People v. Mauran , 5 Denio 389 ( 1848 )

■ By the Court, McKissock, J.

The first question that arises in this case is, whether an action of ejectment will lie for the premises in question? They are situated below high water mark on the shore of New-Yorlc bay. To determine that, it will not be necessary to decide whether that action can in any case be maintained by the people for lands under the navigable waters of the state. For whatever was originally the condition of these premises in that respect, they had before suit brought been transformed by human labor into dry land. It might as well be said of the property in Water, Front and South-streets in the city of New-York, and other places similarly formed, which have been the subjects of private property for years, that they are lands under water. There can be no doubt that the action would be maintained. And the plaintiffs having shown a prima facie right to recover, the judge was correct in refusing to nonsuit at the request of defendants.

The remaining inquiry arises on the point, whether the letters patent, together with the deed from the patentees to the defendants produced by them were a bar to the action. The plaintiffs object that the grant from the commissioners of the land office is void, because it was made by patent and not by deed. The first section of the act concerning the commissioners Á the land office, (1 R. L. 292,) provides, that they shall have power “ to direct the granting of unappropriated lands within the state according to such powers and directions as shall be from time to time prescribed by law.” By the 4(.h section of the same act it is declared “ that it shall be lawful for the said commissioners to grant so much of the lands under the waters of navigable rivers, as they shall deem necessary to promote the commerce of the state; provided always that-no such grant shall be made to any person whatever other than the proprietor or proprietors of the adjacent lands.” Though these sections vary somewhat as well in phraseology as in the subject of them—the first authorizing the commissioners to direct the granting of unappropriated lands, while the second gives them power to grant certain lands under the waters of navigable rivers, it is to be seen whether the same form of conveyance is not sufficient in either case, It has never been doubted but that in the case of unappropriated lands, the proper mode of conveyance was by letters patent under the seal of the state. That was the manner of making grants by virtue of the prerogative of the British crown. And the people by their right of sovereignty, being the ultimate proprietors of all the lands of the state, have adopted the same mode of alienation. By the statute, the commissioners of the land office are constituted the agents of the state, to convey the lands under the waters of navigable rivers in certain cases. Hence that power is to be exercised, and every grant under it is to be the proper act and deed of the principal; and it would be difficult to devise any mode more simple and effectual, than that by ordinary patent. Besides, these lands under water are as much the property of the state, subject to the public servitude for navigation, as other unappropriated lands. There seems to be no adequate reason for supposing that the legislature intended that the formei should be conveyed by the deed of the commissioners, while the latter were to be granted by patent, especially when it is seen that in both cases the power to cause the conveyance to be made, resides in the same body—the commissioners. It is probably true, that these lands might have been granted by the commissioners’ deed; but I do not think that where they adopt the method of conveying by patent that the act is void. Moreover the commissioners have from the commencement of the government to the present time, used such a conveyance in similar cases ; and of this the court may take judicial notice. The patents are matters of public record. We learn from this source the construction put on the statute by the high officers oí the state,* including the governor and attorney general, in the times of the first enactment on the subject. This is important authority on the point, and much superior to old books and the exposition of writers cotemporaueous with ancient statutes, which Coke denominates benedicita expositio. The most eminent writers lay great stress on the construction put upon statutes by sages and writers who lived about the time of their enactment. (Dwarris on Statutes, 693.) This original interpretation sustained by a practical commentary down to the present time, together with the argument to be drawn from the fact that it is in conformity with the spirit and intention of the statute, must have controlling influence. There is, therefore, in my opinion, no valid objection to the manner of the grant in the present case.

It is also objected that the patent was void for not excepting gold and silver mines, as directed by the statute. The act requires that patents shall contain an exception and reservation of such mines. (Id. § 5.) To this it may be answered in the first place, that if, as is contended by the plaintiff’s counsel and as is admitted above, it was lawful for the commissioners to have conveyed lands under water by their deed, then the provision in relation to gold and silver mines does not, nor did the legislature intend it should relate to such lands; for the provision applies, by its terms, only to patents. For inasmuch as the statute provides that the commissioners shall have power to direct the granting of unappropriated lands, thereby clearly indicating that it should be done by patent; it also declares that it shall be lawful for them to grant the lands under the waters of navigable rivers, manifestly leaving it to the determination of the commissioners whether to use their own deed or a patent. It follows that there was no intention to provide for the exception of those mines in grants of lands of the latter description. If there had been, it would not have been left to depend on the form of conveyance that might be adopted Here also we have light reflected upon the question from the conduct and acts of the eminent men of the government cotemporaneous with the statute. By an examination of the records of the office of the secretary of state down to the yeai 1832, it appears no patent for lands under water had ever con tained the exception referred to. Moreover the min.eralogical history of the world affords no evidence of the discovery of gold or silver mines beneath the waters of navigable rivers, and there is no reason to expect such a discovery. With this we must suppose the legislature to have been acquainted, and we cannot, therefore, presume that so useless a provision would have been made as one to guard against an event not contemplated as within the reach of possibility.

But the commissioners in the present case were the agents of the state, and hence if their acts are to be estimated according to the rules applicable to private agents, this patent may be good for the lands and void for the mines, if any should hereafter be discovered, the two subjects being easily separable. The rule in such cases is that if an agent do what he is authorized to do, and more, the execution is good for what is warranted and bad for the excess, provided such excess is manifestly distinguishable. (Perkins on Convey. 187; Adams v. Adams, Cowper, 651; Livermore on Agency, 101, 102; Story on Agency, §§ 166,168, 2d ed.) And that the principle of the rule is applicable to grants by patent, appears by the case of Patterson v. Jenks, (2 Peters, 216, 236.) It was there held that a patent from the state of Georgia for lands partly without and partly within the limits of the lands claimed by the Indians, was good for the former while it was void for the latter.

It was also insisted that the patent was not evidence of a grant without proof that the notice of the application therefor had been.given as provided by the statute, and also that the grantees were the proprietors of the adjacent lands. These objections are untenable. The principles governing here have no analogy to the rules applicable to the cases to which we were referred on the argument, such as purchasers under sales for taxes and the like. Parties claiming under such proceedings are bound to show the existence of all the prerequisites necessary to give the officer under whom they purchased authority to sell, for the reason that he has but a special authority to do any act of that sort. On the contrary, it has at all times been held that a patent was prima facie evidence that it was regularly issued—that all things preliminary had been performed and complied with; the legal presumption in such case being that public officers have done their duty omnia solemniter acta. (Ross v. Reed, 1 Wheat. 482,487; Bouldin v. Massie's heirs, 7 id. 122, 149; Jackson v. Marsh, 6 Cowen, 281.) The description of the premises in this grant bounds them on the lands of the grantees or their road, which is conclusive of the fact of the proprietorship of the adjacent lands for the purposes of the present action.

It was finally objected by the plaintiff’s counsel that the patent was void, because the grantees had no authority to take a grant of land under water; and more especially because it did not appear that the commissioners to lay out their road had ever done so over the premises granted, and because the authority vested in the commissioners of the land office was improperly exercised by this grant to a turnpike company.

A patent being a record, it is a principle well settled that unless it is absolutely void on its face it cannot be assailed in a collateral action, but only in a proceeding directly for the purpose ; and this is even true though it were issued by mistake, or obtained by fraud or misrepresentation. (Jackson v. Marsh, supra ; Jackson v. Lawton, 10 John. 23; Jackson v. Hart, 12 id. 82; Bagnel v. Broderick, 13 Peters, 436, 450.) Though it does not appear on the face of the patent that the grantees are a turnpike company, and that the premises lay adjoining their road, still I know no rule of law by which it is on that account absolutely void. It is one of the ordinary powers of a corporation to take, hold and convey real estate; and whetner this corporation had such power or not, must be determined by its charter and the acts amending the same, and by any other statutory provisions relating to the subject generally. This would certainly produce an inquiry altogether outside of the nstrument itself. It is still less an intrinsic objection to its validity, that the power of the commissioners was improperly exercised in granting lands to a turnpike company. The truth of the legal proposition embraced in this objection is by no means a consequence of the fact stated. The question must be determined by the answer to the inquiry whether the commissioners had the general authority to make the grant, and not whether they acted with proper discretion or not; and what may or may not tend to the promotion of commerce is certainly by no means at all times self-evident. Admitting, for the present, that the question of the validity of the patent on account of the-first objection stated by the court could be determined in the present suit, it by no means follows that it was void for the reasons stated. For although the statute provides that no grant shall be made to any other than the proprietor of the adjacent lands, yet such grant is not in terms declared void for that reason. The revised statutes declare that a grant to any other than an adjacent proprietor shall be void. A strong inference arises out of this provision that such a consequence would not have followed under the previous legislation on the subject. (1 R. S. 208, § 67.) Besides, the grantees were at the time a corporation having a right of perpetual succession, and had possession of the adjacent land ; for though the road only ran to high water mark, and the description in the grant speaks of low water mark, still the premises are described as bounded on the end of the turnpike road. From this I infer that the present case did not come within the reason of this provision of the statute, which was intended to be precautionary and directory—the main object being to prevent the evil of depriving any one of the common right of a free passage from his own lands to the waters of adjacent navigable rivers.

But it follows from the principles already laid down, the evidence that the grantees were not the proprietors of the adjacent lands being extrinsic, that even if that were sufficient to authorize a judgment vacating the patent in a regular proceeding for that puipose, still it can produce no correspondent result here in a collateral action. A patent, valid on its face cannot be affected but by regular course of pleading on bill or scire facias. In such cases an objection cannot be set up in actions of trespass or ejectment.. (Bagnell v. Broderick, and Jackson v. Lawton, supra.) This rule is not founded merely on a principle of evidence regarding the admissibility of testimony, but on the principle that a record cannot be overthrown, except by a judgment of a court on an issue upon the precise question of its validity. The fact, therefore, that in the present case the evidence was before the court, and was produced by the defendants themselves, did in no respect alter the rule. To use the language of the chief justice of Kentucky in the case of Blescoe's devisees v. Wells, (4 Bibb, 329,) a patent “ cannot be avoided by matter dehors the grant. The commonwealth cannot be divested of her title except by record, and she cannot be reinvested except by matter of record.” (See also Com. Dig. tit. Patent, T. 1 to 8.) No evidence from without can affect a record except it be put directly in issue. “ It importeth in itself such absolute verity that it cannot receive any trial by witness or by jury, but only by itself.” (Co. Litt. 117,b; id. 260, a.) The cases of Polks Lessee v. Wendal, (9 Cranch, 87,) and Jackson v. Stanly, (10 John. 133,) are neither of them opposed to the foregoing doctrine. In the first, the slate of North Carolina had granted lands which had been ceded to the United States, which she had no general power to do, more than to convey lands in the state of Virginia, and could only make a valid grant on the existence of certain prerequisites, when she conveyed to the United States ; and proof was allowed to show whether these conditions precedent had been performed or not. In the other case, evidence was given to show that a paten. was intended to have been given to Daniel Huntington and not to David, but there had been an act of the legislature reciting the mistake, and declaring that (he title should vest in Daniel.

Neither was the effect of the dissolution of the turnpike company such as was declared by the circuit judge. It was assumed that the company took an estate under the patent and conveyed the same to the defendants—during their charter. It is unnecessary to inquire what would have been the result, if the company had been dissolved while holding the premises. The grant to the Richmond Turnpike Company was to them and their assigns in fee; and whether they could have held it against proceedings by the state, is of no consequence to the present question. They had, at the worst, but a defeasible estate in fee; and that they had the right to convey is a legal proposition that will not Be disputed. Every corporation may convey whatever they have taken, whether able to hold it or not. The consequence is, that the grantees of the company took the estate as they held it, absolute or defeasible as might be. Corporations have a fee simple for the purposes of alienation, and a determinable fee for the sake of enjoyment. (2 Kent, 281; Preston on Estates, 250.) So that the grantees of the corporation in the present case may stand in a better, but not in a worse-condition than the grantors. Hence the defendants, even if they hold a defeasible estate, will continue to hold it, as an alien grantee holds, till office found*

New trial ordered.