lands under water. Chapter 484, Laws of 1836; chapter 156, Laws of 1848; chapter 313, Laws of 1850. These statutes have been considered many times by the Court of Appeals, with the result that the upland owners have been adjudged to be the owners in fee of the filled-in lands. Williams v. Mayor, etc., of New York, 105 'N. Y. 419, 11 N. E. 829; Langdon v. Mayor, etc., of City of New York, 93 N. Y. 129; In re City of New York (In re Willard Parker Hospital) 217 N. Y. 1, 111 N. E. 256; Bardes v. Herman, 62 Misc. Rep. 428, 114 N. Y. Supp. 1098, affirmed 144 App. Div. 772, 129 N. Y. Supp. 723; 207 N. Y. 745, 101 N. E. 1094. And while this rule was somewhat modified in the recent case of First Const. Co. of Brooklyn v. State of N. Y., 221 N. Y. 295, 116 N. E. 1020, the court in that case held, nevertheless, that the owners of the upland, who filled in pursuant to statutory authority, acquired an equitable interest in the lands amounting practically to an ownership in fee.

[2, 3] In addition, it seems that the question of the title to a part of the premises has been adjudicated by the Court of Appeals in the action of Wetmore v. Brooklyn Gaslight Co., 42 N. Y. 384, and by the General Term in Wetmore v. Atlantic White Lead Co., 37 Barb. 70, where it was held that the predecessor in title to the gas company. owned the fee to a part of the lands involved in this controversy. It seems also that the state has, by grants from the land board made pursuant to statute, granted a good title to these lands. While it may be that the parties to whom these grants were made did not hold the record title to the lands then immediately adjoining the water, the state. was charged with knowledge of that fact and, by making the grants, acquiesced in the claim of the applicant as to the ownership of that land. Such a grant by the state vests title in the upland owner. People v. Steeplechase Park Co., 218 N. Y. 459, 113 N. E. 521, Ann. Cas. 1918B, 1099.

[4,5] At any rate, the grants cannot be attacked collaterally, and as the state has allowed them to stand for over 60 years, their regularity should be presumed. But, aside from every other consideration, the state should be precluded from maintaining this action. Section 362 of the Code of Civil Procedure bars the bringing of an action of this character unless the cause of action accrued within 40 years before the commencement of the action. The testimony here shows that the present occupant of the property and its predecessors in title have been in actual and uninterrupted possession for more than 50 years. They have exercised acts of ownership by fencing and improving the property, and in using it to the exclusion of all others. They have paid the taxes, and their possession has been open, notorious, and in every sense adverse to all others.

It follows that in the first action the complaint must be dismissed, without costs, and in the second action that the plaintiff have judgment as prayed for in the complaint. Please settle findings and judgment on two days' notice, returnable before me at Special Term, Part III, in Brooklyn, on September 1, 1920, at which time I desire to have counsel representing the respective parties present.

(195 N.Y.S.)

(118 Misc. Rep. 686)

PEOPLE v. NEW YORK TRANSIT & TERMINAL CO., Limited, et al.

(Supreme Court, Richmond County. May, 1922.)

I. Navigable waters 37 (4)-Applications of others for letters patent held not to extend easement.

Where deeds from V. to S. of lands "fronting on the bay of Hudson's river" described the lands as bounded in front "by the public highway" and between such lands and the high-water mark was a strip to which S. and his predecessors had only a perpetual easement of use, the right to public ferry being expressly excluded, and after V.'s death representatives of his estate applied for a grant of land under water in front of V.'s property, expressly excepting lands in front of the S. premises, and letters patent were so granted, and in 1823 letters patent were issued to S. for grant of land under water in front of the strip of land to which he did not own the fee, Laws 1815, c. 199, being then in force, declaring that no such grant could be made to any other than the "proprietor," on granting motion for directed verdict for defendants in state's action to set aside the letters patent, held, that the acts of V.'s representatives in making their application did not strengthen the title of S., and that he still held only an easement.

2. Public lands 163-In state's action involving title to land, facts held to show but an error of law on part of state's officers.

Facts in respect to what title S. had having been set forth before the commissioners of the land office and the then Attorney General, who was one of the commissioners having had the same information with reference to the title as the present Attorney General who seeks to maintain this action 98 years after the issuance of letters patent to S., it must be held that there was but an error of law or mistake of law on the part of the state's officers, so that an action is not maintainable under Code Civ. Proc. § 1957, to set aside letters patent for fraud.

3. Limitation of actions 37(4)-Forty-year limitation statute held bar to action to revoke letters patent for fraud.

The limitation of 40 years fixed by Code Civ. Proc. § 362, was a complete bar to an action to revoke letters patent on the ground of fraud.

4. Public lands 163-Issuance of letters patent held only voidable, and premises presumed to have been in possession within statutory time.

The issuance of letters patent to S. in 1823 held only voidable, and under Code Civ. Proc. § 368, the premises were presumed to have been in his possession within the time required by law.

Public lands 163-Facts held to show state's acquiescence in title based on patent it sought to set aside.

Where letters patent were issued by the state in 1898, on defendant's application setting forth that it was the owner and in possession of the property comprised in the S. patent, as well as other lands and patents along that shore, held, that there was an acquiescence in and recognition by the state of the claim of title based on patent issued to S. in 1823.

Proceeding by the People of the State of New York against the New York Transit & Terminal Company, Limited, and others. Suit to set aside letters patent to certain lands under water. Motion for direction of verdict for defendants granted.

Charles D. Newton, Atty. Gen. (George Sanford Parsons, of New York City, of counsel), for the People.

Cravath, Henderson, Leffingwell & De Gersdorff, of New York City (A. S. Gilbert and R. E. T. Riggs, both of New York City, of counsel), for defendant New York Transit & Terminal Co., Limited.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 195 N.Y.S.-20

Stetson, Jennings & Russell, of New York City (T. W. Morris, Jr., of New York City, of counsel), for defendant Guaranty Trust Co.

LEWIS, J. This is an action brought by the Attorney General in the name of the people of the State of New York to set aside letters patent issued in 1823 to James Swan, upon the ground that the patentee was not the owner of the lands adjacent to the land under water comprised in the letters patent at the time of their issuance.

[1] It appears that Swan held his lands under title derived from one Van Duzer. While the deeds speak of the lands as "fronting on the bay of Hudson's river," they are also described as being bounded in front "by the public highway," and the fact is that there was a strip between the lots conveyed and the high-water mark which did. not pass by the deed and to which Swan (and his predecessors) had only a perpetual easement of use for his own purposes and expressly excluding the right to maintain a public ferry. Van Duzer died in 1814, which was after the lots held by Swan had passed from him, and about 1816 the representatives of Van Duzer's estate applied to the commissioners of the land office for a grant of land under water in front of the Van Duzer property, but expressly excepting from the application the lands under water in front of the Swan premises, and the letters patent were so granted.

The principal questions presented are these:

(1) Was Swan in 1823 entitled to apply for a grant of land under water in front of the strip of land in which he did not then own the fee, but held merely an easement?

(2) Did the acts of the Van Duzer estate representatives in applying for and obtaining the grant of land under water in front of the adjoining premises in 1816 constitute a transfer of title to the beach strip, by estoppel or disclaimer, so as to entitle Swan to apply for the grant in question?

(3) Have the rights of the state been barred or forfeited by reason of section 362 of the Code of Civil Procedure?

Chapter 199 of the Laws of 1815, in force at the time, provided that no grant shall be made to any other than "the proprietor" of the adjacent lands. People ex rel. Banks v. Colgate, 67 N. Y. 512, is decisive. of the proposition that an easement over land does not create an estate in the land, and that the one holding such easement is not the proprietor of the lands. The acts of the representatives of the Van Duzer estate in applying for the grant of the lands adjoining did not operate to strengthen Swan's title; he still held only an easement.

[2] But an action such as the present is, according to section 1957 of the Code of Civil Procedure, maintainable where the letters patent were obtained by means of fraudulent suggestion or concealment of a material fact, or where issued in ignorance of a material fact, or through mistake. The mistake contemplated is undoubtedly a mistake of fact. The actual facts in respect to what title Swan had were by him fully set before the commissioners of the land office, and the then Attorney General, who was one of the commissioners, had the same information with reference to the title as the present Attorney General

(195 N.Y.S.)

who seeks to maintain this action 98 years thereafter. There was but an error of law or mistake of law on the part of the state's officers, and the action is not maintainable under the section referred to.

[3] Furthermore, the statute of limitations is a complete bar to the maintenance of the action. At the time of the issuance of the grants in 1863, chapter 183 of the Laws of 1801 was in force, with which section 362 of the Code of Civil Procedure is substantially identical, and fixed a limitation of 40 years, and People v. Clarke, 9 N. Y. 349, establishes that such period is a complete bar to an action by the state to revoke letters patent on the ground of fraud. The Attorney General, however, cites Hamlin v. People, 155 App. Div. 680, 140 N. Y. Supp. 63, and People v. Baldwin, 197 App. Div. 285, 188 N. Y. Supp. 542, to the contrary. These cases hold no more than that title_cannot arise against the state by adverse possession only, and in the Baldwin Case the court recognized the distinction between lands held by the state as sovereign, which may not be alienated, and lands held by it as proprietor, which may be, and that as to the latter a statute of limitations may operate as a bar. Lands under water are alienable. People v. American Sugar Refining Co., 98 Misc. Rep. 703, 706, 163 N. Y. Supp. 456.

[4] It is also claimed that section 362 of the Code of Civil Proce、. dure is inapplicable, because there were no acts of possession by defendant until 40 years preceding the beginning of this action, and that a period of limitation against the state does not begin to run from the date of the alleged void act, but from the date when the defendant first asserted rights under it. Section 368 of the Code provides that a person who establishes a legal title to the premises is presumed to have been possessed thereof within the time required by law. See, also, Whitman v. City of New York, 85 App. Div. 468, 83 N. Y. Supp. 465. The issuance of the letters patent to Swan in 1823 was, at best, only voidable, and, under the section of the Code and the authority cited, the premises are presumed to have been in possession of Swan.

[5] Finally, it appears that in 1898 the state issued letters patent to the defendant New York Transit & Terminal Company in compliance. with an application by that company, wherein it was set forth that it was the owner and in possession of the property comprised in the Swan patent, as well as of other lands and patents along that shore. This was an acquiescence and a recognition of the claim of title based upon the patent issued to Swan. People v. Brooklyn Union Gas Co and Brooklyn Edison Co. (Sup.) 195 N. Y. Supp. 303.

For the foregoing reasons, the motion for the direction of a verdict for the defendants is granted.

Ordered accordingly.

(202 App. Div. 7)

O'CONNOR v. O'CONNOR et al.

(Supreme Court, Appellate Division, First Department. July 14, 1922.) Reference 7(2)-Proof of fraudulent obtaining of release held required before order of reference for accounting.

Before a reference for an accounting can be held in an action to set aside a release to a guardian, as secured by fraud, and to have him account for his guardianship, plaintiff must prove that fraud and have the release set aside.

Appeal from Supreme Court, New York County.

Action by Marion C. O'Connor against Cornelius O'Connor and another. From an order of compulsory reference, defendants appeal. Reversed, and motion denied.

Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and GREENBAUM, JJ.

John F. Cowan, of New York City, for appellant O'Connor. Frederick Behr, of New York City, for appellant American Bonding Co. of Baltimore.

Wm. F. Burrough, of New York City, for respondent.

DOWLING, J. This action is brought by plaintiff against her father, Cornelius O'Connor, who was appointed general guardian of the real and personal property of plaintiff, then an infant, by an order of the Surrogate's Court of the County of Kings on August 2, 1909, and against the American Bonding Company of Baltimore and the Illinois Surety Company, as sureties on the bond of the guardian in the sum of $45,000 for the faithful performance of his duties as such. The Illinois Surety Company has not been served, being no longer in existence.

In her complaint plaintiff sets forth that her guardian entered upon the discharge of his duties and made a certain lease of part of the property at an inadequate rental, and for a period beyond plaintiff's majority, without the consent of the court; that he has received moneys aggregating $67,594.67, and has disbursed sums aggregating $50,016.94, according to his annual reports as filed, none of which has been approved by the court; that the sum of $9,900 has been invested by him out of plaintiff's income without the approval of the court; and that included in the guardian's disbursements according to his report are allowances approved by the court amounting to $7,555.92 for plaintiff's maintenance and support, for which no vouchers are filed, nor are the amounts itemized; and that items for coal, gas, and ice are also charged against plaintiff, amounting to $727.89.

It is then averred that on June 1, 1918, two weeks after plaintiff 、 became of age, her guardian paid her $5,000 in cash and turned over three certain mortgages to her, but withheld a fourth bond and mortgage; that he represented that these were all the assets belonging to her in his possession as guardian, that he had dealt honestly by her,

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes