Robins Island Preservation Fund, Inc. v. Southold Development Corp.

• Decision Date: 23 March 1992
• Docket Number: No. 220,D,220
• Citation: 959 F.2d 409
• Parties: ROBINS ISLAND PRESERVATION FUND, INC., Plaintiff-Appellant, v. SOUTHOLD DEVELOPMENT CORPORATION, Defendant-Appellee. ocket 91-7490.
• Court: U.S. Court of Appeals — Second Circuit

Page 409

959 F.2d 409

ROBINS ISLAND PRESERVATION FUND, INC., Plaintiff-Appellant, v. SOUTHOLD DEVELOPMENT CORPORATION, Defendant-Appellee.

No. 220, Docket 91-7490.

United States Court of Appeals Second Circuit.

Argued Sept. 25, 1991.

Decided March 23, 1992.

Bertram E. Hirsch, Floral Park, N.Y., for plaintiff-appellant.

Samuel Kirschenbaum, Garden City, N.Y. (Ira Levine, Kirschenbaum and Kirschenbaum, P.C., of counsel), for defendant-appellee.

Before: MESKILL, WINTER and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

This appeal stems from a property dispute encompassing events which took place over two centuries ago when the State of New York seized land belonging to individuals who refused to support the American Revolution. The property at issue is Robins Island, an island of approximately 445 acres in the Peconic Bay of Long Island. In 1779, Parker Wickham, then the owner of Robins Island, was stripped of title to this property as punishment for his continued allegiance to the British monarchy.

Plaintiff-appellant Robins Island Preservation Fund ("RIPF"), is a non-profit corporation dedicated to the preservation of Robins Island in its natural state. RIPF alleges that it is the rightful owner of an approximate 75 percent undivided interest in Robins Island, which it claims as successor-in-interest to Parker Wickham, whom RIPF charges was unlawfully deprived of title and possession. Specifically, RIPF claims that New York's Act of Attainder of 1779, pursuant to which the State of New York confiscated and sold the island, was invalid, because at the time of its passage New York had no sovereignty over Robins Island, which was then under British control. RIPF further argues that even if the Act of Attainder were valid in general, it was invalid with regard to Robins Island because New York took physical possession of Robins Island only after the enactment of the Treaty of Peace of 1783 between Great Britain and the United States, which prohibited future confiscations of British and loyalist property. As an alternative theory, RIPF contends that the Act of Attainder of 1779 seized only a life estate and not a fee simple interest in Robins Island, title to which passed on Parker Wickham's death to his son, Joseph Parker Wickham.

RIPF initiated the underlying action in the United States District Court for the Eastern District of New York (Leonard D. Wexler, Judge ), seeking, inter alia, a declaration of ownership rights in Robins Island against defendant-appellee Southold Development Corporation ("SDC"). SDC is a New York corporation which plans to develop Robins Island. SDC traces its title to its predecessors-in-interest, Benjamin Tallmedge and Caleb Brewster, who in 1784 purchased the island in fee simple from the State of New York. SDC asserts that the seizure and sale of the island during the American Revolution was valid. In addition, SDC initiated a third-party complaint against the State of New York seeking damages in the event of loss of title.

RIPF and SDC cross-moved for summary judgment. Additionally, New York moved for summary judgment against SDC on the third-party complaint. The district court granted summary judgment for SDC and New York, holding, inter alia, that the Act of Attainder of 1779, pursuant to which New York acquired title to the island, was valid and that the action was barred by New York's statute of limitations, the doctrine For the reasons set forth below, we affirm the judgment of the district court.

                of laches, and public policy.   See Robins Island Preservation Fund v. Southold Dev. Corp., 755 F.Supp. 1185 (E.D.N.Y.1991).   RIPF appeals the grant of summary judgment to SDC
                

BACKGROUND

This action brought by RIPF requires us to revisit the events surrounding our nation's birth in revolution. However, the events of the American Revolution which we must consider are not widely celebrated today. These events relate to the systematic confiscation of property belonging to those Americans who refused to join the Revolution. We are asked to examine the property rights of persons as they existed over two hundred years ago--when the newly formed states were fighting both British troops and British sympathizers, when individuals could be convicted without trials, and when ancient doctrines controlled the laws of property. Because the underlying action is deeply rooted in historical events, we begin by examining the circumstances surrounding the ownership and confiscation of Robins Island in the eighteenth century.

A. Parker Wickham's Inheritance

In 1715, Joseph Wickham, Sr. purchased Robins Island. In 1734, he devised the island to his son Joseph Wickham, Jr. "and to the male heirs of his body lawfully begotten or to be begotten forever." This devise created an "estate tail" by which the devisee, and subsequently his male heirs, would hold only a "fee tail" interest in the property, which would pass at death to the next directly descended male heir. Using this means of conveyance, Joseph Wickham, Sr. intended to pass title to Robins Island from generation to generation in a direct and perpetual line of descent.

At the death of his father, Joseph Wickham, Jr. took possession of the estate. Upon his death in 1749, the land passed to his eldest son, Parker Wickham.

B. The Act of Attainder

Parker Wickham was a "loyalist" during the American Revolution. Loyalists were those colonists who maintained their allegiance to the King of Great Britain. This was not unusual in New York which, among the original thirteen colonies, had the largest number of inhabitants sympathetic to the British monarchy. The pro-Crown sympathies of New York's large loyalist population facilitated the capture and occupation by British troops of most of the southern portion of the state, including Long Island, in 1776. Consequently, Robins Island remained under British control for the remainder of the war.

Perceiving a threat to the Revolution, American patriots clamored for measures to punish loyalists. In response, the Continental Congress declared on June 24, 1776, that the property of all adherents to the Crown would be liable to confiscation. See Allan Nevins, The American States During and After the Revolution 1775-1789, at 268 (1969). Following this declaration, New York, under intense pressure from patriot citizens, enacted a series of similar measures resulting in the seizure of loyalist and British property and the disenfranchisement of all persons who either had refused to recognize the authority of the revolutionary government or had aided the British. See id.

These measures did not, however, satisfy the more zealous patriots, many of whom were members of the newly convened New York State Legislature. Bowing to intensified popular pressure, the New York State Legislature on October 22, 1779 passed "An Act for the forfeiture and sale of the estates of persons who have adhered to the enemies of this state" ("Act of Attainder"), commonly known as the Confiscation Act, which declared Parker Wickham and fifty-eight other individuals ipso facto convicted of "adherence" to the British. See Act of Attainder of October 22, 1779, 1779 N.Y.Laws 3rd Sess., ch. 25 at art. 1. As punishment, all property owned by the "attainted" individuals was declared to be immediately forfeited to the State of New York. See id.

C. The Act to Abolish Entails of 1782

As the war drew to a close, the American states turned their attention toward eradicating the more offensive vestiges of aristocracy brought to the colonies by wealthy British settlers. An early target was the "estate tail." The estate tail, or "fee tail," was a freehold estate in which there was a permanently fixed line of inheritable succession, strictly limited to the natural children of the grantee or devisee. The use of the estate tail to keep ancestral lands in one family had provided landed British aristocracy with a basis of social and political power seen as incompatible with either the ideals underlying the American Revolution or the social conditions in the new states. See Cornelius J. Moynihan, Introduction to the Law of Real Property § 6, at 37 (2d ed. 1988) ("Moynihan"); Gregory S. Alexander, Time and Property in the American Republican Legal Culture, 66 N.Y.U. L.Rev. 273, 295-302 (1991).

The New York State Legislature abolished the estate tail in 1782. In so doing, the Legislature provided:

That in all cases, wherein any person or persons would, if this law had not been made, had been seized in fee-tail, of any lands tenements heriditaments, such person or persons shall, in future, be deemed to be seized of the same in fee-simple.

Act to Abolish Entails of July 12, 1782, 1782 N.Y.Laws 6th Sess., ch. 2 at art. 1. The effect of this Act was to convert all estates tail into estates in fee simple. In 1786, New York passed an almost identical "Act to Abolish Entails" whose only difference lay in curing ambiguities created by omission in the former enactment. See Act to Abolish Entails of February 23, 1786, 1786 N.Y.Laws 9th Sess., ch. 12.

D. The Treaty of 1783

While the attention of the fledgling states was focused on domestic reforms such as these, formal hostilities between the United States and Great Britain concluded. The Provisional Treaty of Peace ("Provisional Treaty"), was signed by the two countries on November 30, 1782 and ratified by Congress on April 15, 1783. See Provisional Treaty of Peace, Nov. 30, 1782, U.S.-Gr.Brit., 8 Stat. 54. The Definitive Treaty of Peace ("Treaty of 1783" or "the Treaty"), which was almost identical to the Provisional Treaty, was concluded on September 3, 1783. See Treaty of Peace, Sept. 3, 1783, U.S.-Gr.Brit., 8 Stat. 80. Articles Five and Six of the Treaty of 1783 provided:

Article 5th

It is agreed that the Congress shall earnestly recommend it to the Legislatures of the respective States, to provide for the Restitution of all Estates, Rights and Properties, which have been confiscated...