Atkinson v. Bowman , 5 N.Y. St. Rep. 46 ( 1886 )

Barnard, P. J.:

The facts in this case are undisputed. Eaton & Hopkins bought a tract of land, in 1651, of the Indians. This tract is now the town of East Hampton. James, Duke of York, owned the entire island, by grant from King Charles, second. The governor-general, Nichols, under James, Duke of York, ratified the purchase. This patent recites that the town is in possession of “ several freeholders and inhabitants,” who have purchased the land, and confirms the purchase unto the purchasers to a justice of the peace and six others, named “as patentees for and in behalf of themselves and their associates, the freeholders and inhabitants, of the said town, their heirs, successors and assigns.”

By the same charter the “said patentees and their associates” were granted “ all the privileges belonging to a town within the government.” The patent or charter of Nicholls was given in 1666, and in 1686 Captain-General Dongan, under James, Duke of York, who had then become King of England, granted a charter to the same persons as were named in the Nicholls patent. This Dongan charter also recites that the patentees were acting “for and in behalf of themselves and their associates, the freeholders and inhabitants of the town of East Hampton.” A board of trustees is created by the charter. This board included the patentees under the Nicholls charter, and adds others,'and conveys all the lands of the town to the new board as “trustees of the freeholders and commonalty of the town of East Hampton and their successors.” This grant was one to the freeholders and inhabitants of the town. It was to be in trust for the use of the inhabitants of the town. (Trustees of East Hampton v. Kirk, 68 N.Y., 459; S. C., 84 id., 216.)

Whatever use or possession was made by what are termed the proprietors from the charter, was entirely useless for any purpose. The allotments made in severalty rested on a sound basis of title. This was the. grant from the crown to the town, and the town allotment to the individuals, who thereafter held in severalty. The unallotted lands continued to belong to the town, and the defendant’s title thereto from the town is the only title.

The Montauk bill is an entirely different oue. It had not been acquired by the town at the date of the Dongan charter, and the town was authorized to get a title. Subsequently, no doubt, one was obtained, and it had been used as private property for the purposes of pasturage for very many years. This was an allotment to individual uses, to all legal intents and purposes.

The judgment should, therefore, be reversed and a new trial granted, costs to abide event.

Pratt, J., concurred.

Judgment reversed and new trial granted, costs to anide event.