People v. Schermerhorn

19 Barb. 540, 1855 N.Y. App. Div. LEXIS 33

Opinion

By the Court,

S. B. Strong, J.

The patent to the defendants is for lands covered with water in Bushwick creek, adjacent to their upland on the northerly side of it, and extending in front of the creek, into the East river, to the permanent water line of Greenpoint, established in 1849. The principal objections to the patent which I deem it necessary to consider, are that the lands in the creek were private property, and that the commissioners of the land office transcended the power conferred upon them by the statute in extending the grant to lands in the East river.

The plaintiffs allege that the lands in Bushwick creek were granted to the inhabitants of the town of Bushwick under the patent from Governor Dongan, dated in February, 1687, and that they were subsequently conveyed by the proper officers of that town to the plaintiff Taylor. The defendants contend that the colonial governor had no power to make a valid grant of land covered by navigable waters. As the tide ebbs and flows in the creek, it must be considered as navigable, within the technical meaning of that term. The question as to the validity of such grants has been discussed before this court in several cases, and they have been uniformly sustained. ( Gouid v. James, 6 Cowen, 369. Rogers v. Jones, 1 Wend. 237.) The argument against the power, in Rogers v. Jones, was very elaborate and able, and the case was well considered. The patent was issued by Governor Andros to the inhabitants of the town of Oysterbay, and the operative words, and the description of the subjects granted, corresponded with the phraseology of the patent to the town of Bushwick. The court recognize the principle, that the king of England was originally the proprietor of the soil under navigable waters ; that his title extended to the province of New York ; that he had power to grant such title to a subject; that the power was delegated to the colonial governor, as the immediate representative of his sovereign ; and that the patent in that case constituted the lands under the water of the bay the property of the town. That case has been acquiesced in and considered as settling the law from the time when it was decided, (August, 1828,) to the present day. It is of very extensive application on Long Island, and to repudiate its authority now would invalidate numerous titles acquired under its sanction, and cause great confusion and some hardship. In the case under consideration the exterior lines included the whole of Bushwiek creek. The boundary line from the interior strikes the Bast river at a point some distance south from the creek, and it then “runs along th'e river to the Borman’s [Bushwiek] creek, and further the Borman’s corner and David Yeokin’s corner, stretching by the Bast river along to the corner of Maspeth Hills,” [Bewtown creek.] It grants to the persons named, the then “freeholders and inhabitants of the town, and their heirs, survivors and assigns,” the entire tract of land described, with all and singular the creeks, harbors, rivers, rivulets, runs, brooks and streams within the described limits. The terms used were broad enough to pass the title to the lands covered with water in Bushwiek creek.

The patentees named had undoubtedly the capacity to take the title in their own right. The object of the patent, however, was to confer the estate upon the town. That was not incorporated in direct terms. But the conveyance of lands by the sovereign authority invests the grantees with the requisite power to take and hold them. If it is to a body of men under a general description it creates at least a quasi corporation. (Goodell v. Jackson, 20 John. 706. Johnson v. Lervey, 5 Cowen, 397. North Hempstead v. Hempstead, 2 Wend. 109.) The case last cited was decided by the court for the correction of errors, and is conclusive as to the capacity of the patentees to take the title. In that case Chief Justice Savage, who gave the only written opinion, said “ The truth no doubt is that towns are corporations in a certain degree, and so far as corporate powers are granted or are incidental to express grants, towns possess such powers; and particularly in the case now under consideration, it seems to me that corporate powers to the extent expressed were intended to be conferred.” An act passed by the colonial legislature in 1691, confirmed the patents and grants previously made to the towns in the province, and gave to them the capacity to take, hold and convey real estate, if they had it not before.

I -am satisfied that the patent from Governor Dongan and the prior grants which it recites and confirms, vested in the town of Bushwick, as a corporation, the title to the land under water in Bushwick creek, comprehended in the grant from the commissioners of the land office to the defendants, and that so far that grant is void. The acts of our legislature authorizing the grants of land under navigable. waters in and around Long Island, (1 R. S. 208, and Statutes of 1850, eh. 283, p. 621,) can refer only to public property. They were not designed to, nor could they, confer the power to grant the lands of individuals or corporations to others, and particularly without compensation. It is not to be supposed that the commissioners would have made the grant if they had known that the land belonged to the town; and it is plainly inferrible that the letters patent to the defendants were issued through mistake, and in ignorance of a material fact, and that is a valid cause for annulling them at least to the extent of the mistake. The grant to the defendants did not of itself constitute them adverse holders of the land, so as to avoid the subsequent grant to Taylor. In the absence of any possessory acts, and none such were proved, the possession follows the title. I see no objection to the conveyance to Taylor of the land in Bushwick creek, although it is not necessary to pass upon the validity of his claim, as the grant to the defendants would be void whether the title is in him or in the town.

Then as the grant to the defendants of the lands under water in the East river. The act of April 10th, 1850, § 13,

(a) prohibits a grant to any person other than the proprietor of the adjacent land, and declares that any such grant made to any other person shall be void. The interpretations given to the word “adjacent,” by Walker, “are lying close,” “bordering upon something.” The legislature evidently intended to restrict the grant to the owners of the lands bordering upon, or adjoining, the water covering the subject of the proposed patent. In no other way can the privileges reserved to each proprietor, of holding his land adjoining navigable waters free from obstructions by others, and of obtaining a patent for the adjacent land, should any be issued, be maintained. Possibly (according to some late decisions) the legislature might have authorized such grants to other than the riparian proprietors. But it has not done that, and so long as the statute exits these privileges must continue. If the patentee must be confined to the land opposite to his own, the lateral limits must be perpendicular to the shore, not to so much of it only as adjoins the subject of the grant, but to its general course ; otherwise where the shore is irregular and crooked, the grants to which adjoining owners would be entitled (should any be made) might conflict with each other, and there would be no principle upon which the controversies could be settled. There might, it is true, be some difficulty in ascertaining the course of the shore of a river or the ocean, unless the doctrine should be limited, but there is no other rule.which would do justice to all parties ; and although it may at times be of difficult application, it must be sustained.

It appears from the maps produced by both parties that the defendants’ land comes to a point, on the East river. It has no extent adjacent to the water. According to the principle which I conceive to be applicable to such cases, they cannot be entitled to a patent for any thing but a perpendicular line into the river. Confessedly, the land at the outlet of the creek was not theirs, and their land on the margin of the creek was not “ adjacent” to the East river, at least in the statutory sense of the term. The latter objection is not specified in the complaint, and probably if standing alone, it could not have prevailed, at least without an amendment. But the title resulting from the Dongan patent, is distinctly stated and urged as an objection to the grant to the defendants, and that presents an insuperable supervening obstacle.

A considerable portion of the land included in the patent to the defendants is below low water mark in the East river. That is in the county of üew York, as the boundary of that county contiguous to Long Island is at low water mark. The revised statutes require that an applicant for a grant of land under water shall previous to his application publish six weeks’ notice of it in a newspaper printed in the county in which the land is situated. The defendants did not publish any notice of their application in a newspaper printed in the county of Hew York. So far as relates to the land situated in that county, the defendants failed to comply with a positive requisition of the statute. There is also a serious difficulty with the notice which they published in the county of Kings. It is for a different tract of land from that described in their patent. In the notice the land is bounded by lines in a perpendicular direction to the general course of the East river, the northerly boundary running north eighty-two degrees west, and the southerly boundary running south eighty-two degrees east: whereas in the patent those lines are described as running perpendicular to the permanent north line of Green Point, and north eighty-six degrees west, and the other south eighty-six degrees cast. The patent is for land less extensive than that described in the notice; but whether it includes any lands beyond the limits specified in the notice, does not distinctly appear. Probably it does at the southwest corner on the water line. The patent might be valid if for land only described in the notice, although of less extent; but it would be otherwise if for land not included in the description in the notice, at least to the extent of the excess.

The counsel for the defendants contended, on the argument, that the provisions of the statute relative to the notice, were merely directory. Statutory requisitions are deemed directory only when they relate to some immaterial matter, where a-compliance is a matter of convenience rather than of substance. In general, when a power to affect property is conferred upon those ivho have no personal interest in it, such power can be exercised only in the manner and under the circumstances specified in the instrument • creating it. It must be strictly pursued. The commissioners of the land office have no authority to make grants of land under water, except "what is conferred upon them by the statutes. Their jurisdiction is limited, not perhaps in the extent of the lands, but in the cases in which it can be exercised. The statute supposes that there may be objections to the application by the public or by individuals, and therefore very properly provides that preliminary notices shall be given. If such notices are requisite, there is a strong reason why they should be published in the manner specified in the statutes. That is reasonably supposed to be the most effectual for the designed purpose, and neither public officers nor individuals can be expected to look any further. I conceive that such preliminary notice as the statute directs is absolutely necessary to confer jurisdiction of any particular case on the commissioners, and that without it any grant by them would be void. The omission is by the" party making the application, and not as in most of the instances where statutory provisions have been deemed simply directory by public officers ; and there can be no hardship in requiring one claiming under a statute, to conform to its directions, and particularly when the interests of others, such as contesting claimants or the owners of adjoining lands, may be seriously affected. •

[Kings General Term, January 2, 1855.

£. B. Strong, Roosevelt and Dean, Justices.]

Although the limits of the county of New York extend to low water mark on Long Island, the corporation of the city has no title to the land under the water adjoining the shores of the island. Neither the patents to the city nor the statute dividing the state into counties, confer any title to such lands. The statute confers political jurisdiction upon the county, but not the property of the state in its sovereign capacity. That remains in the people. The territorial objection to the grant to the defendants is not that "it interferes with the rights of property of the city or county of New York, but it is applicable only to the sufficiency of the notice.

Other questions of much importance were discussed on the argument, but it is not necessary to consider them. I am satisfied that the decisions of the learned judge on the points which I have discussed were right. They are sufficient to support his judgment, and it should be affirmed.

Laws of 1850, p. 621.