Herrick in the Supreme Court of New York County. The issues involved in the case and the geological evidence used were as follows: “Under the Dongan and Montgomery charters from the Crown of England, title to the lands between high- and low-water marks was vested in the municipality of the City of New York. The Kips Bay Brewery is located on First Ave., between 37th and 38th streets, running down to the East River. The plaintiff, Patrick Skelly, purchased the property from one Bernheimer. Bernheimer had filled out his land between high- and low-water marks, and built a stone dike at the point of low-water mark. From there on he carried out a dock. The City brought suit to eject Bernheimer from the land between high- and low-water marks and from the dock that he had built out from high- and low-water marks. The action came on for trial at a trial term of the supreme court and resulted in an agreement between the City and Bernheimer's counsel for the direction of a verdict in favor of Bernheimer for the land between original high- and low-water marks and in favor of the City for the land under water beyond low-water mark. As Skelly bought from Bernheimer he was entitled to all the land between high- and low-water marks covered by this judgment. The defendant in the action of Skelly vs. Jones was in possession of a part of this land. It was incumbent upon the part of the plaintiff to prove in the case that the land that defendant had taken possession of was the land between high- and low-water marks. There was some evidence to this effect from the testimony of an old surveyor who had been on the original Government survey of the harbor; but what was probably the most weighty evidence was furnished by Dr. D. W. Johnson. He went to the land in dispute and made diggings at the original low-water line and the original high-water line at three different points. Upon doing this he struck the beach. "The difference between the filling and beach sand was apparent. The filling was composed of bricks, stones, and tin cans, and the sand was all angular. When the beach sand was reached, it was all rounded and contained no extraneous matter. Boulders were found, and on the boulders were the water-lines, distinctly marked. The boulders were dug down and when some distance below high-water mark, and between that and low-water mark and on the beach sand and by the boulders were found some small shell-fish (Alexia and Skenea), which Doctor Johnson testified only existed between highand low-water marks because they required for life just so much air and so much immersion every day. While he was examining these holes they commenced to fill with water. He was convinced it was the percolation of the tide through the filling. When the water reached what he considered as the level, he had the surveyor run a line from that high-water line in the hole through the established bench mark or a standard maintained by the City about half a mile below this place and the two practically tallied, the difference being so small a fraction of an inch as to be of no moment. "Thus we were able to prove mathematically, scientifically, and beyond question that the land we claimed was between high- and low-water marks.” 2 2 From private communication from Edward W. S. Johnson, Esq., of Johnson & Johnson, Attorneys, New York. Different geological principles were involved in a Massachusetts case which concerned the title to valuable land now under water but claimed by a certain company. The original grant, the source of title, was alleged to have been made in 1640, and it was claimed, on behalf of the company, that, since said date, the coast of Massachusetts has been sinking at the rate of one foot per century, thus carrying some of its land under the ocean. Submerged land, by virtue of the legal rules outlined in chapter XVIII, belongs to the adjacent State. In the action, the company desired its title to the submerged lands confirmed on the ground that such land had been submerged by subsidence of the coast. "The Commonwealth of Massachusetts opposed this claim on the ground that it was impossible for anyone to know that the rate of subsidence had been regular, and hence impossible to tell how much of the submerged land really did belong to the company. "A careful study of the problem convinced me that the supposed rate was not certainly correct, and that it was almost certain that the rate had been so irregular as to make any conclusion based on that rate very unsafe. Other issues were involved in the case, and before it came to trial the company waived their claim based on the subsidence question. The rate of subsidence along the New Jersey coast has often been stated as two feet per century, but in the course of my investigation I found that the method of determining that rate was inaccurate, and that a more careful study seemed to prove, during the last fifty years at least, a period of quiescence for twenty-five years, then a rather rapid elevation for twenty-five years, showing the irregularity characteristic of all such movements." "a LEGAL AND INDUSTRIAL APPLICATIONS OF STRATIGRAPHY, PETROLOGY, ETC. Another example of the practical use of geology in the law is furnished by a suit between a hard-road contractor and the State of New York. The contractor had exhibited, as a sample of the rock to be used in a certain contract, a good limestone, and claimed that it came from a certain quarry near South Troy. The rock, however, that he used on the road proved to be only a shale and totally unfit for use as "road metal." On the trial Dr. Rudolph Rudeman identified the sample by means of a fossil shell in it (Rafinesquina incrassata) as belonging to the Ordovician 24 From a private communication from Dr. D. W. Johnson of Harvard University. age, which was not found at the quarry in question, so that a false sample had been used. The principles of stratigraphy may sometimes be applied in litigation and mining; e.g., prospecting for coal which is not found below the Carboniferous formations; for iron in the Lake Superior region found only in association with certain members of the pre-Cambrian; or in Arizona where the copper deposits in the Bisbee district are only found in association with carboniferous limestone. In the oil regions of Kansas, the oil and gas are found in beds of porous sandstone interstratified with Cherokee shales, these resting on Mississippi limestone of the lower Carboniferous. Consequently, well-drillers stop when the Mississippi limestone is struck; and beyond the line where the Cherokee shales or Mississippi limestone come to the surface there is no chance to find oil. Spurr gives the following example: A French mining inspector, hearing of the discovery of deposits of phosphate of lime in certain geological formations in England, inferred from his knowledge of fossils that the same beds existed in France. He prospected in these and found phosphate of lime in commercial quantities. In litigation, fossils may be useful in identifying ore beds or adjacent strata and so proving ore deposits to be identical or otherwise. Geology and petrology are sometimes necessary aids in the interpretation of contracts in which certain kinds of structural stone are specified. In a Georgia case the contract called for granite. The rock used had the crystalline appearance of granite, but when examined by a geological expert in thin sections under a petrographic microscope it showed that the crystals of mineral of which it was composed had suffered crushing and movement (metamorphism), and that consequently the rock was a gneiss instead of a granite, and so did not fulfil the terms of the contract. ACCRETION One of the most important geologic processes concerned in the formation of the strata of the earth's crust is the transportation and redeposition of decomposed and broken-down rockmaterial by moving water. This process is in active operation at the present time, cutting down the land in one place so that it is covered by water, and adding to it in another place so that the surface covered by water is converted into dry land. The legal rules governing the rights of property in relation to the changes made by the operations of these geologic processes are usually considered under the title of accretion whether the process is one of loss or gain of land area. As a matter of fact, however, nearly all the cases arise regarding rights to gains of land. There is no incentive under ordinary circumstances to litigate about what the "hungry waves" have eaten away. Still such cases have arisen. The general rules of law with regard to accretion are well settled; for the cases in which it is applied, although not frequent as compared with the general mass of litigation, nevertheless occur from time to time in all the jurisdictions. From the legal standpoint, accretion may be defined as the gradual and imperceptible increase and encroachment of the surface of the land on a water area adjacent thereto by reason of the deposit of sediment and earth by such water. The material added is termed in legal phraseology "alluvion." The general rule is that all the gradual and imperceptible additions made by water to the land surface belong to the proprietor of the shore and become a part of the original tract of land for all purposes and held by the same title. But this only applies where the title to the land extends to the water's edge. If the boundaries are fixed by monuments, even though these are near the water-line, accretions do not belong to the adjacent proprietor. Sometimes the total area added to riparian land is quite large. In the case of Posey vs. James, 75 Tenn. (7 Lea), 98, the accretion which had formed between the years 1866 and 1874 in the Mississippi River adjacent to a plantation amounted to between 200 and 300 acres, but it was nevertheless adjudged to belong to the shore proprietor. The distinctive feature of the accretion, in the legal sense, is that the process is so slow as to be "imperceptible.' The United States Supreme Court gives the following definition of "imperceptible": 3 Welles vs. Bailey, 55 Conn., 292; Wallace vs. Driver, 61 Ark., 429, 33 S. W., 641, 31 L. R. A., 317; Cox vs. Arnold, 129 Mo., 337, 31 S. W., 592, 50 Am. St. Rep., 480; Fasler vs. Wright, L. R., 4. C. D. P., 438. 4 The law is so well settled as to this rule, and the cases are so numerous, that no attempt will be made to cite them. See Tiedeman, "Law of Real Property," secs. 685 et seq.; Washburn, “Real Property," secs. 1881-1885; Tiffany, "Real Property." pp. 1034 et seq.; "A and E. Encyclopedia," title, Accretions; Cyc, titles, Navigable Waters and Waters. "The test as to what is gradual and imperceptible, in the sense of the rule, is, that though the witnesses may see from time to time what progress had been made, they could not perceive it while the process was going on." 5 It was contended in the case of Nebraska vs. Iowa, 143 U. S., 359, that the principle of accretion ought not to apply to the Missouri River, because, owing to the loose nature of the soil and the rapidity of the current, the changes were extraordinarily rapid; but the court decided that this river was no exception to the general rule, saying: "The Missouri River is a winding stream, coursing through a valley of varying width, the substratum of whose soil, a deposit of distant centuries, is largely of quicksand. In building the bridge of the Union Pacific Railway Company across the Missouri River, in the vicinity of the tracts in controversy, the builders went down to the solid rock, sixty-five feet below the surface, and there found a pine log a foot and a half in diameter - of course, a deposit made in the long ago. The current is rapid, far above the average of ordinary rivers; and by reason of the snows in the mountains there are two well-known rises in the volume of its waters, known as the April and June rises. The large volume of water pouring down at the time of these rises, with the rapidity of its current, has great and rapid action upon the loose soil of its banks. Whenever it impinges with direct attack upon the bank at a bend of a stream, and that bank is of the loose sand obtaining in the valley of Missouri, it is not strange that the abrasion and washing away is rapid and great. Frequently, where above the loose substratum of sand there is a deposit of comparatively solid soil, the washing out of the underlying sand causes an instantaneous fall of quite a length and breadth of the superstratum of soil into the river; so that it may, in one sense of the term, be said that the diminution of the banks is not gradual and imperceptible, but sudden and visible. Notwithstanding this, two things must be borne in mind, familiar to all dwellers on the banks of the Missouri River, and disclosed by the testimony: that, while there may be an instantaneous and obvious dropping into the river of quite a portion of its banks, such portion is not carried down the stream as a solid and compact mass, but disintegrates and separates into particles of earth borne onward by the flowing water, and giving to the stream that color which, in the history of the country, has made it known as the 'muddy' Missouri; and, also, that while the disappearance, by reason of this process, of a mass of bank may be sudden and obvious, there is no transfer of such a solid body of earth to the opposite shore, or anything like an instantaneous and visible creation of a bank on that shore. "The accretion, whatever may be the fact in respect to the diminution, is always gradual and by the imperceptible deposit of floating particles of earth. There is, except in such cases of avulsion as may be noticed hereafter, in all matter of increase of bank, always a mere gradual and imperceptible process. There is no heaping up at an instant, and while the eye rests upon 5 St. Clair vs. Lovingston, 23 Wallace, 46. |