Statement of case.

made by direction of the commissioners of the sinking fund was "ultra vires," it is absolutely void and cannot avail to estop the plaintiff. (R. 2 Roll. 191, L. 20; Comyn's Dig., Patent F, 1; 2 Term R. 171; Doe Defreecu v. Howell, 27 Eng. Com. Law, 311; 2 B. & Ad. 744; Chandler v. Ford, 30 Eng.Com. Law, 301; Jackson v. Stanley, 10 N.Y. 138; People v. Van Rensselaer, 9 id. 320; Jackson v. Lawton, 10 Johns. 23; Jackson v. Hart, 12 id. 77; Jackson v. March, 6 Cow. 281; Livingston v. People, 8 Barb. 255, 256; Toole v. Parmer, 1 Abb. [U. S.] 102; Bogardus v. Trinity Church, 4 Sandf. Ch. 735; People v. Moran, 5 Denio, 400; Osterhouse v. Shoemaker, 3 Hill, 517; William v. Jackson, 5 Johns. 504, 505; Livingston v. Penn Iron Co., 9 Wend. 520; Humbert v. Trinity Church, 24 id. 637; Van Deusen v. Sweet, 51 N. Y. 384, 387; Lyons v. Chamberlain, 88 id. 587; McDonald v. Mayor, 68 id. 23; Hodges v. Buffalo, 2 Denio, 110; Donovan v. Mayor, 33 N. Y. 291; Smith v. Mayor, 10 id. 538.) No adverse possession against the city is shown in the case which can bar the title of plaintiff or prevent judg ment for it. (Becker v. Van Amburgh, 29 Barb. 323; Doolittle v. Tice, 41 id. 182; Corning v. Troy Iron Co., 34 id. 529; Jackson v. Halstead, 5 Cow. 216; Brant v. Ogden, 1 Johns. 158; Lane v. Gould, 11 Barb. 256; Miner v. City of N. Y., 37 S. C. 199; Livingston v. Peru Iron Co., 29 Wend. 116; Wheeler v. Spinola, 54 N. Y. 387; McFarland v. Kerr, 10 Bosw. 256; Evans v. Turnbull, 2 Johns. 313 ; Smith v. Levinus, 4 Seld. 472; Jackson v. Camp, 1 Cow. 610; Livingston v. Peru Iron Co., 9 Wend. 516; Frombois v. Jackson, 8 Cow. 595; Brand v. Ogden, 1 Johns. 158; Miller v. Platt, 5 Duer, 272; Cornelius v. Gibberson, 25 N. J. 31, 32; Hawk v. Lanseman, 6 S. & R. 21; Proprietors of the Kennebeck v. Coll., 1 Mass. 483; Smith v. Hosmer, 7 N. H. 441; 4 Am. Law Reg. 1269.) Payment of taxes is no evidence of adverse possession. (Kerr v. McFarland, 10 Barb. 249; Rose v. Klinger, 8 W. & S. 178, 180; Cornelius v. Gibberson, 23 N. J. 36; Negley v. Albright, 4 Whart. 291; Sober v. Willing, 10 Watts, 141; Jackson v. Sharpe, 9 Johns. 167.) If

Statement of case.

a person in possession admits title in the true owner, he is estopped from setting up adverse possession. (Brady v. Begum, 38 Barb. 533; Mitchell v. Walker, 2 Aitk. 266; Jackson v. Creeden, 2 Johns. Cas. 353; Jackson v. Brittan, 4 Wend. 511; Jackson v. Speer, 7 id.. 401; Jackson v. Crary, 12 id. 427; Enfield v. Day, 7 N. H. 457; Jackson v. Woodruff, 1 Cow. 381; Crary v. Goodman, 22 N. Y. 173, 174, 175; N. Y. C. R. R. v. B. & N. Y. E. C. R. Co., 49 Barb. 504, 505; Co. Litt. 121 B.; Harris v. Elliott, 10 Peters, 54; Jackson v. Hathaway, 15 N. Y. 454; Leonard v. White, 7 Mass. 8, 9; 2 Roll. 186, p. 25.) The order of the Supreme Court confirming the report of the commissioners to open and regulate streets and avenues is not a judgment affecting such title. (Mayor of N. Y. v. Colgate, 12 N. Y. 155, 156; Fisher v. Mayor, etc., of N. Y., 57 id. 349; Spears v. Mayor, 87 id. 359; 2 Hoffman's Laws, relating to the city and county of New York, 826; Embury v. Conner, 3 N. Y. 523; Shepley v. Abbott, 42 id. 451, 457; Co. Litt. 295 b; 5 Vin. 380 [y] pl., 5 S. P.) The contention that this action cannot be maintained unless the plaintiff first offers to return the money which it has received and demands the rescission of the deed is not well founded. (Caulkins v. Isabell, 20 N. Y. 147; Mickles v. Dillange, 17 id. 83; Putnam v. Ritchie, 11 Paige, 390; Bissell v. Kellogg, 60 Barb. 632.)

John E. Parsons for respondents. The defendants derived title to that part of the premises in question comprised by the shore, i. e., the strip between high and low-water mark under the original Harlem patents, and became thereby pre-emptively entitled to the rest of the premises in question. (Gould v. H. R. R. R. Co., 6 N. Y. 522; Hale's De Jure Maris, chap. 4; Mr. Sergeant Mereweather's speech in Attorney-General v. London, Hall Sea Shore, appen. ; Angell on Tidewaters, 224, 226, 236, 276; Storer v. Freeman, 6 Mass. 438; 1 Pick. 186; 8 Greenleaf, 83; Hart v. Hill, 1 Wharton, 135; Wilson v. Forbes, 2 Dev. 37; Acts of 1745, chap. 9; 11 Grattan, 74; Peck y. Lockwood, 5 Day, 22.) These Harlem patents were

Statement of case.

not only made at a time when it was generally held in the colonies that a grant on the sea conveyed to low-water mark, but the language of the grant has that effect. (Ex parte Jennings, 6 Cow. 518; Angell on Tidewaters, 67; Hale's De Jure Maris, chaps. 4, 5; Child v. Starr, 4 Hill, 369; Halsey v. McCormack, 13 N. Y. 297; Killingworth v. Ground, 5 Whart. 489; Commonwealth v. Show, 14 S. & R. 13; Lapish v. Bangor B'k, 8 Me. 85; Martin v. Waddell, 16 Peters, 414; Langdon v. Mayor, etc., of N. Y., 85 N. Y. 129, 144.) But even if it be held that the shore belongs prima facie to the sovereign, it may belong to the subject as part of the land adjacent, and this by prescription as well as grant. (Hale's De Jure Maris, chaps. 4, 5, 6; Commonwealth v. Charleston, 1 Pick. 180; Chapman v. Kimball, 9 Conn. 38; Beaufort v. Swansea, 3 Exch. 413; Chad v. Tilsea, 2 B. & B. 403; Coolidge v. Learned, 8 Pick. 504; Hill v., Smith, 10 East, 476; Jacobson v. Fountain, 2 Johns. 170; Sanitary Rep. of New York, 345; the Secretary Von Tienhoven, "Information relating to the taking of lands in New Netherlands, 1650.") If the Harlem patents granted only to high-water mark, nevertheless the owners of the upland were by the act of 1852 (Chap. 285) entitled as such to a pre-emptive right to the lands under water in front of the shore. (Laws of 1786, chap. 67, § 18; 1 Greenleaf, 220; Act of April 3, 1807, § 15; Laws of 1815, chap. 199, § 1; Laws of 1826, chap. 58, § 1; Laws of 1850, chap. 283, § 1; Nott v. Thayer, 2 Bosw. 65; Martin v. Waddel, 16 Peters, 410; Towle v. Remsen, 70 N. Y. 303.) Even if the defendants had no pre-emptive right to the premises in question, the grant to them by the city in June, 1870, was a valid grant, lawfully vesting in them the title to the premises. (Dongan Charter, § 12; Montgomerie Charter, § 1, last clause; Sherwood v. Am. Bible Soc., 1 Keyes, 564; Pres. Church v. Mayor of N. Y., 5 Cow. 538; Central Gold Co. v. Platt, 3 Daly, 263; Laws of 1853, chap. 21, § 7; Laws of 1857, chap. 446, §§ 38, 41; Laws of 1870. chap. 137, §§ 105, 120; Laws of 1871, chap. 574, § 9, p. 1247.) Whether authorized or not, the plaintiff cannot dispute its own deed in this action.

Statement of case.

(Phillips v. Gorham, 17 N. Y. 270; Van Deuzen v. Sweet, 51 id. 384; Bradley v. Aldrich, 40 id. 511; Man v. Fairchild, 2 Keyes, 111; Hayward v. Buffalo, 14 N. Y. 540; Cowp. 106; Jackson v. Bull, 1 Johns. Cas. 90; Jackson v. Stevens, 16 Johns. 110; 2 W. Black. 246; Livingston v. Proseus, 2 Hill, 528; Jackson v. Dermot, 9 Johns. 55; Hamilton v. Wright, 37 N. Y. 502; Boole v. Mix, 17. Wend. 110; Jackson v. Lawton, 10 Johns. 26; Jackson v. Hart, 12 id. 76; People v. Clark, 5 Seld. 349; People v. Soc. Prop'n Gospel, 2 Paine's C. C. 567; Turnpike Case, 2 Term R. 171; Hagerty v. Harris, 11 Barn. & Ald. 440; Walton v. Penfield, 3 Q. B., Ad. & El. 964 [667]; Parish v. Wheeler, 22 N. Y. 507; Troy Nail Factory v. Winslow, 45 Barb. 231; 2 R. S. [6th ed.] 1119, § 164; People v. Moran, 5 Denio, 399; Bryan v. Forsyth, 19 How. 334; U. S. v. Castillero, 2 Black, 352; People v. Clark, 5 Seld. 349; Ogden v. Raymond, 1 Keyes, 42; Rome B'k v. Rome Village, 19 N. Y. 20; Gould v. Town of Sterling, 23 id. 456; Starin v. Genoa, id. 439; Gelpcke v. Dubuque, 1 Wall. 202; Bissell v. Jeffersonville, 24 How. [U. S.] 287; 22 Conn. 502; Palmer v. Lawrence, 3 Sandf. 161.) The defendants' title to the tideway had become perfect by adverse possession before the grant by the city, and they were thus entitled under any construction of the act of 1852 to a grant of the rest of the premises in question. (Ewing v. Burnet, 11. Peters, 52, 53; Crary v. Goodman, 22 N. Y. 175; Humbert v. Trinity Church, 24 Wend. 586, 610; McFarlane v. Kerr, 10 Bosw. 249.) The city, having mapped, taxed and assessed the premises as the property of the defendants, and not the property of the city, for forty years, during which the enjoyment of the premises was of no value, and taxes were paid on the sole expectation of their future value, is now estopped from claiming the premises when they have become valuable. (Schuchardt v. The Mayor, 53 N. Y. 202; Embury v. Conner, 3 Comst. 523; Matter of Widening Broadway, 49 N. Y. 153; Matter of Canal St., 2 Kern. 411; Matter of Arnold, 60 N. Y. 28; Stafford Co. v. Stratton, 2 Barn. & Ald. 526; Ilearn v. Rogers, 9 B. & C. 577; SICKELS-VOL. L.

57

Opinion of the Court, per FINCH, J.

Wendell v. Van Rensselaer, 1 Johns. Ch. 353; Corkhill v Landers, 44 Barb. 228; Refig v. Butterton, 6 Term R. 554; Laverty v. Moore, 32 Barb. 350.) The city, having invited us to deal with it in good faith, and having received and appropriated and retained the consideration money, is estopped by that alone, if not otherwise, from claiming the premises without first offering to rescind the contract and return the consideration. (Sherman v. McKeon, 38 N. Y. 275; Bartholomew v. Fennimore, 17 Barb. 428; Palmer v. Lawrence, 3 Sandf. 170; Steam Co. v. Wood, 17 Barb. 382.) The grant, by the city, to Coles gave him that part of the premises described therein and pre-emption to all in front thereof. (Laverty v. Moore, 33 N. Y. 662; O'Donnell v. Kelsey, 10 id. 419.)

FINCH, J. That the city of New York, by the terms of the Dongan charter, granted in 1686, acquired title to the tideway, or land between high and low-water mark, on the whole circuit of Manhattan island, and held it as an absolute fee, has been decided by this court. (Furman v. Mayor, etc., 6 Seld. 567; Towle v. Remsen, 70 N. Y. 303; Langdon v. Mayor, etc., 93 id. 134.) The defendant, however, asserts a prior grant, made in 1666 by Governor Nicolls, to the freeholders and inhabitants of Harlem of a tract extending "eastward to the end of the Ryver, or any parte of the said Ryver on which this island doth abutt." If that grant ran to lowwater mark, the tideway here in question belonged to the freeholders of Harlem, and never became the property of the city of New York. The general rule of construction would bound this grant by the line of high water, and exclude the tideway. (Ex parte Jennings, 6 Cow. 528; People v. Tibbetts, 19 N. Y. 523; Langdon v. Mayor, etc., 93 id. 144; 3 Kent's Com. 432.) We must assume such to have been the common law at the date of the grant. Two years earlier the Dutch had surrendered New Amsterdam to Colonel Nicolls, who, with an armed force, asserted the right and authority of the Duke of York and the English government. The common law of Eng