25

tute a quorum. So the assent of two-thirds of the members elected to each branch of the Legislature is requisite to every bill appropriating the public property for local or private purposes,26 and a local or a private bill may embrace only one subject, which shall be expressed in the title.27

While the presumption is that an act of the Legislature is in conformity with these constitutional restrictions,28 how far the courts will receive independent testimony tending to show a noncompliance of the Legislature is the question.29 It is said, in any event, that the noncompliance must be pleaded in order to be taken advantage of.30

Patents, how Construed. Grants by letters-patent are to be construed most strongly for the Crown, and since independence, for the State.31 But this doctrine is subject to limitations: The patents. must be open to several intents before such a construction is applicable,32 and where the grant is for a valuable consideration, they must be construed most favorably for the patentee.33

25 Const. of 1894, art. III, § 25; Darlington v. The Mayor, etc., 31 N. Y. 164, 185.

26 Const. of 1894, § 20, art. III. 27 Const. of 1894, § 16, art. III. 28 People v. Supervisors, etc., 8 N. Y. 317.

29 W. W. M. Co. v. Shannahan, 128 N. Y. 345, 360.

30 People v. Supervisors, etc., 8 N. Y. 317; cf. People ex rel., etc. v. Commissioners, 54 id. 276.

312 Black. Comm. 347; Langdon v. Mayor, etc., 93 N. Y. 145; Town

of North Hempstead v. Eldredge, III App. Div. 789, 800.

32 See cases discussed, Forsythe's Cases and Opinion, 175, 176.

33 Sir John Moline's Case, 10 Rep. 65; Langdon v. The Mayor, etc., 93 N. Y. 129, 147; People v. Staten Island Ferry Co., 68 id. 7; N. Y. Central R. R. Co. v. Brockway Brick Co., 10 App. Div. 387; Wright v. Syracuse R. R. Co., 92 Hun, 32; People v. Deehan, 153 N. Y. 528; Fulton L., H. & P. Co. v. State of New York, 62 Misc. 189. See under section 295, Real Prop. Law, infra.

CONSTITUTIONAL PROVISIONS1

RELATING TO THE

LAW OF REAL PROPERTY IN NEW YORK.

Constitution adopted September 28, 1894.

ARTICLE I.

"§ 6. No person shall be held to answer for a capital or otherwise infamous crime (except in cases of impeachment, and in cases of militia when in actual service, and the land and naval forces in time of war, or which this State may keep with the consent of Congress in time of peace, and in cases of petit larceny, under the regulation of the Legislature), unless on presentment or indictment of a grand jury, and in any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions. No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.

§ 7. When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited. General laws may be passed permitting the owners or occupants of agricultural lands to construct and maintain for the drainage thereof, necessary drains, ditches and dykes

1 As the following constitutional provisions are closely allied to the "Real Property Law," they are inserted for the reader's convenience.

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upon the lands of others, under proper restrictions and with just compensation, but no special laws shall be enacted for such purposes.

§ 10. The people of this State, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the State; and all lands the title to which shall fail, from a defect of heirs, shall revert, or escheat to the people.

§ 11. All feudal tenures of every description, with all their incidents, are declared to be abolished, saving, however, all rents and services certain which at any time heretofore have been lawfully created or reserved.

§ 12. All lands within this State are declared to be allodial, so that, subject only to the liability to eschezi, the entire and absolute property is vested in the owners, according to the nature of their respective estates.

13. No lease or grant of agricultural land, for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid.

§ 14. All fines, quarter sales, or other like restraints upon alienation, reserved in any grant of land hereafter to be made, shall be void.

§ 15. No purchase or contract for the sale of lands in this State, made since the fourteenth day of October, one thousand seven hundred and seventy-five; or which may hereafter be made, of, or with the Indians, shall be valid, unless made under the authority, and with the consent of the Legislature.

§ 16. Such parts of the common law, and of the acts of the Legislature of the Colony of New York, as together did form the law of the said colony, on the nineteenth day of April, one thousand seven hundred and seventy-five, and the resolutions of the Congress of the said colony, and of the convention of the State of New York, in force on the twentieth day of April, one thousand seven hundred and seventy-seven, which have not since expired, or been repealed or altered; and such acts of the Legislature of this State as are now in force, shall be and continue the law of this State, subject to such alterations as the Legislature shall make concerning the same. But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this Constitution, are hereby abrogated.

§ 17. All grants of land within this State, made by the King of Great Britain, or persons acting under his authority, after the four

teenth day of October, one thousand seven hundred and seventyfive, shall be null and void; but nothing contained in this Constitution shall affect any grants of land within this State, made by the authority of the said king or his predecessors, or shall annul any charters to bodies politic and corporate; by him or them made, before that day; or shall affect any such grants or charters since made by this State, or by persons acting under its authority; or shall impair the obligation of any debts contracted by the State, or individuals, or bodies corporate, or any other rights of property, or any suits, actions, rights of action or other proceedings in courts of justice."

Comments on the Constitution. Sections 6 and 7 of article I of the Constitution relate particularly to the exercise of the power of eminent domain by the State,2 and need not be discussed in this treatise.

The Federal government is also precluded from taking private property for public use without just compensation.3

Sections 10, 11 and 12 of article I of the Constitution were, prior to 1846, contained in the Revised Statutes, and were transferred to the Constitution of 1846,5 not without objection from lawyers in the convention, who deemed that the re-enactment of section II, at least, was wholly unnecessary; feudal tenures never having existed in New York since the English occupation in 1664. They had been abolished in England by the Act 12 Charles II, chapter 24, passed before the conquest of New York by the English.8

The real meaning of section 10 is more readily perceived if we consider its origin. It is a statement taken out of an act adopted criginally during the War of Independence and subsequently placed in the statute book. It was intended to express the fact that upon the subversion of the Crown, the State (i. e., The People in their

2 Matter of Opening Oneida Street, 22 Misc. 235; Clark V. Water Commissioners, 148 N. Y. 6; Egerer v. N. Y. C. & H. R. R. R. Co., 70 App. Div. 421; McMillan v. Klaw & Erlanger Co., 107 App. Div. 407. 3 Amendment Const. of U. S., art. V.

41 R. S. 718, §§ 1, 3.

5 Art. I, §§ 11, 12, 13.

Debates of Proceedings of Convention of 1846.

7 People v. Van Rensselaer, 9 N. Y. p. 338; Van Rensselaer v. Smith, 27 Barb. 149; Overbagh v. Patrie, 8 id. 28, 40, affd., 6 N. Y. 510; note of Revisers to 1 R. S. 718, §§ 3, 4. 8 Vide supra, Introduction, pp. 46,

57.

9 Journ. Prov. Conv., I, 554; chap. 25, Laws 1779; 1 J. & V. 44; I R. S. 718, § 3.

political capacity) succeeded to the rights of the Crown in respect of landed property.10

Titles and their Source. The original settlements of the Hudson River shores and of a part of Long Island by the Dutch, and the subsequent conquest by the English in 1664, are familiar.11 Consequently in legal theory, all titles to estates in New York emanate from the State, the Crown of England,12 or from an earlier Dutch. grant.13 But as the Crown ordered all Dutch grants in New York to be surrendered or confirmed, the presumption now is that this law was obeyed, and that all Dutch grants were converted into the tenure by free and common socage.

14

In the Province of New York the Crown was the sole allodial owner of all the lands not patented prior to August, 1664. The heritable estates in lands patented before that time were afterward converted into heritable estates in free and common socage, held of the Crown.15 The earlier Dutch estates have possessed, by the terms of their confirmation, some qualities of their own, which it is unnecessary now to consider.16 The Dutch estates in question, however, depend on the terms of their confirmation by the English, and the subsequent course of events in the Province and State.17

Crown-grants, Tenure. The Crown granted most of the original estates in the lands lying in New York to its subjects,18 and in these

10 See paraphrase of this doctrine in Beekman v. Saratoga & Schenectady R. R. Co., 3 Pai. 45, p. 72. 11 See Introduction, supra, pp. 54, 62.

12 Wendell v. People, 8 Wend. 183, 188; People v. Livingston, 8 Barb. 253, 276; People v. Trinity Church, 22 N. Y. 44, 46; Mitchel v. The United States, 9 Peters, p. 748; Jackson ex dem., etc. v. Ingraham, 4 Johns. 163, 182; Seneca Nation v. Christie, 126 N. Y. 122; McKinnon v. Bliss, 21 id. 206.

13 People v. Clarke, 10 Barb. 120, 141; Dunham v. Williams, 37 N. Y. 251; Smith v. City of Rochester, 92 id. 463, 482; Beekman v. Saratoga & Schenectady R. R. Co., 3 Pai. p. 66.

14 See note of original Revisers to 1 R. S. 718, §§ 3, 4; Hinckel v. Stevens, 165 N. Y. 171; Paige v. Schenectady Railway Co., 84 App. Div. 91; 178 N. Y. 102, 110.

15 See the method of conversion in Hoffman's Treatise on Estates, City of N. Y., II, 44, 46; Bogardus v. Trinity Church, 4 Sandf. Ch. 699; Jackson ex dem., etc. v. Murray, 7 Johns. 5.

16 Dunham v. Williams, 37 N. Y. 251; Smith v. City of Rochester, 92 id. 463, 482.

17 Canal Appraisers v. People, 17 Wend. 571; People v. Canal Appraisers, 33 N. Y. 461; Brief of Mr. Atty.-Genl., in People v. Page, sep-、 arately printed, 39 App. Div. 110; Beekman v. Saratoga & Schenectady R. R. Co., 3 Pai. at p. 66; Hinckel v. Stevens, 165 N. Y. 171.

18I pass over the estate to the Duke of York which subsequently merged in his Crown and devolved with it. The history of this devolution is very familiar to students of our legal history. Supra, pp. 56, 63.