Lancey v. Piepgras

• Decision Date: 11 April 1893
• Citation: 33 N.E. 822,138 N.Y. 26
• Parties: DE LANCEY v. PIEPGRAS et al.
• Court: New York Court of Appeals Court of Appeals

138 N.Y. 26

33 N.E. 822

DE LANCEY

v.PIEPGRAS et al.

Court of Appeals of New York.

April 11, 1893.

Appeal from supreme court, general term, second department.

Ejectment by Elizabeth De Lancey against Henry Piepgras and others. From a judgment of the general term (17 N. Y. Supp. 681) affirming a judgment for plaintiff, Piepgras appeals. Modified.

Jas. R. Steers, Jr.,(George A. Black and Martin J. Keogh, of counsel,) for appellant,

Walter D. Edmonds and John Hunter, Jr., for respondent.

MAYNARD, J.

The plaintiff and the defendant John Hunter have recovered in ejectment from the appellant the possession of a strip of land under water adjacent to Minnefords, or City island, in Long Island sound, extending into the sound 400 feet at right angles to ordinary high-water mark. The premises are a part of a tract of land under water of the same width, comprising about 145 acres, completely surrounding the island, and described in letters patent issued to Benijamin Palmer, May 27, 1763, in the name of the crown of Great Britain, by Robert Monckton, captain general and governor in chief of the province of New York. The respondent's title and right of recovery depend, in the first instance, upon the operation and effect of this grant, the habendum clause of which provides that the lands shall be held by Palmer in free and common socage, as of the manor of East Greenwich, in the county of Kent, yielding, rendering, and paying therefor yearly, and every year forever, to the king of Great Britain, at his customhouse in New York city, to his collector or receiver general there for the time being on Lady Day, the annual rent of five shillings sterling, in lieu and stead of all other rents, services, dues, duties, and demands whatsoever, for the premises granted, and every part and parcel thereof; and also upon the validity of a comptroller's deed of the same, executed in 1836 to the devisor of the respondent under proceedings had by the authority of the state for a forfeiture of the patent for nonpayment of the quitrents.

Many objections are urged against this recovery by the appellant's counsel with great learning and ability, which demand the most serious attention, and which we will considerin the order in which they arise in the development of the respondent's title.

1. It is insisted that the royal grant to Palmer is overreached by another patent from the crown, issued in 1666 to Thomas Pell, and confirmed in 1687 to his nephew, John Pell, creating the manor of Pelham, comprising a large territory upon the mainland opposite Minneford island, and including the island, and by virtue of which it is claimed that the title to the land under water about the island became vested in the patentee. It must be admitted that if the patent to Pell was an ordinary conveyance, even from the sovereign power, it would not extend beyond high-water mark, and that lands below that point would not pass by the deed, unless actually included in the expressed metes and bounds of the grant. Rogers v. Jones, 1 Wend. 237;Gould v. James, 6 Cow. 369; Cheney v. Guptill, 2 Hann. 379; Trustees v. Strong, 60 N. Y. 56;Roe v. Strong, 107 N. Y. 358, 14 N. E. Rep. 294. The descriptive part of the instrument is limited to the mainland and the islands in the sound opposite. It is a conveyance of a tract upon the mainland, bounded on the south by Long Island sound, with all the islands in the sound not previously granted or disposed of, ‘lying before the tract upon the mainland,’ which extends inland eight English miles, with the same breadth in the rear ‘as it is along by the sound.’ The burden of proof is upon these who claim below high-water mark, and it has been held that a private grant, which included an arm of the sea, with all islands, ponds, ways, waters, water courses, havens, and ports, was insufficient at common law to convey the soil between high and low water mark. Gould, Waters, 69; East Haven v. Heming way, 7 Conn. 186, 200;Middletown v. Sage, 8 Conn. 221;Jackson v. Porter, 1 Paine, 457;Com. v. Roxbury, 9 Gray, 457, 478, 493.

It is true that the patent to Pell was also a grant of a manorial franchise, with administrative and judicial powers, such as the establishment of a court leet and a court baron; and the learned counsel, whose brief is specially devoted to this point, takes the ground that the conveyance must be regarded as a public grant, which includes within the scope of its operation all the lands under water to which the jurisdiction of the lord of the manor extended. In some measure the right of local self-government was given, and it was declared in the deed that the lands and premises conveyed should forever thereafter, ‘in all cases, things, and matters, be deemed, reputed, taken, and held as an absolute, intyre, infranchised to wneshipp, mannor, and place of itselfe in this government,’ and that it should hold and enjoy the same privileges and immunities as any town within the colony. This bestowal of political rights and powers did not, however, enlarge the property rights of the patentee. They were franchises of a public character, to be held and exercised by him as the representative of the crown or of the colonial government. It may be admitted that civil and criminal processes issued by him might be lawfully executed upon the adjacent waters, but the proprietorship of the soil under the water would not follow as an incident of this power. The right of jurisdiction and the right of property must not be confounded. The former could be restricted, or even abrogated, by the authority which granted it, and became subject to the control of the state upon the adoption of the first constitution. The latter was a matter of private ownership, of which the proprietor could not be divested, except by his own act or by due process of law.

The case of Martin v. Waddell, 16 Pet. 369, is cited at great length by counsel, but we think it is destructive of the appellant's claim in this respect. It involved the construction of the grant made by Charles II. to the duke of York, by means of which authority was given to establish a colonial government over a vast extent of territory bordering upon the seacoast. It was there held that the patentee became vested with the title to the lands under water, not, however, in his private right, but as the representative of the crown, and as a part of the royal prerogatives, or jura regalia, which it was presumed he would administer for the public good. While these colonial charters were in the nature of grants, and were conferred by the king as proprietor, yet, as they respectively created governments, they were not construed as his other grants were, that is, as excluding the adjacent waters, but as including them, and thus the government of the respective colonies had ample authority to alter the established law with regard to their tide waters, or to grant an exclusive property therein, at their discretion. Angell, Tide Waters, 37, 38. The different rule of construction to be applied in the two classes of cases is defined with great clearness and emphasis by Chief Justice Taney. The grant is to be applied with strictness where it is the gift of some prerogative right to be held by the citizen as a franchise, and which becomes private property in his hands. It will not be presumed that the sovereign power intended to part with any of its prerogatives, or with any portion of the public domain, unless clear and express words are used to denote the intention. But colonial charters were designed to be the instruments upon which the institutions of a great political community were to be founded, and their provisions must be liberally interpreted, whenever necessary to accomplish the purpose of their creation. There was no departure from these principles of construction in Trustees v. Strong, 60 N. Y. 59, and the other cases involving the jurisdiction of the Long Island towns over the adjacent tide waters, to which our attention has been called. In the Brook haven Case the right of the town to a portion of the waters of the Great South bay and the lands thereunder was upheld because they were expressly included within the boundaries of the grant, and their control was a part of the royal prerogatives conferred, and the authority of the town over them had been recognized by both colonial and state legislation. It must therefore be held, we think, that the crown did not part with the title to these lands when the manor of Pelham was created, and that it became vested in Palmer by the grant to him in 1763.

2. The patent to Palmer was liable to forfeiture for a failure to pay the quitrent reserved, and the several acts of the legislature authorizing the sale of the lands because the rent was in arrear were sufficient to terminate the estate of the patentee, and reinvest the sovereign with the original title. Notwithstanding the grant, the king still had the reversion now called the ‘escheat,’ and there was the obligation of fealty on the part of the grantee, which, if broken, would also cause the estate to revert; and in all such cases, if rent was reserved, it became a rent service, and the estate granted a qualified or conditional fee. In the feudal economy rent had a twofold quality. It was regarded as something issuing out of the land as a compensation for the possession, and also as an acknowledgment by the tenant to the lord of his fealty or tenure. A quitrent was so called because the tenant thereby went quit and free of all other services. 1 Woodf. Landl.& T. 375-377. In a case of a rent service, its payment was a condition subsequent, implied in law, and essential to be observed, in order to insure the continuance of the grant. After the enactment of the statute of quia emptores in 18 Edw. I., no such condition would be implied in a grant in fee, between individuals. Every freeman might then sell his lands at pleasure. The system of subinfeudation was destroyed, and feudal restraints...