1730, and is suffi- 
ciently broad to include the lands in question if such lands 
had not theretofore been granted by competent authority. 

Such a prior grant is found in the patent, dated May, 
1666, granted by Richard NicoUs, Governor, unto the free- 
holders and inhabitants of Harlem. 

In said grant it is provided that the extent " of their 
bounds shall be as follows, viz.: That from the west side 
of the fence of the said township a line be run due west 
four hundred English poles without variation of the com- 
pass, at the end whereof another line being drawn to run 
north and south with the variation, that is to say, north to 
the end of a certain piece of meadow ground commonly 



172 

called tlie Bound Meadow, near or adjoining the Hudson 
Eiver, and south to the saw mills over against Hogg Island, 
commonly called Forkins Island, it shall be the west bounds 
of their lands, and all the lands lying and being within 
the said line so drawn north and south, as aforesaid, east- 
ward to the town and Harlem River, as also to the North 
and East Elvers, shall belong to the town, together with 
all the soils, creeks, quarries, woods, meadows, pastures, 
marshes, waters, fishings, huntings and fowling, and all 
other profits, commodities, emoluments and hereditaments 
to the said lands and premises within the said line belong- 
ing, or in anywise appertaining, with their, and every of 
their, appurtenances, to have and to hold all and singular 
the said lands, hereditaments and premises within their, 
and every of their, appurtenances and every part and par- 
cel thereof, to the said freeholders and inhabitants, their 
heirs, successors and assigns, to the proper use and behoof 
of the said freeholders and inhabitants, their heirs, succes- 
sors and assigns forever." 

Vide Liber No. 1, page 57, Becord of Patents, Office 
of the Secretary of State. 

The above-mentioned patent was confirmed by a further 
patent, granted by Governor' Nicolls, October 11, 1666. 

Yide Book of Patents No. 4, page 57. 

The patent was further confirmed by grant made by 
Thomas Dongan, Captain-General, etc., dated March 7, 
1686, recorded in Book of Patents No. 6, page 192. 

The last-named- patent confirmed to the "freeholders and 
inhabitants of the said town of New Harlem, their heirs, 
successors and assigns, all and singular the before-recited 
tract, parcel and parcels of land and meadow, butted and 
bounded as in the said patent is mentioned and expressed, 
together with all and singular the messuages, tenements, 
houses, buildings, barns, stables, orchards, gardens, pas- 
tures, mills, mill-dams, runs, streams, ponds; woods, under- 
woods, trees, timber, fencing, fishing, hawking, hunting and 



173 

fowling, liberties, privileges, hereditaments and improve- 
ments whatsoever to the said tract of land and premises 
belonging or in anywise appertaining or accepted, reputed, 
taken or known or used, occupied and enjoyed as part or 
member thereof, with their and every of their appurten- 
ances." 

It is, therefore, plain that the lands and appurtenances 
granted to the freeholders and inhabitants of Harlem were 
saved and excepted from the operation of the grant made 
by Governor Dongan to the Mayor, Aldermen and Com- 
monalty of the City of New York on the 27th day of 
April, 1686. 

Subsequently to these grants controversies arose between 
the freeholders and inhabitants of Harlem and the City 
of New York in relation to the boundaries of the land 
acquired by each, under their respective grants. 

In order to settle and determine such controversies, an 
Act was procured to be passed on the 24th day of March, 
1772, by which Commissioners were named to fix upon and 
settle, and ascertain the boundaries, between the township 
of Harlem and the lands granted to the Mayor, Aldermen 
and Commonalty of the City of New York. 

The proceedings of the Commissioners under such Act 
were confirmed by an Act passed April 3, 1775. 

Vide Laws of New York, 1774 and 1775, pp. 171 and 172. 

It is understood that Hogg Island, named in the grant, 
is now called Blackwell's Island. 

Vide Hofiman's Estate and Eights of the Corporation, 
Vol. I., p. 147. 

The report of the Commissioners is recorded in the Reg- 
ister's office in the City of New York, wherein the extent 
and boundaries of Harlem Commons is set out by them. 

The division line began on the East River, about 74th 
Street, crossed 2d Avenue at or near 79th Street, and struck 
the Hudson River at about 129th Street. 

It seems, therefore, that the premises in question are 
included within the grant to the freeholders and inhabit- 



174 

ants of Harlem, and that the Mayor, Aldermen and Com- 
monalty of the City of New York have acquired no title 
thereto under their charters. 

The title of the freeholders and inhabitants of Harlem 
to the common lands acquired under the above-recited 
grants, Was transferred, by Act of the Legislature passed 
March 28, 1820, to trustees therein named and declared to 
be trustees in behalf of the said freeholders and inhabit- 
ants of Harlem, and seized in fee simple of the common 
lands, in trust, however, for the said freeholders and inhab- 
itants, and invested with power to take possession of the 
said common lands, etc. 

The Act further confers power upon the said trustees to 
sell the lands, and makes direction as to the disposition of 
the proceeds of suijh sale. 

The validity of the last-recited ^Act has been passed upon 
by Chancellor Kent, in an opinion given by him August 23, 
1825, in relation to the title of a purchaser from said 
trustees. 

I am, therefore, of the opinion, and advise you, that the 
Mayor, Aldermen and Commonalty of the City of New 
York have no right in the lands in question, and therefore, 
no action in relation thereto, by the Commissioners of the 
Sinking Fund, would be legal or proper. 
Yours respectfully, 

(sgd) William C. Whitney, 

Counsel to the Corporation. 



APPENDIX F. 

Opinion of the Hon. TilLaxray Hoffman relating to Harlem Mill 

Creek. 

Mr. Voorhis is the owner of a piece of ground, lying 

between the Second and Third Avenues, on the northerly 

side of 108th Street stretching toward 109th Street. I shall 

assume for this opinion, that at the time of the Patents, 



175 

Deeds and Statutes hereafter mentioned, down to 1775, a 
portion of the ground in question lay between high and low 
water mark, affected by the flux and reflux of the tide com- 
ing from an arm of the sea. But when the locality is fully 
understood, this proposition may admit of doubt. The 
exact position of the parcel must be more definitely pointed 
out. 

The general course of Harlem Eiver from Benson's Point 
near 106th Street to about 117th Street is northerly. About 
107th Street a body of water sets up from the river which I 
call Harlem Biver. It is sometimes marked as the East 
Eiver. It stretches from the river westerly and was known 
as Harlem Creek, sometimes Montanya's Creek. 

About midway between 107th and 108th Streets a cove 
sets up. northwardly from the general course of this creek 
and extends toward 109th Street. At the extremity of this 
cove is the strip of land in question covered at high water. 

On the northern line of 108th Street, and between Second 
and Third Avenues, was a mill, a mill pond toward Third 
Avenue, and the water leaving the mill ran into this cove.- 
There was a mill-dam just beyond Third Avenue. 

This mill had been projected in 1661, when the Montan- 
ya's family petitioned the authorities of Harlem for certain 
privileges for families about to settle near the site. It was 
ferected before 1747, but when I have not traced. It is 
stated that small vessels or barges could come up to the 
mill at ordinary high water. 

In the year 1837, the Second Avenue was opened accord- 
ing to law, and in the year 1849 was graded and traveled. 
Culverts were made at various points, but it is plain that 
there was no longer any flux or re-flux of the tide at the 
place in question, and navigability of any description was 
destroyed to westward of Second Avenue. 

I proceed to state the patents, &c., bearing upon the 
question, on the fact as assumed. The Patent of Governor 
NicoUs, of May, 1666, was entitled "A Patent granted to 
the Inhabitants and Freeholders of Harlem, alias Lancas- 
ter, upon the Island of Manhattan." It contained a grant 
as follows : I likewise grant unto the freeholders and inhab- 



176 

itants in general, their successors and assigns, the privileges 
of a town. The extent of their bounds shall be as follows, 
vis!.: From the west side of the fence of the said township, 
a line be run due west four hundred English poles, without 
variation of the compass, at the end, whereof another line 
being drawn to north and south with the variation, that is to 
say, north to the very end of a certain piece of meadow 
ground, commonly called the Round Meadows, near or 
adjoining to Hudson River, and south to the saw mills over 
and against Hogg Island, commonly called Ferkins Island, 
it shall be the west bounds of the said land and all the 
lands lying and being within the said line so drawn north 
and south as aforesaid, eastward to the town and Marlaem 
Hiver and also to the North and East Rivers, shall belong to 
the town, together wi^ih all the soyles, creeks, quarries, 
woods, meadows, pastures, marshes, waters, fishing and all 
other profits, hereditaments, &c. 

The confirmation by Mcolls, of October, 1667, varies in 
these particulars : The island is called Vercher's or Hogg 
Island, in the Sound or East River, and after the words 
Harlem River, above italicised, is added : " or any part of 
the said river on which this island doth abut." 

This second patent is to Thomas Delavall and others as 
patentees for themselves and associates, the freeholders 
and inhabitants of the town. 

The confirmation by Dongan, of the 7th of March, 1687, 
is also to the patentees, and adds the words : Mills, mill- 
dams, runs, streams, ponds, wood, &c. The Round Meadow 
of the Patent was a lot of salt meadow just north of Man- 
hattanville, near the foot of ] 29th Street. 

It is needless to attempt an explanation of these boun- 
dary lines. The settlement under the Act of 1772, ratified 
in 1775, must be taken as defining them, as matter of fact. 
But we notice that the rivers named are the Hudson River, 
the East River and the Harlem River. The Verchen 
(Blackwell's Island) lies in the East River, and we may 
conclude what other proofs show, that the East River 
proper ended at about 89th Street, opposite Middle Reef, 
and Harlem River was the arm beyond Grade's Point. 



177 

Here it seems was the point of division according to grant 
and records. We notice also that it is the river to which 
the grant extends. 

On the 10th of March, 1772, a Bill was brought from the 
Assembly to the Legislative Council entitled "An Act to 
settle and establish the line or lines of a division between 
the City of New York and the township of Harlem, so far 
as concerns the right of soil in controversy. On the 12th 
March it passed the Council, and on the 24th was approved 
by the Governor. The boundary having been settled, an 
Act was passed on the 3d of April, 1775, "To confirm the 
proceedings of the Commissioners heretofore appointed by 
a law of this colony, to settle the line or lines of division 
between the City of New York and the township of Harlem, 
and for establishing the boundary line bebween said city 
and township." 

The statute of 1772 provided that the settlement of the 
line when recorded shall operate as a total extinguishment 
of all claim, title and interest of the township, and all per- 
sons, &c., in and to the lands to the southward and west- 
ward of such division line, and shall also operate as a total 
extinguishment of all the right, title and interest of the 
City of New York to all lands, &c., which shall lie to the 
northward and southward of the said division line so to be 
ascertained and run out, the lands lying and being between 
high and low water mark within the City of New York to 
the northward and eastward of the said division line only 
excepted. 

The City of New York, jurisdictionally at any rate, 
included the lands to low water mark, even on the West- 
chester side of Harlem Eiver. 

The Statutes of 1775 ratified and confirmed the proceed- 
ings of the Commissioners, and we understand that the 
boundaries thus adjusted have remained unaltered and 
unquestioned since. The line ran by the Commissioners 
commenced on the East Eiver at 74th Street, crossed the 
Second Avenue at 79th Street, the Third Avenue at 81st 
Street and struck the Harlem Biver near 129th Street. 

Another and most important fact is the establishment of 



178 

the title to the parcel in question. From the various deeds, 
abstracts of which are hereto annexed, maps, survey, old 
records and documents and statements of persons acquain- 
ted with the antiquities of Harlem, I am fully satisfied that 
this parcel was included in the partition which took place 
in 1711, 1712, among the inhabitants, freeholders and the 
representatives of the Patentees. It deserves especial 
notice that Thomas Delavall was one of the Patentees, that 
each Patentee was to have twelve acres (sixty in all) and 
that in the deed of 1747, the parcel conveyed to Benson is 
called Delavall's land. Upon these documents and Statutes 
I consider, 1st. That the best construction of the Patents 
and confirmation is that the strip between high and low 
water (the tideway as it is conveniently called) passed to 
the freeholders, &c., of Harlem. The grant embraces 
"lands, soyles, waters, streams, meadows, marshes, runs, 
creeks and ponds." It would be difiicult to get together 
terms which would more fully embrace anything of land, of 
water, and of any combination of the two. The word creek 
is as pertinent to a body of salt water as to one of fresh. 
In the Statute 5 and 6 Edw., 6th chap. 14, any one bringing 
any wares, &c., toward any city, port, haven, creek or road 
of the realm from any port beyond sea should be subject to 
a j)enalty as provided. So in the Statue 5 Eliz., chap. 5, § 8, 
it is forbidden to bring fishing vessels owned by strangers 
into any port or creek.of the realm. 

It is defined in the Encyclopedia a port of a haven where 
anything is landed from the sea. So in Cunningham's 
Law Dictionary it is a port of a haven where anything is 
landed from the sea. And in Henry 4, chap. 40, we have : 
in great ports of the sea, and not in Crykes or small 
" arrivals." "We can here draw a natural, and we think, legal 
distinction between the Eiver proper and a creek of it. 
The former is defined by the general course (filum) of the 
body of the stream, and such course is from point to point, 
where there is an indentation into the land, properly a cove. 
The latter is that indentation. And we could very consist- 
ently hold that the land under water, within the cove 
between high and low water, passed, but not outside of it. 



179 

This view wotild be tenable even if that was an indentation 
from Harlem Eiver ; a fortiori when from Harlem Creek. 
But the creek itself, we contend, passed, and the case is 
then much stronger. 

Again, we have the words "waters, lands and soyles." 
What is the meaning of this last word? The Lord Chan- 
cellor, in the Attorney General vs. Johnson (12 Wilson, 
Eep. 95) says, " A grant includes the water between high 
and low water mark, if it covers the soil." The right of 
wreck, says Lord Hale, affords a strong presumption that 
the soil is intended to pass (cited Hoffman's Law of the 
Corporation, etc., Appendix 108). 

So in the important case of Logen vs. Jones, 1 Wendell, 
it is said, " The King has the property tarn aquae quam soli." 
So in the Rivers which have the flux and re-flux of the sea. 
But by grant or prescription the subject may have the 
interest in the water and soil of navigable rivers. 

Instances are cited by Lord Hale of words in a grant 
sufficient to convey this right. But as the river is the 
boundary, there could be no pretence for carrying it beyond 
ow water mark. Thus the right of the State is retained to 
the navigable rivers in its true sense, and effect is given to 
the word soyle, which otherwise would convey nothing 
which is not conveyed by other words. There is, then, 
legal ground for holding that the slip between high and 
low water passed by the patents, and particularly at the 
locality of the property in question. 

But the Act of 1772, and the confirmatory Act of 1775, 
create a difficulty. It is obvious that there was a contro- 
versy as to the rights of soyle between Harlem and the Cor- 
poration of New York ; and we are to remember that, under 
the charters of Dongan 1686, and of Montgomery 1730, the 
corporation became entitled to all waste, vacant and 
unpatented lapd on Manhattan Island reaching to low 
water mark. (See Hoffman's Treatise, vol. 1, p. 180, etc.) 

Here then is an express Legislative enactment that the 
title of New York shall not be extinguished by the Com- 
missioners, adjustment of bounds, in the parcels between 
high and low water within the City. The City limits 



180 

included all, even to low water on the Westchester side. 
Then the fact that the parcel in question was comprised in 
the deeds consequent upon the partition of 1711 is most 
important. A title became vested in an individual before 
the statutes of 1772 and 1775. The source of such title 
was either old Dutch Ground Briefs before 1666, in which 
case the Patents of NicoUs operated as confirmation, or a 
direct grant by the proper officers of Harlaem under the 
patents, (of which there was an example in February 1672) 
or a confirmatory grant under the Patents of an older title. 
In Delavall's case the conclusion is next to a certainty, that 
he took under the Patent whether he had any title before 
or not. Then his title goes back to 1747, at least, and 
the action of the Legislature in the Statutes referred to, was 
wholly inoperative to divest a vested right, interest or 
title. 

Let us concede which admits of strong argument, that it 
amounts to an express legislative declaration that the title 
was in the City of New York, not merely that the adjust- 
ment should not impair whatever title they had ; concede 
also that it was competent for the authorities of Harlaem to 
compromise the interests of the town in this respect : To 
restrict any right the town and inhabitants had to the tide- 
way. This could only be for the future. It is impossible 
that the compromise or surrender could in any form or 
manner prejudice or affect the right of a grantee acquiring 
title before the arrangement and getting it under the 
Patents. The quasi corporation might bind for all future 
grants, but could not take away rights conferred under pre- 
vious ones. 

Thus we are come back to the question whether the 
several patents covered the soil under water at the place in 
question. If any conclusion had been that the strip in 
question could not be considered as having passed under 
the Patent, then it did pass under the charter to the Cor- 
poration of the city giving them the waste, vacant, 
unpatented lands around the Island to low water mark. 
This grant and its extent is discussed in Hoffman's Treat- 
ise, (Vol. 1, p. 183.) And it is considered that it covers the 



181 

tideway, even vS'here tlie upland adjoining was vested in 
another by a grant before 1686, but not comprising the 
tideway. But, the Corporation in exercise of the power 
conferred by statutes, a portion of the power of eminent 
domain delegated to them, have opened the Second Avenue 
and effectually destroyed the navigability of the cove at this 
place in question, and all the advantages once arising from 
it. 

Now on the assumption that the title was in the Corpora- 
tion, this was an inquiry to interest or right, to be claimed 
and paid for, or compensated by benefits. The lands which 
clearly passed were subject to the exercise of this power of 
opening avenues and streets for public use ; and the bene- 
fit arising from the flow of water at the place, and every 
possible interest in the soil was, of course, as liable. Even 
the late important case of Gates v. The City of Milwaukee 
is entirely consistent with this view. (See Gerard's Treat- 
ise, p. 14). Upon the whole I conclude that the title and 
right to the strip in question did pass under the patents, 
was vested before or in the year 1747, in one claiming under 
the patents could not be affected by the statutes of 1772 
and 1775, and is now vested in Mr. Voorhis. 

New York, March 13, 1873. (Signed) Mueeay Hoffman. 



APPENDIX G. 

Second Avenue Opening — Extracts from Beport of Commissioners. 

1836, Sept. 23. Petition filed for appointment of Commis- 

sioners, opening from 86th to 109th Street. 

1837, Apl. 5. Eeport and additional Report of Commis- 

sioners, opening, 86th to 109th Street. 

Extract from Eeport of Commissioners, in the matter of 
opening Second Avenue, from 86th to 109th Street in the 
Twelfth Ward of the City of New York. (E. Emmet, Att'y) 
" And we, the Commissioners, do further report, that all 



182 

that certain lot, piece or parcel of land situate, lying and 
being in the 12th ward of said City and bounded and con- 
taining as follows, to wit : Beginning at the southwesterly 
corner of 107th Street, as established by law and the Second 
Avenue as the same is to be opened, and running thence 
southwesterly along the northerly line or side of the Second 
Avenue as the same is to be opened one hundred feet ten 
inches, to land of James Chesterman; thence southeast- 
arly along the same fifty feet to a line drawn through the 
centre of the Second Avenue as the same is to be opened ; 
thence northwesterly along the same fifty feet to the north- 
erly line or side of the Second Avenue as the same is to 
be opened, -and running thence southwesterly along the 
same thirty feet to the place of beginning, is also required 
for the purpose of opening the said Avenue as aforesaid. 

"And we, the said Commissioners, do further report, 
that William P. Hallett is seized in fee of, in and to the 
last described piece or parcel of land. 

"And we, the said Commissioners, do further report, 
that the said William P. Halleck is also seized of, in and to 
all that certain other lot, piece or parcel of land situate, 
lying and being northwesterly of and adjoining the last- 
described piece or parcel of land required for the purpose 
aforesaid, and bounded and containing as follows, to wit : 
Beginning at the southwesterly corner of 107th Street, as 
established by law and the Second Avenue, as the same is 
to be opened, and running thence southwesterly along the 
northwesterly line or side of the Second Avenue, as the 
same is to be opened, one hundred feefand ten inches, to 
the northeasterly line or side of land of James Chester- 
man ; thence nothwesterly along the same three hundred 
and five feet to a line drawn at the half distance between 
the Second Avenue as the same is to be opened and the 
Third Avenue, as established by law ; thence northeasterly 
along the same one hundred and thirty feet ten inches, to 
ix line drawn through the centre of One Hundred and 
Seventh Street as established by law ; thence southeasterly 
tliree hundred and five feet to the northwesterly line or 
side of the Second Avenue as the same is to be opened, 



183 

and running thence southwesterly along the same thirty 
feet to the place of beginning. 

" And we, the said Commissioners, do further report, that 
we have assessed the benefit and advantage to the said 
William P. Hallett from the said opening of the Second 
Avenue as aforesaid, by and in consequence or relinquish- 
ing his interest in the last-described piece or parcel of 
land required for the purpose aforesaid over and above the 
loss and damage to him by reason of his interest in the 
last-described adjoining piece or parcel of land to amount 
to the sum of $19. 

" And we, the said Commissioners, do further report, that 
all that certain lot, piece ox parcel of land situate, lying and 
being in the Twelfth Ward of the said city, and bounded 
and described as follows: Beginning at the northeasterly 
corner of Second Avenue, as the same is to be" opened, and 
One Hundred and Seventh Street as established by law, 
and running thence northeasterly along the southeasterly 
line or side of Second Avenue, as the same is to be opened, 
about thirty-six feet be the same more or less, to the centre 
of Harlem Creek; thence northwesterly along the same 
one hundred feet to the northwesterly line or side of Second 
Avenue as the same is to be opened ; thence southwesterly 
along the same sixty-six feet be the same more or less, to a 
line drawn through the centre of 107th Street, as the same 
is established by law ; thence southeasterly along the same 
one hundred feet to the southeasterly line or side of the 
Second Avenue as the same is to be opened, and running 
thence northeasterly along the same thirty feet to the place 
of beginning, is also required for the purpose of opening 
Second Avenue, as aforesaid. 

"And we, the said Commissioners, do further report, that 
Charles H. Hall is seized in fee of, in and to the last-de- 
scribed piece or parcel of land. 

" And we, the said Commissioners, do further report, that 
the said Charles H. Hall is also seized in fee of, in and to 
all that certain other lot, piece or parcel of land situate, 
lying and being northwesterly of and adjoining the last- 
described piece or parcel of land, and bounded and con- 



184 

taining as follows, to wit : Beginning at the northwesterly 
corner of the said Second Avenue as the same is to be 
opened, and 107th Street as established by law, and running 
thence northeasterly along the northwesterly line or side 
of the Second Avenue as the same is to be opened, about 
thirty-six feet be the same more or less, to the centre of 
Harlem Creek ; thence northwesterly along, the same three 
hundred and five feet to a line drawn at the half distance 
between the Second Avenue as the same is to be opened, 
and the Third Avenue as established by law, and running 
thence southwesterly along the said line sixty feet be the 
same more or less, to a line drawn through the centre of 
107th Street as established by law ; thpnce southeasterly 
along the same three hundred and five feet to the north- 
westerly line or side of the Second Avenue as the same is 
to be opened, and running thence northeasterly along the 
same thirty feet to the place of beginning." 

(Then f oUows another description on 107th Street between 
First and Second Avenues.) 

" And we, the said Commissioners, do further report, that 
we have estimated and assessed the benefit and advantage 
to the said Charles H. Hall from the said opening of the 
Second Avenue as aforesaid, by and in consequence of 
relinquishing his interest in the last-described piece or 
parcel of land required for the purpose aforesaid, over and 
above the loss and damage to him by reason of his interest 
in the last-described adjoining piece or parcel of land, to 
amount to the sum of Four dollars." 



185 



APPENDIX H. 

Extract from Proceedings for the Opening of 106th and 107th 
Streets between the Fifth Avenue and the East Biver, New 
York, 1871. 

1871, Aug. 2, Petition and order filed appointing Com- 

missioners. 

1872, Dec. 11, Eeport of Commissioners, 1 Vol. Benefit 

and damage. 
1872, Nov. 8, Order confirming Eeport of Commissioners. 

Extract for Assessment List. 
Assessment for Benefit. 
Commencing on the Southwest corner of 107th Street 
and Third Avenue. 



"Ward 
Block. 


No. 
lot. 


Map 

No. 






Owners. 


Benefit, 
Dol. Cts, 


310 


45 


448 


P. 


N. 


Spofford. 


52 




46 


449 






11 


21" 




47 


450 






C( 


13 




48 


451 






C( 


6 




44 


452 


H 


.P. 


, McGown. 


25 




43 


453 






(( 


25 




42 


454 






It 


25 




41 


455 






n 


25 




40 


456 






It 


25 




39 


457 






tl 


25 




38 


458 






tt 


25 




37 


459 






It 


25 




36 


460 


Estate of E. Shields. 


25 




35 


461 






tt 


25 




34 


462 


L. 


Martin. 


25 




33 


463 






ft 


25 




32 


464 


J. 


N. 


Ballister. 


25 




31 


465 








25 




30. 


466 








25 




29 


467 








25 




28 


468 








48 




27 


469 








18 




26 


470 








10 




25 


471 








5 



See extract of Map filed with Commissioners' Eeport. 



IN"D E X. 



Abbott, Ch. J. : Opinion in Vooght v. Wynch (2 B. & A.), as to 

navigable waters 47 

Abstract of Title : To McGown's marshes 1, 85, 102, 103 

Opinions as to title 106 

To Harlem Creek and Mill Pond 107 

Opinion as to title 138 

Allen, Senator : Opinion in Canal Commissioners v. The People 

(5 Wend., 453) _ 55 

The common law as it existed in 1775 cannot be altered so as to 

affect grants existing prior to that date 55 

American Authorities : On the subject of tidal waters not har- 
monious 57 

Decisions criticising the supposed common law doctrine as to 

the ebb and flow of the tide considered 58, 59 

Andros, Governor : Proclamation by, November, 1674 4 

Archer, John, of Yonkers Land : Claims some of the meadows in 

Harlem River 85 

Appendix A 130, B 137, C 156, D 167, E 170, F 174, G 181, H 185 
Bailey, J.: Opinion in Rex v. Montague (4 B. & C, 601), ebb and 

flow of the tide, not the test of a river being navigable 46 

In Vooght V. Winch (2 B. & A.), obstruction to navigable 

river, twenty years effect of 47 

Barents Islands . 14, 86 

Bay of Hell Gate 1 

Description of .-85, 86 

Meadows in, classified ib. 

Title to ib. 

Beardsley, Senator: Opinions of, in Ex parte Tibbets (5 Wend., 

433) 59 

Benson, Johannes : Grantee of Bogert of Montagne Point farm 98 

Benson, Samson : Son of Johannes, acquires title to Montagne's 

Point farm 99 

Benson, .Samson : Great grandson of Johannes and father of Mar- 
garet- McGown - 1 

Benson, Benjamin : Son of Samson, and grandson of Johannes, 
acquires title to Montagne's Pointfarm, also to the Mill Pond 

and farm on northerly side of Harlem Creek 100 

Benson, Peter B. : Son of Benjamin, acquires title to the Mill 

Pond and farm on the northerly side of Harlem Creek 114 

Will of - 118 



188 INDEX. 

Benson, Benjamin P. : Son and one of the devisees of Peter B 119 

Benson, Wilhelmina : Daughter of Benjamin P., and wife of Peter 

Van Arsdale '■i" 

Blackstone, Sr. , Wm : Sources of municipal law 33 

Navigable rivers 44 

No reference to ebb and flow of tide as a test of a river being 

public 45 

'Variant decisions tested by 67 

Blackburn, Ld. : Opinion of, in Bristow v. Cormioan (3 App. Cas., 
641), as to whether the crown has a prima facie title to soil 

of alake --. 49 

Bracton : As to source of title to sea shore j. 33 

Breen v. Lock (11 N. Y. State Reporter, 388) : Compared with 

Roberts v. Baumgarten 63 

Involved title to soil to one of the extinct Harlem creeks and, 

in effect, held that it was not a navigable river 68 

British : Claims to New Netherland considered, founded on dis- 
covery and not on conquest 2 

Occupation by in 1664 ib. 

Condition of Dutch titles atthat time ib. 

Broadhead: History State N. Y., as to forcible entry of British 8 

Reoccupatiou by Dutch ib. 

Bronk'sKiU - 86 

Bronson, J. : As to Indian titles 9 

Opinion of, in Child v. Starr (30 Wend., 149) 59 

The ebb and flow of the tide furnishes an imperfect standard 

for determining what rivers are navigable 59 

Campbell, Ld. : Opinion in McCannon v. Sinclair (Ellis & Ellis R., 

54). - 49 

Canal Street Creek - '. 84 

Carteret, James: Deed to, from Thos. Delavall 109 

Carteret, Elizabeth : Daughter of James Carteret, married to Philip 

Pipon - 110 

Civil Law : Never in force in New York 8 

Commons, Harlem: Sale of 14 

Common Law : Applicable to the construction of Dutch grants 8 

Doctrine of, as to the shares of the seaandmarshes 43 

As to navigable waters,. . . 44 

Common Lands : Division of, in 1691 l._ 92 

Commissioners : Appointed to make division of common lands 93 

Conclusion : Doubts in regard to titles to Harlem meadows and 

creeks wholly groundless 106 

Title, as derived through the Montagues, John Louwe Bogert, 
Van Oblinus, De Lamater and Town of Harlem, appears to be 

good and valid. 106 

As to the title of the McGown marshes 106 

Constitution of 1777 54 



INDEX. 189 

Construction of Title of Samson Benson, Sr., to the Montagne 

Point farm _ 99 

No break in the chain of title ib. 

Conveyances : See Deeds. 

Corlear's Hook 19 

Cowen, J. ; Opinion in Luce «. Carley (24 Wend., 453) 116 

Land marks on banks of river not meant to stand on precise 

water line, but merely used to fix the termini of line ^116 

Creeks of Ports _ 39 

Prima facie public streams.. 41 

A creek capable of becoming a port, but not so in fact, is not 

therefore prima /acie public __ 41 

Creeks of the the sea __ 43 

Curler's Hook, or Van Ken] en's Hook : Account of settlement of.. 20 
Davis, J. : Opinion of, in People v. Canal Appraisers (33 N. Y., 461), 

that ' ' navigable rivers ' ' means navigable in fact 63 

Deeds: Director-General Kief t to Sieur Johannes La Montagne... 31 

Construed _ 31 

Montagues: Of Montague's Point and flats.. 21 

Town of Harlem to John Montagne, Sr., of Montagne' s Point 

and meadows 30 

Town of Harlem to John Louwe Bogert, of lot 35 of common 

lands in the Bay of Hell Gate 91, 93 

Town of Harlem to John De Lamater, of lot 36 of common 

lands in the Bay of Hell Gate .... 93 

John Lowesen Bogert to Johannes Benson, of Montague's Point 

and meadows ..' 95 

Maria, widow of John De La Montagne, of Montague's Point 

and meadows 90 

Samson Benson (son of Johannes) : Heirs of, to Benjamin Ben- 

»son, Montague's Point and meadows _. 99 

Benjamin Benson to Samson Benson (his son) : Montague's 

Point and meadows 101 

Construed... 103 

Margaret McGown to Samson B. McGown : Part of the mead- 
ows in the Bay of Hell Gate 103 

Margaret McGown to^ Edward Sandford : Eesidue of the 

meadows 103 

Thomas Delavall to James Carteret and Frances, his wife : 

Lots 33 and 33 on Van Kenlen's Hook, and the Harlem 

Mill property 109 

Simon Johnson to Benjamin Benson : Lots 22 and 33 on Van 

Kenlen's Hook Ill 

Town of Harlem to Benjamin Benson : Grant of the mill right 

on Hai'lem Creek and of the land known as Mill Camp 112 

and Appendix B 2 

Benjamin Benson to Peter B. Benson : Of Mill Pond and farm 

on northerly side of Harlem Creek 114 



190 ESTDEX. 

Benjamin P. Benson with Peter Van Arsdale and Wilhelmina, 

his wife: In partition 119 

Peter Van Arsdale and Wilhelmina, his wife, to Benjamin L. 

Benson 130 

, Same to same 120 

Bemjamin P. Benson and wife to Benjamin L. Benson : Two 

deeds - 131 

Benjamin L. Benson to Harriet M. Wiswell: Two deeds 122 

De Forest, Henry : First settlers in Harlem 17 

Sailed from the Trexel 1636. ib. 

Allotted 200 acres of land on the north-east end of Island 1 . . ib. 

See Harlem Farm 
De Jure Maris : See Tidal Creeks. 

Doubts as to its being the work of Ld. Hale 34 

Its maxim to be carefully weighed 34 

Ld Hale died in 1676, De Jure Maris not published until 1787 .- 45 

Certain rules stated therein not now law 35 

Considered in reference to the deeds to the Montagues 37 

Responsible for the opinion that the King's title extends to all 

tidal waters 43 

That doctrine not taught by other treatises 43 

De Jure Portibus : See Tidal Creek 39 

De Lamater, John : Buys Van Oblinus' farm on Hoorn's Hook 93 

Lot No. 26 of common lands, joining the farm, set off to him by 

the town in the division of 1691 93 

See deed. Appendix B, 7. 

Delavall, Thomas : One of the patentees in NicoU's patent 15 

Treasurer of the colony and Mayor of the City of New York. . 108 

Land bought by him of Moseman 109 

Directors General : Declaration concerning the house of Jochem 

Peterson Kuyter, destroyed by the Indians 36 

Division line : Between the farms of Montague or Bogert and Van 

Oblinus 91 

Dongan, Governor : Patent to the town of Harlem of 1686 15 

.and Appendix C 

Charter of the City of New York considered 15 

Denman, Ch. J, . Opinion in Mayor Colchester v. Brooke (7, 2 B, 

,373, 1845) .,--- ! 48 

Also in "WUliams v. Wilcox (3 Ad & El, 314, 333), also in Rex v. 

Landulph (1 Moody & E, 393) as to navigable rivers ib. 

Discoveries : Of Gilbert, Sir Walter Raleigh and Hendrick Hudson 2 

British title founded on ib. 

Duke of York 3, 5 

Patent to Appendix O, No 8. 

Dutch, The : Never had any right to New Netherland 8 

Claim to New Netherland stated _ 3 

Grants to be construed by common law 8 

Occupation of Manhattan Island 9 



ESTDEX. 191 

Purchase of Manhattan Island from the Indians ib. 

Grants and documents Appendix B 

Governors: Authority of 9 

Church in Harlem : The original owner of the southerly half of 

the McGown marshes 88 

All questions arising out of grants from, to be construed by 

laws of England prior to American Revolution 7 

Dutch Grants i History of 3 

Construction of _ 8 

English and American Cases: Compared in juxtaposition 64 

English possessions in America : Claimed by right of discovery 3 

English Rivers : But few naturally navigable except the Thames 

and Severn, but were made so by Act of Parliament 50 

English title to New Netherlands indisputable 8 

Common law in force ib. 

Ferry : To be established near Harlem.. 35 

Finch, J. : Opinion in Mayor v. Hart (95 N. y., 450) 7 

Common law of England; the law in New Amsterdam 7 

First Harlem Farm: History of 17 

Fountain, The, in Central Park : The source of one of the three 

fresh water streams which emptied into Harlem Creek 107 

Freeholders: Of Harlem in 1661 28 

And inhabitants of Harlem a civil corporation 13 

Freshwater: The Collect Pond 33 

Creeks or streams 33, 33, 33, 37, 69,84 

Gould : Law of waters ; rights of settlers in territories acquired by 

discovei-y - 7 

As to De Jure Maris 35 

Grants : On tidal waters by government construed 43 

Of real property to be construed by the common law 8 

To the City of New York by the Governor did not include the 

McGown or other Harlem marshes 104 

Gray, J. : Opinion in Roberts v. Baumgarten (110 N. Y., 380) 54 

Ground Brief : The first to any part of Harlem granted by Dutch 

Government 1 

Ordinance requiring inhabitants to apply for 39 

Hall on Seashores '. 43 

As to title in salt marshes ---- - 43 

Hargrave's Tracts : As to Creeks of Ports - -- 40 

Harlem: First patent 1666 ^ - - 10 

Original boundaries — 11 

Common lands vested in the community in trust for the town. 13 
Patent in 1667, restores name of New Harlem in place of Lan- 
caster. 12 

Dongan patent in 1686, merely confirms previous grants .13, 15 

Land granted to the freeholders and inhabitants by these pat- 
ents - - 1^ 

And constituted the town a corporation 12 



193 INDEX. 

Ceased to exist as a corporation prior to 1819 - 106 

Act of the Legislature 1820, Ch. 115, appoints Trustees to sell 

Harlem Commons - 13 

Names of residents of at close of 1661 ---- 38 

Order of Director and Counsel to survey lands 29 

Territory of, granted to its freeholders by Gov. Nicolls as Agent 

of Duke of York -- - 30 

Harlem Farm, first account of - 17 

Harlem Creek, or Montagne's Kill : 1, 3, 19, 21, 27, 30, 31, 72, 74, 75, 
77, 79, 81, 82, 86, 87, 95, 102, 107, 112, 114, 118, 120, 121, 128, 

124, 138, 129 

The outlet of three fresh water streams 107 

AndMillPond, history of 74 

Not an arm of the Harlem River 74 

Granted to the freeholders and inhabitants of Harlem 76, 135 

Opinion of Murray Hoffman as to tittle 125 

The question of title never has been passed upon 135 

Not navigable in the legal sense 138 

Divided by the Mill Dam 129 

Harlem Creeks : Not calculated to raise the presumption that 

they were public and navigable 83 

Included in the Harlem Patents 85 

No limitation in the gi-ants 85 

No part of the Harlem Creeks were granted to New York by the 

Dongan Charter 104 

Not navigable waters. 85 

Even if navigable, the title passed to the town of Harlem and 

its grantees 85 

Had not caput partus and were not arms of the sea 88 

Were in a wholly unpopulated country when the De Forest 

and Van Curler's grants were made 83 

Harlem Canal 113 

Harlem Marshes : See Meadows of Harlem. 

Harlem Mill Creek, History of... 107, 124 

Crossed by Second avenue in 1837 126 

Presumption that it was not a public stream 126 

Harlem Patents: Interpreted 10, 127 

Copies of in Appendix C, constituted the freeholders and in^ 

habitants a corporation 13 

And the common lands were vested in the corporation 14 

" Heirs," the word in grant refers to the estates held severally as 

individual property 15 

HofEman Estates of New York 93 

As to rights of discovery 4 

Holroyd, J. : Opinion in Rex v. Montague 81 

Opinion in Vooght V. Winch (2 B. & A.) ib. 

Hop Garden, The _ 97 

Owned by Maria Vermilje, widow of John De La Montagne, Jr. 96 



INDEX. 193 

Appendix B 4 

Houck : Navigable Elvers in England 36 

Hudde, Andries 17 

Member of Van Twiller's Council 17 

First Commissary of Wares _ 19 

Obtained ground brief for the De Forest farm in 1638 17 

Deed to of first Harlem farm 1? 

Indians : Only temporary occupants of the soil _ 9 

Their title by occupation acknowledged both by Colonial and 

State Governments _ 9 

Their title extinguished by Minuit, Director General in 1626... 9 
Indian Deed : To De La Montagne of Rechawanes (Montagne's 

Point), and the meadov/s in the Bay of Hell Gate -. 89 

Indian Titles 9 

To land, doctrine as to stated 9 

Indian Trails : The only roads. 20 

Indian War: instigated by Gov. Kieft . 23 

Resulted in the desolation of all the farms in Harlem, began in 

1643, and continued until treaty of peace in 1645 32 

Inhabitants of Harlem in 1661 . 38 

Jennings, ex parte.- ._ 57 

Johnson, Simon : Assignee of Elias Pipon, conveys the mill prop- 
erty to Benjamin Benson. 111 

Jus Postliminii 4 

Kuyter, Jochem Peterson : One of the Schepens, and Schout 37 

Farm of, called "Zegendael" 26 

Account of burning- his house, and his murder by the Indians . 36 
Kent, Chancellor : Commentaries, V. 3, p. 437, review of as to tidal 

streams 71 

Kieft, William, Director General. 32 

Lancaster: Early name for New Harlem 13 

Land ; Distribution of by Dutch Government 39 

Ground briefs disregarded 29 

Division of Harlem common land 93 

Le Roy, Jacob : See Waldron Williams. 

Littledale, J. : Opinion of in Rex v. Montague 81 

Littoral owners, right of. See Tidal Creeks. 

Lossing's Encyclopedia of U. S. History, right of discovery 5 

Lovelace, Governor, gives order to repair the Mill dam during De 

Lavall's absence 108 

Manhattan Island : Settlement of by the Dutch 4, 9 

Origin of land titles on 5 

Purchased from Indians. 9 

Mansfield, Ld. : Opinion in Lynn v. Turner (1 Cowp. 86), in 1774 45 

" The flowing and reflowing of the tide does not make a navi- 
gable river.". 46 

The most recent statement of the law as to tidal streams when 

the constitution of the State of N. Y. was adopted 55 



194 INDEX. 

Marshall, Ch. J. : Opinion in Johnson v. Mcintosh (8 Wheaton, 

U. S. R.) --- 5 

Right of discovery - 5 

MoGown, Margaret : Lineal descendant of Johannes Benson 1 

The Montagne's Point farm - 1 

I The McGown marshes or meadows in the bay of Hell Gate, title 

stated (see Meadows of Harlem) --- 85 

McGown, Samson Benson : Deed to by Margaret McGown of part 

of the McGown Marshes. - 103 

Meadows : In Bay of Hellgate title approved 89 

Described and classified - -- 85 

Title to extinguished and reverted to Government 30 

Added to Montagne's Point farm 1 

Continued under one title until it came to Margaret McGown 

in 1831 -... 1 

Meadows of Harlem : Account of - 87 

Included in the Harlem patents ; a distinct formation of land ; 
John Archer claims some in Harlem river, Govr. NicoUs' 

order in regard to same 85 

Allotments of .• 88 

Highly prized by the owners of farm ; salt hay thought to be 

indispensable; historical extracts 89 

Small section still extant 89 

Division creek in the McGowan meadows > 88 

Two distinct titles and part included in the first ground brief to 
Montague allotment to Dutch Church of part of meadows in 

the Bay of Hellgate 88 

Conveyed to Montagne by the Indians ; and by the town ; con- 
veyed by Montague to Bogert-. 89 

Van Oblinus claims a small section of Bogert' s meadows and 

claim sustained 91 

Conveyed by Bogert to Johannes Benson 95 

The McGown meadows defined as dryland 103 

Title more than 200 years old 103 

Conveyed by Margaret McGown to Edward Sandford and Sam- 
son, Benson McGown 103 

No doubt about the title until filled in 103 

Not included in the Dongan Charter to New York 104 

Opinion of Richard O'Gorman, corporation counsel, as to 105 

Conclusion as to the title.... 106 

Mereweather Sgt.: Speech of in Attorney General v. Mayor of 

London, and Jerwoods reply thereto 34 

Mill Camp, the 37 

Montagne, De La, Johannes 31 

Deed to must be construed according to the common law when 

given. 8 

Petition of Jacob Kipp and Wm. De La Montagne to Gov. and 
Council in New Netherland. to establish a village 27 



INDEX. 195 

Montague, De La, John, Jr. : Deed to, from Magistrates of Harlem 
of Montagne's Point and meadows in Bay of Hell Gate and 

effect of same _ 30 

Title carried to centre of creeks, see description 31 

Interpretation of deeds to the De La Montagnes involves exami- 
nation of law as to tidal creeks 33 

(See Tidal Creeks), the creeks or kills mentioned in these deeds 

were not arms of the sea or of the East river 33 

Not large enough to raise presumption that they were public 

or navigable rivers 33 

Ebb and flow of the tide in these streams cause the embarrass- 
ment as to rights of Riparian owners 33 

This is largely* owing to misapprehension of the law relating 

thereto _ 33 

Montagne's Flat and Point : Included in the first Harlem farm 1 

Originally one farm 1 

Allotted to Isaac De Forest 17 

Conveyed to Andries Hudde 17 

Historical references to the farm 17 

The outlying lands 30 

Conveyed to Dr. Johannes La Montagne, counsellor of New 

Netherland 31 

Desolated by the Indian War 33 

Ordinance establishing the village of New Hai'lem 33 

The Flat set over to the village and the title to the Point con- 

firmed in John De La Montagne, Jr 30 

For subsequent title see Meadows in the Bay of Hell Gate and 
McGown Marshes. 

Morgen : Two acres, distribution of meadows * 19, 34 

Muscoota : Indian name for Harlem Plains - --. 1 

Navigable streams (see Tidal Creeks): Not determined by ebb and 

flowof tide - - - 45 

Public navigation must be open and notorious _ ib. 

New Harlem, villageof: Founded in 1658 - 33 

Estabhshment of, related by O. Callaghan, Brodhead & Riker, 

Riker's account - 1 33 

Ordinance in regard to.. >. , - 34 

New Neth erland : Seizure of by British forces 3 

Dutch relinquish title to - 3 

Patent to the Duke of York - - -.. 3, 4 

Commission of Gov. NicoUs. 3 

Dutch and British Claims stated 3, 8 

New York: Constitution of 1777 - 54 

Grants by State of so far as relates to tidal waters has not 

been changed 54 

Was adopted ten years before De Jure Maris was published.. . 55 
NicoUs, Richard, Governor: Advent of British fleet and forces 

under, in New Amsterdam - 3 



196 INDEX. 

Patents to Harlem granted in 1666-7, p. 10, and Appendix. 

Order in regard to certain Harlem meadows 85 

O. Callaghan : Hist, of New Netherland extinguishment of Indian 

titles - - -- --- 1° 

Opinions ': As to title of Samson Benson (son of Johannes) to Mon- 

tagne's Point - 99,100 

On the Harlem Patents 10 

As to origin of the title to Manhattan Island.. 3,8 

On deed of Town of Harlem to John De La Montagne, Senior, 

of Montagne's Point and Montagne's Flat 29 

On deed of Town of Harlem to John De La Montagne, Junior, 

of Montagne's Point and adj oining meadows .- 30 

On deed of Benjamin Benson to Samson Benson of Montagne's 

Point 103 

On deed of Benjamin Benson to Peter B. Benson, of the farm 
on northerly side of Harlem Creek, with the Mill stream. 

Mill, and Mill pond 114 

On deed of Benjamin L. Benson to Harriet M. Wiswell 123 

On title of Margaret MoGown to the marshes in the Bay of 

Hell Gate. -_ ' 102 

On title to Harlem Creek 81 

As to the navigability of the Harlem Creeks 85 

Of Judge Murray Hoffmann as to title to Harlem Creek 135 

Of Richard O. Gorman, corpoi-ation counsel, that New York 

has no title to the McGown marshes lOB 

Of WiUiam C. Whitney, corporation counsel, as to the Harlem 

common lands. Appendix D, E and F 106 

Ordinance: Of Director-General and Council to found the Village 

of Harlem 24 

Directing inhabitants to take out ground briefs 29 

Outlying lands : Access to 20 

Oyster Bay : See Wadsworth, J. 

Parker, Gh. J.: Opinion in Commonwealth v. Charlestown, 

IPick. Mass.E.,179 56 

Patents (see Harlem): To the freeholders and inhabitants of Har- 
lem, construed 12 

Copies in full in Appendix C. 

Constituted the freeholders and inhabitants a corporation 12 

The common lands invested in them as joint tenants in trust 

for the town 15 

The second NicoUs patent a conflrmatioQ of the first 13 

Peaceful Vale, or Vredendael _ 19 

Montagne's farm.. 19 

Peters' Reports: Martin iJ. Waddell 5 

Pipon, Elizabeth : Wife of Phihp Pipon and daughter of James and 

Frances Carteret, inherits the Mill property no 

Pipon, Elias : Son of Elizabeth and Philip, inherits the Mill property, 

by way of entail. _ _ no 



INDEX. 197 

Assigns all his property to Simon Johnson and others Ill 

Johnson, surviving assignee, conveys the Mill property to 

Benjamin Benson ib. 

Point Eecha wanes _.. 89 

Questions: As to beginning of titles on Manhattan Island 3 

Arising out of Dutch Grants to be construed by common law.. 8 
Rechawanes : Indian name for point of land lying between Har- 
lem Creek and Creek at the south 1 

Kex i;. Montague (4 B. and C, 598): Examined 79 

Riparian Owners : See Tidal Creeks. 

Roberts v. Baumgarten 73 

Relating to Harlem Creek ib. 

Compared with Rex V. Montagne 79 

Neither the Harlem Patents nor the Montagne Deeds in evi- 
dence in that case 77 

Some facts in regard to Harlem Mill Creek overlooked in that 

decision 79 

Court of Appeals decision in that case, how to be regarded 78 

Has never decided that all tidal streams are public and navi- 
gable 79 

Round Meadow ' _ 86 

Salt Marshes: Account of 42, 43 

Title to creeks in, is in the owners of, ebb and flow of the tide 
therein does not raise a presumption that they are publici 

juris 43 

Highly prized by the farmers 44 

Sandford, Edward : Deed to by Margaret McGown, of part of the 

McGown marshes. 103 

Savage, Ch. J. : Opinion in Rogers v. Jones (1 Wend., 338), as to 

lands under water at Oyster Bay 56 

Schorraldn : See " Zegendal.'' 

Second Avenue: Established by law across Harlem Mill Creek in 1887 136 

Proceedings for opening ib. 

Shaw, Oh. J : Opinion in Rowe v. Granite Bridge Co. (31 Pick., 
344), as to ebb and flow of tide being test of a stream being 

public 66 

Shores of the Sea: Defined.. 43 

Stony Island... 14 

Stuy vesant. Governor : Allotment of lands. — 39 

Establishes the, Village of New Harlem on Swit's boundai-y and 

the Van Keulen tract, and part of Kuyter's land 33 

Revokes the ground brief to Dr. John De La Montagne, of 

Montagne' s flat, and confirms the title in Montague's Point. 29 

Summary : As to Harlem Mill Cr«ek and Mill Pond 128 

"Successors:" Meaning of word in grant 15 

Sutherland, J. -. Opinion in Rogers v. Jones (1 Wend.; 338), as to 

lands in Oyster Bay.. 56 



198 INDEX. 

Taney, Ch. J. : (Opinion in Martin v. Waddell, 16 Peters), right of 

dicovery. 5 

Tappan Indians : Bill of sale of Rechewanis Point to John De La 

Montagne - 89 

Tidal Creeks : Ebb and flow of tide not always the test of a stream 

being public — 33 

There must be public use or navigation to raise such presump- 
tion - - - 33 

Private navigation may exist in: theory that all tidal streams 
prima facie, publici juris, not sustained by English com- 
mon law 33 

The treatise De Jure Maris responsible for that theory, but does 

not teach the doctrine - - 33 

The occasional use of small tidal streams for the passage of 
vessels does not of itself raise the presumption that they are 

public -- 33 

Private property in beds of tidal waters has existed to a large 

extent from remote periods of -time. 33 

Immemorial use the test 34, 43 

Legal presumption that a stream is naviga,ble, when applicable. 38 

Littoral proprietors of, in tidal waters 38 

Lord Mansfield did not recognize the ebb and flow of the tide as 

the test 46 

There must be a public navigation to show that a small stream 

is public ... 46 

What is meant by a public navigation 46 

The King has not title as universal occupier of vacant lands.. 50 
Three kinds of rivers, tidal, that are navigable and not navig- 
able, and inland rivers 50 

In England, few of the rivers in their natural conditions were 

navigable above the flow of the tide.. 53 

The title of the King to tidal waters a common law question.. 53 

The common law is the outgrowth of facts ; 53 

Common law doctrine as to rights of littoral and riprai-ian pro- 
prietors - 53 

Navigable, what are prima /acie _ _. 53 

Grants bordering on private streams, construction of _. 53 

If a small tidal stream has become of public use, the Court will 

not take judicial notice of the fact 53 

The Constitution of the State of New York was adopted ten 
years before De Jure Maris was published, and grants must 
be construed according to the law existing when they were 

made 54, 55 

Grants by the State of lands on tidal waters may pass title to 

the lands beyond high water mark 56 

The King's title extends only to those waters which are actu- 
ally navigable 63 



INDEX. 199 

The books show few cases in which the title to the soil of salt water 

creeks has been involved 63 

Rivulets a distinguishing feature of Manhattan Island 83 

All of them filled in excepting two or three, emptying into the 

Harlem river . 84 

The Harlem Patents having included all the creeks, the pre- 
sumption is that they were not public waters -^ 85 

In grants of lands or private streams made by the Sovereign 
to a subject, the title extends to the thread of the stream 

unless otherwise expressed 53 

Tide-way : The strip of land between ordinary high and low water 

mark 76 

The grant of Governor Dongan to the City of New York, of 
the tide-way, did not include the salt marshes nor the Harlem 

creeks .. 76 

Thurley, J. . Opinion in Elder v. Burras (6 Humph., Tenn., 366)-.. 60 

Tourneur, Daniel 14 

Town Records of Harlem : Show grant of the Church Meadows in 
the Bay of Hell Gate, to John De La Montagne, in exchange 

for pi'operty. (See Appendix B.) 49 

Treaty of Westminster _ 3, 4 

Treaty of Breda „ 4 

Trustees to sell the Harlem Commons 93 

Tyler on the Law of Boundaries : Rivers where the tide ebbs and 
flows belong to the public only in those parts which are 

navigable. 53 

Unappropriated Lands in Harlem all disposed of 13 

Van Curler Tract: Account of 19 

Van Curler, Jacob: First proprietor of Van Kenlen's Hook, known 

as Otter Spoor, or Otter Track 1, 9 

Van Kenlen'sHook 1, 19 

Van Oblinus, Joost claims a small section of tlie meadows ip the 

Bay, from Bogert, and brings suit 91 

Judgment in his favor, Appendix B 5 

His farm at Hoorn Hook, adjoining Montague's, described 91 

Vercher's, or Hogg Island _ 14 

Van Arsdale, Peter : Husband of Wilhelmina Benson 130 

Van Twiller, Wouter: Second Director-General of New Netherland 19 

Van Schoonerwoert : See Bogert, John Louwe 

Van Tievenhoven : Secretary of New Netherland 36 

Verplanck, Senator : Opinion in Canal Commissioners v. Kemps- 
hall (86 Wend., 404).. 54 

Village of New Harlem : Founding of 33 

Vooght V. Winch (3 B. and A., 663) 47 

"Vredendal": Montague's farni on Harlem Flats 

The De Forest Farm .- 19 

Woodworth, J. : Opinion in Rogers v. Jones (1 Wend., 338), as to 

lands under water at Oyster Bay 56 



200 INDEX. 

WagonRoad: Tobebuilt - 35 

Waldron, Resolved: Never owned Waldron farm.. 94 

Waldron, Samuel: Farm of, described 94 

Waldron, William (son off Samuel): Came into possession of Wal- 
dron Farm in 1741, and set off part of it to his brother Benja- 
min, and another pai-t to Jacob Le Roy ^ 94 

Waldron Farm: Country seats of Astor, Gracia, Prime and Rhine- 
lander included in ' 94 

Walworth, Chr.: Common Law of England and not the Civil Law 

in force in New York 7 

Opinion of, in Childs ?;. Starr (4 Hill) 70 

In Canal Commissioners v. The People (17 Wend., 8)-.- 6 

Westminster: Treaty of , 1874 3 

Whitney, William C: Corporation Counsel, Opinion of, as to Title 

of the City of New York, Appendix D andE 106 

Wey Schut: Boat used to bring hay from the meadows 86 

Woodward, J.: Opinion in McManus v. Carmichael (3 Clarke's 

Cases, Sup. Ct., Iowa) 60 

The tide a merely arbitrary test as to navigability and appro- 
priation to public use . ib. 

Woolwych on Waters 46 

York, Duke of : Patent from Charles 11 4 

Commission to Nicolls 30 

Yacht Rennselaerwick 17 

Zegendal or Schorrakin: The farm of Jochene Peterson Kuyter, of 

400 acres L __. 26 



I