Cohen v. City of Rochester

The plaintiff has failed to prove a chain of title from the original source to that part of the premises east of the west face of the Carroll wall. The conveyance from Phelps and Gorham to Ebenezer Allen was bounded by the westerly shore and not by the thread of the Genesee river. (Starr v. Child, 5 Den. 599; Child v. Starr, 4 Hill, 369.) The case of Howard v. City of Rochester (28 App. Div. 622) did not involve the title to the premises occupied by the plaintiff and we follow the well-considered cases in the Court of Errors referred to. The evidence shows that all that *429part of plaintiff’s premises east of the west face of the CarroE wall was within the bed of the stream as it originally existed and as it was in 1798 when the Genesee river was declared by statute (Laws of 1798-99 [1st meeting], chap. 2) to be a public highway. Such statute long antedates any possession by plaintiff’s predecessors and infringed no vested right to which the plaintiff has succeeded and is, therefore, not unconstitutional so far as the plaintiff is concerned. (Town of Pierrepont v. Loveless, 72 N. Y. 211.) As the wall upon which the rear of plaintiff’s structure rests stands within the bed of the stream, a public highway, and is an instrumentality for keeping the waters of the stream within its bed, equity should not interfere with the carrying out of a plan by the city under legislative authority for an improvement of the works intended to prevent disastrous floods upon the highways and adjoining property.

All concur.

Judgment affirmed, with costs. The finding designated as the 20th conclusion of law in plaintiff’s requests to find is disapproved and reversed and a new finding made in lieu thereof.