People ex rel. Underhill v. Saxton

15 A.D. 263, 44 N.Y.S. 211

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1897
• Status: Published

Opinion

Merwin, J.:

The main questions in the four cases submitted are the same, and the eases may, therefore, be considered together.

The applications were presented to the commissioners on March 16, 1896, and, as stated in the returns, were substantially as required by the rules of the commissioners. Each application was accompanied by two maps showing the uplands of the respective applicants, the land under water applied for and the shore lines adjacent thereto. Notice of each application was published and posted as required by section 71 of chapter 317 of the Laws of 1894, being the Public Lands Law. The notice stated that any person deeming himself liable to injury by the grant desired, should file with the commissioners a remonstrance stating his reasons for opposing the grant. Thereupon a remonstrance was filed on behalf of the town of Oyster Bay, in which it was claimed that the town was the owner of the premises applied for. A remonstrance was also filed, purporting to be signed by a large number of residents and taxpayers of the town, opposing the applications upon the ground that the granting of them Avould seriously interfere Avith the occupation of many people as baymen, and that the premises, if not belonging to the toAvn, belonged to the State in trust for all its inhabitants and Avere not needed by the applicants to pfomote commerce or for the purpose of beneficial enjoyment by the adjoining owners. An affidavit Avas also filed, made by the supervisor of the tOAvn and several other town officers, stating that they did not believe it to be necessary, for the full beneficial enjoyment of the lands applied for, that the applicants should be granted an estate in fee. In accordance with the standing resolution of the commissioners, the applications were referred to the standing committee on hearing remonstrances, such committee consisting of the Attorney-General and the State Engineer; and the State Treasurer AAras by resolution added to the committee. The committee Avere directed to hear the parties in interest and report to the board. After due notice a hearing was had, on the 26th of April, 1896, at the office of the Attorney-General, before the State Engineer, the State Treasurer and Mr. Baker, land clerk, representing the Attorney-General by his direction. The remonstrants at the commencement of the hearing-objected to the hearing before a committee, and claimed that it should be before the full board or a legal quorum thereof. This objection was overruled by the committee and the hearing proceeded. This ruling is claimed to be error.

Had the Attorney-General been present, there would have been a legal quorum of the board. (§ 2, chap. 317 of 1894.) In his absence a majority and, therefore, a quorum of the committee was present. No objection was made to the presence of Mr. Baker or to his acting with the committee. He was there apparently as their legal adviser. He was not, however, a member of the committee. A majority of the committee being present, they had a right to act on the subject referred, so that the only question on this subject is whether the board had a right to make the reference to the committee. It was in accordance with their practice in such cases.

By section 9 of the act above referred to it is provided as follows:

“ § 9. Before granting any lands or any interest therein, including lands under water, the commissioners may summarily inquire into the rights of the person applying for such grant, on such proof as, by regulation, they prescribe. They may take testimony and proofs in any matter or application before them, and the fees of witnesses and the expenses of procuring their attendance, on being certified by the commissioners, shall be paid by the treasurer on the warrant of the comptroller. They shall establish reasonable rules to guard against false or fraudulent applications and for such other purposes as they may deem proper.”

Under this, the commissioners had the right to summarily inquire into the rights of the applicants, on such proof as by regulation they might prescribe. This would seem broad enough to cover the whole proceeding. The statute makes no special provision for the manner in which remonstrances shall be heard or considered. The parties were given a full and free hearing before the committee. The proofs taken by the committee were reported to the board, and, as the commissioners certify, opportunity was given for a further hearing before the commission in regular meeting assembled. The objection, when taken before the committee, was treated as formal, as from its character it naturally would be. The board itself was the proper body to consider an objection of that kind. It does not appear to have been raised before the board, although there was opportunity for doing so. It does not, I think, furnish any good ground for revei-sal. (See People ex rel. Flanagan v. Bd. Police Comrs., 93 N. Y. 97, 103.)

A point is made as to another objection, taken by the remonstrants at the same stage of the case, that the affirmative was upon the applicants, and they should be required to give their proof first. The committee were directed to hear the parties in interest and report to the board. The papers already filed with the board by either side were apparently before the committee. The duty of the committee was to take such proof as any party might present. It was not important which side presented its proof first as long as full opportunity was given to all to present all the proof they desired. The decision of the case was not with the committee, but with the board. It is not apparent that in the ruling referred to any rule of law affecting the rights of the parties was violated to the prejudice of the relator.

A more important question arises upon the subject of the ownership of the premises. The claim of the town of Oyster Bay is that all the lands applied for are within the limits of Hempstead harbor, and that Hempstead harbor, at least the eastern part of it, including the lands in question, is within the bounds of a tract of land granted by Gov. Andros, by patent dated September 29, 1677, to Henry Townsend and others, as patentees on behalf of the town. In this patent there is first a recital as follows :

“ Whereas, there is a certain town in the north riding of Yorkshire upon Long Island commonly called and known by the name of Oyster Bay, situated, lying and being on the north side of the said island toward the sound, having a certain tract of land 'thereunto belonging, the east bounds whereof being at the head of the Cold Spring, and so to range upon the southward line from the sound or north sea, to the south sea across the island to the southeast bounds of their south meadows, at a certain river called by the Indians ‘ Narrasketuck; ’ thence running along the seacoast westerly to another certain river called ‘ Arrasquaung; ’ then northerly to the eastward extent of the great plains, when the line divides Hemp-stead and Robert Williams’ bounds; from thence, stretching westerly, along the middle of the said plains till it bears south from the said Robert Williams’ marked tree at the point of trees called ‘ Cantiage ; ’ then on a north line to the said marked tree; then on a northwest line, somewhat westerly, to the head of Hempstead Harbor on the east side so to sound; and from thence easterly along the sound to the aforementioned north and south line which runs across the island by the Gold Spring aforesaid, bounded on the north by the sound, on the east by Huntington limits, on the south part by the sea and part by Hempstead limits, and ón the west by the bounds of Hempstead aforesaid, including all the necks of land and islands within the aforesaid described bounds and limits.”

Then follows the grant-to the patentees of “ all the aforementioned tract of land within the said bounds, with the islands and necks of land as aforesaid, together with all the woods and plains, meadows, pastures, swamps, marshes, waters, lakes, rivers, fishing, hawking, hunting and fowling, and all other profits, commodities, emoluments and hereditaments to the said town tract of land and premises within the limits and bounds aforementioned described, belonging or in anywise appertaining.”

The remonstrants also put in evidence a patent of the town of Hempstead dated April 17,1685, from Gov. Dongan to John Seaman and others, as patentees for the benefit- of that town. This town is westerly of the town of Oyster Bay. The description in the patent, after proceeding on the west side to the sound or East river, proceeds as follows : “ and so round the points of the necks till it comes to Hempstead Harbor, and so up the Harbor to a certain barren sand beach, and from thence up a direct line till it comes to a marked tree on the east side of Cautiagge Point, and from thence a south line to the middle of the plains, and from thence a due east line to the utmost extent of the Great Plains, and from thence upon a straight line to a certain tree marked in a neck called Maskachoung, and so from thence up a due south line to the South Sea, (and the said South Sea is to be the south bounds from the east line to the west line, and the sound or East River to he the northerly bounds), as according to several deeds purchased from Indian owners, and the patent from the Dutch Governor, William Iiieft, relation thereto being had doth more fully and at large appear.”

It is not claimed that the town, under the Andros patent, had any title to lands on the sound beyond the ordinary high-water mark. The claim is that Hempstead harbor is not a part of the sound, and that the lands in question are in the harbor. It is not clear that the lands are within the bounds of the harbor. Where the line is between the harbor and the sound does not appear, except as it may be inferred from the maps put in evidence on either side. According to the maps of the remonstrants, the lands are in the harbor; according to the maps of the applicants, the lands are in the sound. The harbor is at the northwesterly border of the town of Oyster Bay and the northeasterly border of the town of Hempstead (now North Hempstead). The sides of the harbor or bay proceeding toward the sound diverge, and where the sound may be deemed to commence is not made clear.

Assuming, however, that the lands are within the harbor, the question then is whether the Andros patent includes them.

We are referred to a number of cases where there has been litigation Over the title or use of lands under ivater in towns on Long Island (Rogers v. Jones, 1 Wend. 237; Trustees of Brookhaven v. Strong, 60 N. Y. 56; Robins v. Ackerly, 91 id. 98; Hand v. Newton, 92 id. 88; Town of North Hempstead v. Thompson, 115 id. 635 ; S. C., 8 N. Y. St. Repr. 901; Town of South Hampton v. Mecox Bay Oyster Co., 116 N. Y. 1; Lowndes v. Huntington, 153 U. S. 1), but none reach the question here presented, or relate to the title of lands in Hempstead harbor.

We may assume that if the lands are within the town patent, the State had no right to interfere.

The argument of the remonstrants is based mainly on that part of the general description in the patent Avliich bounds the toivn “ on the north by the sound; * * * on the west by the bounds of Hemp-stead aforesaid.” It is said that the eastern boundary of Hemp-stead, as stated in the Dongan patent, does not include any of the harbor, and that, therefore, the Avestern boundary of Oyster Bay includes the Avhole.

The Dongan patent Avas given eight years after the Andros patent, and Avliat the description was in the Kieft patent, referred to in the Dongan patent, does not appear. The Kieft patent was given in 1644. (North Hempstead v. Hempstead, 2 Wend. 110 ; 1 Brodhead’s Hist. N. Y. 388.)

In the particular description in the Andros patent, the westerly line goes “ to the head of Hempstead Harbor on the east side so to sound.” This would only go to high-water mark along the east side of the harbor and would exclude the harbor and the land in controversy. The general rule is that if there is a particular description and a general one, the particular one must prevail. (Tiedeman on Real Prop. § 829 ; Burnett v. Wadsworth. 57 N. Y. 634; Sherman v. McKeon, 38 id. 272.) The intention is made manifest by the particular statement, and in the present case would seem to be quite definite. The general reference to the boundary on the west “ by the bounds of Hempstead aforesaid,” may be construed to refer only to the bounds of Hempstead already therein specified, and as the boundary of Hempstead on the harbor is not specified, there could be no inference of any intention to change or vary the particular boundary on the harbor or bay as previously stated in the patent. Nor is it probable that the control of the entire bay would be given to one town. It is more probable, in view of the size and location of the harbor, that the design was not to give it to either. Some of the early patents include in terms the bays, but that is not the case here.

The action of the board of supervisors of Queens county, pursuant to chapter 361 of the Laws of 1870, in fixing the center of the harbor as the boundary line between the town of North Hempstead and Oyster Bay (Chap. 600, Laws of 1880), would not operate to place ownership in either town of any lands it did not before possess. It is hardly claimed to have that effect.

The determination of the commissioners was that the remonstrants failed to prove that the town of Oyster Bay owned the lands in question. We discover no good reason for disturbing this conclusion. Presumptively, the lands under tide water belonged to the State and the commissioners had a right to act on this presumption in the absence of proof to the contrary, The commissioners or their predecessors had so acted previously in making grants in the same locality. There was no question as to the ownership by the applicants of the adjacent uplands.

It is further claimed that no sufficient necessity is apparent for granting the applications, or, if at all, not to the extent claimed, and that the rights of the public will be improperly interfered with.

By the statute (§ 70, Public Lands Law, as amended by chap. 208, Laws of 1895) grants are authorized of land under water adjacent to and surrounding Long Island, but not beyond any permanent exterior water line established by law. It is provided that the Oommissioners of the Land Office may grant, in perpetuity or otherwise, to the owners of the lands adjacent, “to promote the commerce of this State or for the purpose of beneficial enjoyment thereof by such owners, or for agricultural purposes, so much of said lauds under water as they deem necessary for that purpose.”

The commissioners are evidently clothed with a discretion in the matter. In People ex rel. Burnham v. Jones (112 N. Y. 597) it was assumed that this discretion as to whether a grant shall be made or not, assuming they had a right to act and dealt with the proper party, may not be controlled. The determination of inferior jurisdictions in matters within that jurisdiction which are confided, to their discretion are not reviewable. (People ex rel. Kent v. Board of Fire Comrs., etc., 100 N. Y. 82.)

The applicants here sought the grants for the purpose of the beneficial enjoyment of their adjacent uplands, in order to obtain dockage or anchorage or. harbor facilities, or protect their uplands from the violence of the sea. The proofs before the commissioners presented the situation, and their judgment as to the necessity or the extent of the grants should not be interfered with. It is not claimed that they go beyond any established exterior line.

There was conflicting evidence as to the extent that the occupation of baymen would be disturbed, or the right of the public to obtain clams or oysters. The Legislature in authorizing such grants did not make the authority of the commissioners depend upon whether the lands were used' by the public. Assuming, however, that the circumstances under which the public are using the property should be considered by the commissioners, it was a matter that affected their discretion, and we cannot say, as matter of law, that the interests of the public required the denial of the applications. The commissioners in their return say that the granting of the applications was not to the injury or prejudice of the remonstrants or any person whatever.

The general rule is that the title of the State to the seacoast and the shores of tidal rivers cannot be alienated except for some public purpose, or some reasonable use which can fairly be said to be for the public benefit. (Coxe v. State, 144 N. Y. 396 ; Illinois Central R. R. Co. v. Illinois, 146 U. S. 387.) The right, however, to make grants to the owners of adjacent uplands, either for beneficial enjoyment or for commercial purposes, has long been recognized. (Coxe v. State, supra, at p. 407; Trustees of Brookhaven v. Strong, 60 N. Y. 70.)

It is suggested that the commissioners in accepting, on the subject of the necessity of the grant, the affidavit of one of the assessors of the town instead of two, as required by their rules, acted improperly, and, therefore, a good reason is presented for setting .aside their determination. Ho statutory requirement was violated. The rules which they had themselves established they could waive or modify. We cannot say, as claimed by the remonstrants, that the commissioners did not act in good faith. It seems to be conceded that they had a discretion in the matter. We cannot say that they have improperly exercised it. The town itself claimed the whole property, and its officers might well hesitate to aid parties who, as the body of the town claimed, were seeking to obtain property or rights that belonged to the town.

We fail to find any tenable ground for setting aside the determinations of the commissioners. They should, therefore, be confirmed.

All concurred.

Determination of commissioners confirmed, with costs.

Similar order in the other cases.