This is an original suit in equity brought by the commonwealth of Massachusetts against the state of New York, the city of Rochester in New York, and certain corporations and individuals, to quiet title to land located in the city of Rochester, and to enjoin the city from taking it by eminent domain, or in the alternative, to have the amount of compensation for the taking determined by this court. The case was heard upon bill and answer and the report of a special master appointed to take proofs and to make an advisory report upon the questions of fact raised by the pleadings, except as to the amount of damages to be paid for the property if taken by eminent domain.
The land in dispute is a narrow strip of about 25 acres fronting upon Lake Ontario within the city limits of Rochester. By the Treaty of Hartford, entered into between New York and Massachusetts December 16, 1786, land within the territorial limits of New York was granted to Massachusetts in private ownership. The title to the land in controversy depends upon the meaning and effect of this treaty, and upon the construction of a subsequent conveyance by Massachusetts of a part of the land thus acquired, through which conveyance the several defendants other than the state of New York derive their title.
Before 1786 Massachusetts and New York claimed, under conflicting royal grants, both sovereignty and title of a large area of what is now western New York. The controversy was settled by the Treaty of Hartford by which Massachusetts gave up all its claim to sovereignty over the territory, and its claim to private ownership in part of it, and New York ceded to Massachusetts-
'the Right of pre-emption of the Soil from the native Indians and all other the Estate, Right, Title and Property (the Right and Title of Government Sovereignty and Jurisdiction excepted) which the State of New York hath * * * in or to all the Lands and Territories within the following Limits and Bounds that is to say, BEGINNING in the north boundary Line of the State of Pennsylvania in the parallel of forty-two degrees of north Latitude at a point distant eighty-two miles west from the north east Corner of the state of Pennsylvania on Delaware River as the said boundary Line hath been run and marked by the Commissioners appointed by the States of Pennsylvania and New York respectively and from the said Point or Place of beginning running on a due meridian north to the boundary Line between the United States of America and the king of Great Britain thence westerly and southerly along the said boundary Line to a meridian which will pass one mile due East from the northern Termination of the Streight or waters between Lake Ontario and Lake Erie thence South along the said Meridian to the South Shore of Lake Ontario thence on the eastern side of the said Streight by a Line always one mile distant from and parallel to the said Streight to Lake Erie thence due west to the boundary Line between the United States and the king of Great Britain thence along the said boundary Line until it meets with the Line of Cession from the State of New York to the United States thence along the said Line of Cession to the northwest corner of the State of Pennsylvama and thence East along the northern boundary Line of the State of Pennsylvania to the said place of beginning.'
Article 10 of the Treaty provided that Massachusetts might grant the right of pre-emption in the lands thus acquired, 'to any person or persons who by virtue of such Grant shall have good right to extinguish by purchase the claims of the native Indians,' by compliance with certain conditions not now important.