It does not appear that there was any adverse claim on the part of New-York, until the 27th of April, 1686, nineteen years after the date of the Brooklyn patent, when the Corporation of New-York obtained a charter from Governor Dongan, by which the ferries were granted to them, but not a word mentioned about the land between high and low water mark on the Brooklyn side. From the reading of this charter it appears as if the Governor was doubtful as to his right even to grant the ferry, for it contains an express saving of all the rights of all other persons, bodies politic and corporate, their heirs, successors and assigns, in as ample a manner, as if that charter had not been made.
May 13, 1686. The freeholders and inhabitants of Brooklyn somewhat apprehensive of encroachments by New-York, obtained from Governor Dongan, a patent under the seal of the Colony, fully confirming that granted them by Governor Nicolls.
May 6, 1691. An act was passed by the Governor, Council and General Assembly of the Colony of New-York, “for settling, quieting and confirming unto the cities, towns, manors, and freeholders within this Province, their several grants, patents and rights respectively.” By this act the freeholders and inhabitants of the town of Brooklyn were confirmed in the rights they possessed and enjoyed under their two several patents.
October 12, 1694. The Corporation of New-York, not thinking their foothold on the Brooklyn side sufficiently secure, purchased of one William Morris, for no specific consideration, a piece of land in Brooklyn near the ferry. This deed is the foundation of the Corporation claim to their land in the village of Brooklyn. A copy of which will be found in the appendix marked with the letter A.
Bent on unjustly wresting from the town of Brooklyn their water right, the Corporation on the 19th of April, 1708, obtained from Governor Cornbury, a man infamous for his vices, and disregard of justice, another charter, in which they came out more openly than before, and claimed the vacant land to high water mark, on Nassau Island, reserving to the inhabitants of Brooklyn the right of transporting themselves in their own boats ferriage free, to and from New-York.[6] By this charter, no matter how ample soever they might have considered it at the time, they obtained nothing but vacant land to high water mark; that is the land which was not already granted, and in the possession of some other person or persons, which was not the fact as to the land on the Brooklyn side, it being vested in the patentees, their heirs, successors and assigns forever; so that the only power or authority remaining in the Governor, was to grant the Corporation of New-York, the privilege of buying the water rights of the inhabitants of Brooklyn. But that would not answer their purpose, for those rights could be bought cheaper of Governor Cornbury, than they could of this town.
This proceeding on the part of New-York stimulated the inhabitants of Brooklyn to obtain from the Colonial Legislature in 1721, an act confirming their patent rights.
To obviate the effects of this law, and strengthen the charter of Cornbury, which from the circumstances under which it was obtained, the Corporation feared was invalid, on the 15th of January, 1730, they procured from Governor John Montgomerie, a new charter confirming their pretended right to the land to high water mark on our shore.[7]
The grants from the Corporation of New-York, under their two charters for the water lots on the Brooklyn side, are very artfully and ingeniously drawn. By those grants are only conveyed “all the estate, right, title, interest, property, claim, and demand whatsoever, in law and equity” of them the said Corporation; and their covenant for quiet possession only extends to them and their successors, and not against any other persons lawfully claiming the premises. These grants, in order to save the Corporation harmless against the claims of Brooklyn, also contained a covenant to the following effect: “It is hereby covenanted, granted and agreed upon by and between the parties to these presents (that is, the Corporation of New-York and the person to whom they give the grant,) and the true intent and meaning hereof also is, and it is hereby declared, that this present grant, or any words, or any thing in the same expressed, or contained shall not be adjudged, deemed, construed or taken to be a covenant or covenants on the part and behalf of the said parties of the first part, (that is, the Corporation of New-York) or their successors for any purpose or purposes whatsoever, but only to pass the estate, right, title, and interest, they have or may lawfully claim by virtue of their several charters, of in and to the said premises.” Which covenant evidently shews a want of confidence in the validity of their title on the part of the Corporation.
October 14, 1732. An act was passed by the General Assembly of this Colony, “confirming unto the City of New-York its rights and privileges.” By this act no addition was made to their former pretended rights.