Demeyer v. Legg
New York Supreme Court
This was an action of ejectment brought to recover the north half of the stream and falls in the Esopus creek,'at a place called “ Demeyer’s Falls.” It was tried before justice Harris, at the Ulster circuit in May, 1851. The plaintiff introduced a deed, dated February 20,1688, from the trustees of the corporation of Kingston, to Wilhelmus Demeyer, for 800 acres of land situated in the town of Kingston, lying on the northerly side of said creek.
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This was an action of ejectment brought to recover the north half of the stream and falls in the Esopus creek,'at a place called “ Demeyer’s Falls.” It was tried before justice Harris, at the Ulster circuit in May, 1851. The plaintiff introduced a deed, dated February 20,1688, from the trustees of the corporation of Kingston, to Wilhelmus Demeyer, for 800 acres of land situated in the town of Kingston, lying on the northerly side of said creek. By the description in the deed the boundary line ran “to the said Esopus kill or river.; thence southerly along the said river by a piece of land of…
1Opinion of the Court
By the Court, Parker, J.
The judge was clearly right in holding that the deed of 1688 to Wilhelmus Demeyer; the ancestor of the plaintiff, carried a title to the center of the stream. The law is well established, that when lands are bounded by a stream or river not navigable or above tide water, the grantee takes usque filum. aquae, unless the stream or river be expressly excluded from the grant by the terms of the deed. (Canal Com'rs v. The People, 5 Wend. 423. Luce v. Carley, 24 Id. 451.)
Nor did it need any proof, in terms, that the stream was not. navigable or above tide water. The fact…
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