nature and peculiar location, it is subject to peculiar legal rules, much the same as those governing water. Ice on public waters is common property, and every one can make a reasonable use of the same. The riparian owners on navigable streams have no right to the ice which forms on the water adjacent to their banks superior to that of the general public. But if the bed of a fresh-water navigable stream belongs to the riparian owner the ice formed on the stream also belongs to him as an accretion. Ice formed on a private fresh-water stream or lake belongs exclusively to the riparian proprietor so far as formed over his land.23 In Indiana and Illinois, ice formed on private waters is held to be real estate.24 23 Gould on Waters, sec. 19. 24 State vs. Pottmcyer, 33 Ind., 402, 30 Ind., 287; Washington Ice Co. vs. Shortall, 101 Ill., 46. XIX Miscellaneous instances of the use of geology in the law and industries; tracing old obliterated boundaries; phosphate deposits in France; islands; building stone; accretion, reliction and avulsion. GEOLOGY USED IN LOCATING OLD OBLITERATED BOUNDARIES GOOD example of the use of stratigraphic geology in locating old, obliterated boundaries is furnished by the case of Summerfield vs. Norton, tried in the Supreme Court of New York for Queens County (Long Island), January, 1906.1 The property in dispute is located on the southwestern shore of Long Island and described legally as the west 132 ft. of lot No. 6 of the eastern division of a tract of land comprising both beach and swamp or salt marsh land which in 1809 belonged to John Cornwell and William Cornwell. In that year there was a partition proceeding by which the beach portion of the property was divided into two parts. The western part was subdivided into lots numbered 1 to 16, inclusive, and the eastern into lots 1 to 15, as shown on the map. These lots were all described, beginning with lot 1 of the western portion, as being bounded on one side by the adjacent lot and a certain number of yards wide. The original base line was marked out, it is said, by a tree and stakes on the west side of lot 1. The lots also were originally staked out, but during the lapse of a century the stakes and all other monuments had disappeared. The area being a practically uninhabited swamp and strip of sand beach, the location of the various lots became very uncertain. But when the beach developed into the fashionable summer resort of Rockaway it became immensely valuable; and after considerable preliminary litigation the above suit was begun, which, being in ejectment, squarely presented the question of the ownership of the land. 1 The Supreme Court of New York is a nisi prius or trial court of original jurisdiction. The highest court of New York is called the Appellate Court. I am indebted to Mr. Charles S. Noyes, counsel in this case, for a statement of the legal points involved and to Professor Grabau for an outline of the geological evidence. plaintiff was 3000 ft. west of the location fixed by the plaintiff. but the defendant insisted that the tract of land claimed by the The chain of the plaintiff's title was complete and undisputed, It was wholly a question of the location of the lot in question. FIG. 95. Map of the Premises Involved in the Case of Summerfield vs. Norton Among other evidence tending to fix the location of all the lots was the fact that in the original description of the lots numbers 3 to 15 of the western division they were mentioned as being bounded on the north by marsh lot number 1, and this in turn by Barbadoes creek; and lots 16 of the western division and 1, 2, and 3 of the eastern division were described as being immediately bounded on the north by Barbadoes creek. The location of the above lots would fix the location of lot No. 6 which was in dispute; so that the location of this old creek became a very important matter in the determination of the suit. Barbadoes creek, as shown on the map, was only a small tidal channel in a seashore marsh such as are usually found in these situations. During the century it had been filled up and obliterated by the action of water and wind, washing and drifting sand from the exposed beach, except at the two ends, and the easterly end was claimed to be only an inlet from the bay having no connection with the former Barbadoes Creek. Its former existence was proved by old maps and documents and tradition, but more definite evidence of its existence and location was very desirable. To supply this evidence the plaintiff called upon Amadeus W. Grabau, S. D., Professor of Paleontology in Columbia University, to locate the line of the old creek by geologic evidence. According to Professor Grabau's testimony, an examination of the district between the two present Barbadoes creeks (see map) shows the existence of a depression extending from each toward the Long Island railroad tracks. These depressions were marshy, with Modiola plicatula and other marsh mollusks still living in parts which are daily submerged by the tides. A series of test pits were next dug, from 4 to 6 ft. deep, at right angles across the channel indicated by the depressions and the marshy tract. It was found that certain of these pits showed only pure white sand below the thin layer of modern surface peat. This sand extended below the depth of the pit, the mouth of which was near high-water line. The sand from these pits, when examined under the microscope, showed only pure quartz, with the grains rounded and with a ground surface, and the size of the grains nearly uniform. Such characteristics point to a windblown origin of these sands; and they can therefore confidently be regarded as sand-dune material blown or washed into the area now occupied by them. In many of the holes showing this sand the thin threads of the common eel-grass (Zostera marina) were found, either in a slightly matted condition or still penetrating the sand vertically in the manner in which they grew; thus showing that the sand settled down among and buried the growing eel-grass. The fact that these grasses showed no decay or carbonization indicates that their burial was not long ago. Eel-grass is known to perish if completely uncovered at low tide; hence, the occurrence of this plant showed that the region now filled in by these sands was a former tidal waterway. Test pits, dug to the north of the area, showing these sands, invariably revealed the occurrence of a 1-ft. or 2-ft. layer of ancient, much matted, and much decayed peat at a depth of from 2 to 4 ft. below the surface. Below this ancient peat occurred sands highly impregnated with carbonaceous matter so that they had a nearly black color and emitted a strong odor of hydrogen sulphide. Examination under the microscope showed this sand to be ill-assorted quartz grains of many sizes, mostly not windworn and such as is carried by tidal currents: The carbonaceous character is due to the decay of the enclosed eel-grass, which is no longer recognizable as such. These characters indicate a much greater age of these deposits than is shown by the sand still inclosing the eel-grass. They also seem to indicate that there had been a slight subsidence of the coast in the past, since the ancient peat was found at a lower level than the modern peat. By means of these test pits the northern shore of the former Barbadoes creek was accurately located. The southern shore, being formed by the sand dunes of the beach, is not so definite as the northern one. Some peat was found in the pits south of the old channel, and considerably more eel-grass. These pits show the average width of the buried channel to have been about 100 ft. This definite evidence of the former existence of the old channel of Barbadoes creek must have had much weight with the jury in fixing the location of the lots, for their verdict was for the plaintiff, who claimed that the creek was located at the place indicated in Professor Grabau's testimony. A further interesting case involving the application of geological principles to the determination of real estate litigation is Skelly vs. Jones, tried Feb. 3 and 4, 1902, before Judge D. Cady |
