THE

NEW YORK STATE REPORTER.

MARY M. GOUVERNEUR et al., App'lts, v. THE NATIONAL ICE COMPANY OF NEW YORK, Resp't. (2 Cases.)

(Supreme Court, General Term, Second Department, Filed September 8, 1890.) 1. DEEDS-DESCRIPTION.

A deed of land bordering on a non-navigable lake or pond, commencing at a known monument on the shore of the pond and running thence "along said pond to the outlet thereof," conveys only the land to low water-mark and not to the center of the pond.

2. ADVERSE POSSESSION.

Cutting ice on such pond, and occupying a part of the surface with men and horses for this purpose during a few weeks of every winter, is not sufficient possession or occupation to constitute adverse possession, which will in twenty years ripen into a title.

3. EASEMENT TO CUT ICE CANNOT BE ACQUIRED BY PRESCRIPTION.

A right to cut ice from a pond for a distant market cannot be acquired by prescription; such a right cannot exist separately from an estate to which it is attached.

4. ESTOPPEL.

Plaintiffs are not estopped from assertion of their legal rights by expenditures made by defendant on adjoining premises, and of which the plaintiffs had no knowledge.

(PRATT, J., dissents.)

APPEALS from judgments dismissing complaints in both actions. The actions were brought to recover damages for a trespass upon and ejectment to recover possession of a certain body of water known as Hinckley Pond.

The defendant claims (1) that the deeds given by the plaintiffs and their ancestors to the land around the pond conveyed the land to the center of the pond. (2). That the defendant had acquired title to the pond and the lands under the water of the pond by adverse possession. (3). That defendant had acquired a prescriptive right to cut ice on the pond. (4). That the plaintiffs were estopped from denying defendant's right to cut ice on the pond by reason of the expenditures made by the defendant for the purposes of its ice business on its lands at the pond.

John De Witt Warner and E. A. Brewster, for app'lts; Calvin Frost and N. A. McBride, for resp't.

DYKMAN, J.-The defendant claims the right to Ilinckley Pond, and has appropriated the same to its own use for the purN. Y. STATE REP., VOL. XXXIII. 1