Rumsey v. New York & N.E.R. Co.
| Decision Date | 27 October 1891 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | RUMSEY et al. v. NEW YORK & N. E. R. CO. |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, second department.
Action by Harriet S. Rumsey and others against the New York & New England Railroad Company to restrain the operation of its road upon lands claimed to belong to plaintiffs. Defendant appeals from a judgment of the general term affirming a judgment for plaintiffs entered upon a decision made at the Dutchess special term. Affirmed.
W. C. Anthony, for appellant.
H. H. Hustis, for respondents.
This action was brought to restrain the defendant from operating its railroad upon lands claimed to belong to the plaintiffs. The defendant's road, at the village of Fishkill Landing, was constructed, in the year 1881, in the Hudson river, upon lands under water, in front of uplands owned by the plaintiffs. On the 3d day of March, 1885, the governor of the state, pursuant to a resolution of the commissioners of the land-office, issued to the plaintiffs a patent of the lands under water in the Hudson river in front of their uplands, being about 1,000 feet on the shore-line and along the bank of the river, and about 2,000 feet from highwater mark to the channel bank of the river, excepting therefrom the rights of the New York Central & Hudson River Railroad Company. It is contended that the plaintiffs obtained no valid title to the lands under water by reason of this patent, for the reason that it was issued under and pursuant to chapter 283 of the Laws of 1850, which act provides for the appropriation of public property to a private use, and because it is not certified to have passed the assembly by a two-thirds vote. The act provides that ‘the commissioners of the land-office shall have power to grant, in perpetuity or otherwise, so much of the lands under the waters of navigable rivers or lakes as they shall deem necessary to promote the commerce of this state, or proper for the purpose of beneficial enjoyment of the same by the adjacent owner; but no such grant shall be made to any person other than the proprietor of the adjacent lands, and any such grant that shall be made to any other person shall be void.’ No question is made but that the certificate of the presiding officer of the senate is in due form. That of the assembly is as follows:
The statute provides that the assent of two-thirds of the members elected to each branch of the legislature is requisite to every bill appropriating the public moneys or property for local or private purposes; and no bill shall be deemed to have passed by the assent of two-thirds of the members elected to each house, unless so certified by the presiding officer of each house. 1 Rev. St. (7th Ed.) p. 432, §§ 2, 3. The act in question is doubtless one which required the assent of two-thirds of the members elected to each branch of the legislature, and the certificate of the presiding officer of the assembly is defective in not showing whether it received the assent of a majority or two-thirds of the members elected. The act, as published in the Session Laws states that it was by a two-thirds vote. This statement is made in accordance with the provisions of chapter 306 of the Laws of 1842, which makes the same presumptive evidence that the bill was certified by the presiding officers as having been passed by the assent of two-thirds of the members elected to each house. This presumption, however, may doubtless be overcome by the production of the original certificate. The certificate produced, however, does not state that it was not passed by a two-thirds vote. It merely states that it was passed; that the two-thirds of the members elected to the assembly were present.The certificate, therefore, independent of the statute referred to, would not overcome the presumption created by the statement appearing in the Session Laws. Under the statute, the act shall not be deemed to have been passed by the assent of two-thirds, unless the presiding officer so certifies; but this statute evidently contemplates that the certificate be made in due form, free from defects and clerical errors. Such a certificate would doubtless be conclusive; but to hold that a defective certificate, one that fails to state the fact either way, is under the statute conclusive, and overcomes the presumption created by the statement appearing in the Session Laws, is giving the statute an interpretation which we think was never intended. May we, under these circumstances, look at the journal of the assembly for the purpose of...
To continue reading
Request your trial
-
State Ex Rel. Richards v. Moorer
...office to grant lands upon navigable waters for the promotion of state commerce and the enjoyment of adjacent owners (Rumsey v. Railway Co., 130 N. Y. 88, 28 N. E. 763), upon the President of the United States to reduce revenue and equalize duties on imports, and to suspend by proclamation ......
-
Union Bank of Richmond v. Commissioners of Town of Oxford
...of Chenango, 8 N. Y. 317; People v. Allen, 42 N.Y. 379; People v. Commissioners of Highways of Marlborough, 54 N.Y. 276; Rumsey v. Railroad Co., 130 N.Y. 88, 28 N.E. 763; People v. Purdy, 2 Hill, 31; Purdy v. People, Hill, 384; De Bow v. People, 1 Denio, 9; Bank v. Sparrow, 2 Denio, 97; War......
-
State ex rel. Hynds v. Cahill
...People v. Hills, 35 N.Y. 449; Bank v. Sparrow, 2 Denio, 97; People v. Allen, 44 N.Y. 379; People v. Commissioners, 54 N.Y. 276; Rumsey v. R. R. Co., 130 N.Y. 88. N. C. --Trustees v. McIver, 72 N. C., 76; Scarborough v. Robinson, 81 N. C., 409; State v. Patterson, 98 N. C., 660; Bank v. Comm......
-
Richmond v. Comm'rs Op Town Op Oxford
...Chenango, 8 N. Y. 317; People v. Allen, 42 N. Y. 379; People v. Commissioners of Highways of Marlborough, 54 N. Y. 276; Rumsey v. Railroad Co., 130 N. Y. 88, 28 N. E. 763; People v. Purdy, 2 Hill, 31; Purdy v. People, 4 Hill, 384; De Bow v. People, 1 Denio, 9; Bank v. Sparrow, 2 Denio, 97; ......