Account of Early Judicial Decision Relating to Ownership of Land Beneath Coastal Waters of City Island

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Occasionally I have written about legal disputes that have arisen concerning ownership of the land beneath certain coastal waters surrounding City Island when it was part of the Town of Pelham.  For examples, see:

Monday, November 27, 2006:  The 19th Century Ejectment of Henry Piepgras from Land Beneath the Waters Surrounding City Island.

Monday, September 7, 2009:  More on the Ejectment of Henry Piepgras from Land Beneath the Waters Surrounding City Island. 

Today's posting to the Historic Pelham Blog transcribes a newspaper article published in The New Rochelle Pioneer on February 9, 1889 about an early judicial decision in the dispute regarding land beneath the waters surrounding City Island.

"The City Island Water Front.

Under the above heading the New York Commercial Advertiser of the 7th inst., had an article stating that a deicision had been rendered in favor of Mrs. De Lancey, in relation to her claim to 145 acres surrounding the greater part of City Island.  We are informed by Mr. C. H. Roosevelt, of this place, counsel for Pelham, that on all points relating to the validity of the deed to Mrs. De Lancey, from the Comptroller of the State, the Attorney General decided in favor of the points contended for by him; that at the time when the grant was made to Benjamin Palmer, in 1763, the Colonial Government had no title to convey to him, and hence the sale of all his rights under the grant, for non-payment of quit rent conveyed nothing, and therefore Mr. Hunter got nothing by the deed from the Comptroller, because the Charter made in 1666 to Thomas Pell, and afterward confirmed to John Pell, all the lands in the Manor of Pelham, both upland and land under water, hence it follows that the owners of land along the shore also own all the rights that are appurtenant thereto, and have owned the same from the early days as successors in title to John Pell.  Mr. Roosevelt also says that the conclusion arrived at by the Attorney General contains the following:  'Upon an examination of the whole case, we are of the opinion that the confirmatory grant or patent from the Crown of Great Brittain [sic] to John Pell, bearing date October 25th, 1687, conveyed to the grantee the territory embraced within its limits, both uplands and lands under water.  Such construction is in accordance with the decisions of our courts from an early day, until a very recent period, and as no doubt the law of this state upon that subject.'

Also, in 1762, at the time Benjamin Palmer and others made their petition to the then Colonial Governor, for a grant of land under water around Minneford's Island, they' (that is the petitioners owners of land on the Island) were the successors in title to John Pell, and as they aver, were the owners of the Island.'  'From all that appears in the case, Pell had never before that time conveyed or released his interest in the land under water surrounding the Island, to any person -- consequently he was the owner of it, and the grant to Palmer by Governor Monckton conveyed nothing to him for the reason that the Crown at that time had nothing to convey.'

Hence it follows, that Mrs. De Lancey's title being dependent upon the validity of the Palmer Patent, and the decision being that the State conveyed nothing to Palmer, she could not gain title by the Comptroller's deed, which was made in pursuance of a sale of the land described in the Palmer Patent for non-payment of quit rent.  From all that appears so far the title to land under water, below high-water mark, is owned by the descendants of John Pell, or by his grantees, the owners of land along the shore, and not to Mrs. De Lancey or any of the heirs of John Hunter."

Source:  The City Island Water Front, The New Rochelle Pioneer, Feb. 9, 1889, p. ?, col. 1 (no page number printed on the newspaper page). 

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